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Sir, In assessing whether a term is unfair or unreasonable, we have to consider ALL of the following factors in a particular case OR ANY of the following factor in a particular case?
• the strength of the bargaining positions of the parties
• whether the buyer received an inducement to agree to the term
• whether the buyer knew or ought to have known of the existence and
extent of the term
• the ability of the party to insure against the liabilityThe approach by the Court is not necessarily written in tablets of stone
You seem to be of the opinion that the Courts are severely restricted in their thinking before reaching a decision in any particular case
May I suggest to you that your thinking should be along the lines of “The Courts may do anything they want, so long as it’s reasonable”
That doesn’t really tell the full story because of course the Courts are bound by the principles of judicial precedent but, to a large extent, I’m prepared to stand by that comment
With reference to your question, any single one of those 4 points may, in isolation, be sufficient for the Court to declare an exclusion clause non-enforceable
But, in another case, the Court may decide that it’s necessary to consider the full picture
Humai, may I suggest to you that you need to be less rigid and more flexible in your understanding of the niceties of the English legal system
It’s an evolving, always-changing, never-static beast and judges have phenomenal (though theoretically restricted) powers to make decisions in individual cases that may appear to lesser beings such as you and me as being incomprehensible
Get used to it … and enjoy it for what it is … an exciting, thrilling, sometimes apparently irrational world of wigs, prosecutors, advocacy, defendants and appellants.
Totally wondrous
OK?
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