ABSTRACT
In the last chapter, we looked at how terms are incorporated into contracts and the various devices employed by the judiciary to limit the scope of certain types of exclusion clauses. In time, however, judicial control of such clauses was considered too limited. Social concern regarding the exclusion or restriction of contractual liability for breach of contract by those in business to supply goods and services goes back well into the 19th century. Apart from isolated statutory measures, the legal struggle against such ‘unfair terms’ was carried on until the 1970s by the judges, who devised a variety of weapons to render such clauses inoperative, particularly where they operated against the interests of consumers in contracts for the sale of goods or supply of services. However, successes by the courts merely drove the drafters of exclusion clauses to renewed efforts to produce ‘judge-proof’ forms of words such as that which defeated the court in L’Estrange v Graucob Ltd (1934). The main problem was that the judges felt that they had no general power to strike down unreasonable exclusion clauses as being, for example, against public policy and therefore void. They felt that the concept of freedom of contract overrode such an approach.
