views expressed in the Court of Appeal in Stockloser v Johnson 27 in which the

Views expressed in the court of appeal in stockloser

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views expressed in theCourt of Appeal in Stockloser v. Johnson, 27 in which the "equity" of thecourt was also propounded, 28 seems to stand out against the general tideof decisions which justify courts in watering down the strict language of acontract, on the ground that it would be wrong and contrary to the general-[1964] 2 All E.R. 653 (Q.B.). Cf. Robophone Facilities Ltd. v. Blank, supra note 24.= Ziegel, Minimum Payment Clause Muddle, (1964] CA,.t. IJ. 108.27 [1954] 1 Q.B. 476. The view adopted is that of Romer. LJ. Id. at 495, 499 & 501.2 Id. at 492 (Denning, LJ.).Fall 1967]
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Ottawa Law Reviewnotions of justice and the public interest to enforce strictly what the partieshave apparently freely and mutually accepted.This is brought home even more clearly by the decisions and thereasoning to be found in cases of restraint of trade. Indeed the recentdecision of the House of Lords in Esso Petroleum Co. v. Harper's Garage(Stourport) Ltd. 29 shows that, even where the contract concerns or relatesto land, involving a mortgage, to which perhaps different principles mightbe thought to apply, it is still possible for the terms of a contract to berepudiated by a court and not enforced, on the ground that the contractis one in unreasonable restraint of trade, therefore against the public interestand not to be upheld despite the agreement of the parties. That was a caseconcerned with a "solus" agreement, requiring a garage proprietor to .buyand sell exclusively the fuel of a particular fuel producer. The fact that thisagreement was tied up with a mortgage on the garage in question did notrender the agreement subject to the law of mortgages, to the exclusion ofthe general law of contract. Hence the agreement had to be considered inaccordance with the ordinary principles applicable to contracts in restraintof trade, under which one of the agreements involved in the case was invalid.The language of the members of the House of Lords indicates that thoughcommercial requirements may affect the position of the law, it does notfollow that the parties are entirely free to contract as they will, withoutregard to the policy of the law, and relying completely upon the justificationof commercial convenience or commercial practice. It is always a questionof law for the court whether a particular contract may be left unhamperedby any intervention on the part of the courts.The approaches of the courts to the "penalty" and the "restraint" casesmay have different points or origin, but they are much the same. The"penalty" cases start from the proposition that parties may not imposeunconscionable or unjust demands upon each other. The "restraint" casesstem from the idea that the public interest requires that men be free to actas they will, in respect of the giving or witholding of their services, or theuse of their talents or property, subject only to the demands of legality. Butthe prohibition of unconscionable conduct and the limitations upon thepower of parties to impose restraints upon each other's conduct in futuroderive from the unwillingness of the law to permit parties to fetter themselves
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