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Published online by Cambridge University Press: 28 July 2009
The object of this paper is to throw some light on the attitude of the courts to exemption clauses and to find out whether the difference between the Sudan and England in some of the relevant factors such as economic conditions, literacy and business awareness had led to results different from those achieved in England. The case-law available does not permit a comprehensive study of this interesting area of the law.
page 119 note 2 The latest Survey Reports issued by the Ministry of Education give the literacy figures as being 27.6% among males and 6.6% among females, i.e. an average of 17.1%.
page 119 note 3 Reference here is to English legal rules which have been consistently followed since about 1917, see Dun, C.J., in Antonius Saad v. Aziz Kfouri (1919), S.L.R. Vol. I, 162, at p. 167. Also see Mansour El Shouehi v. Abu Fatma Sherif, S.L.R. Vol. I, 204, at p. 208, and OWEN, J., in Katina Bamboulis v. Basil Bamboulis (1954), Cases in the Court of Appeal and the High Court 76, at p. 80.Google Scholar
page 120 note 1 See C.J.O., 1929, s. 9, which reads: “In cases not provided for by this or any other enactment for the time being in force the Court shall act according to justice, equity and good conscience.” This section was the instrument used to justify the application of English common law rules in the Sudan.
page 120 note 2 See Mansour El Shouehi v. Abu Fatma Sherif, supra; Sasso Bracale v. Mohd Ahmed Abdel Magid, AC-CA-App.-3–1930, unreported.
page 120 note 3 Chitty on Contract, 22nd ed., Vol. I, para. 572, p. 250.
page 120 note 4 See Cheshire & Fifoot, The Law of Contract, 6th edn., p. 112.
page 120 note 5 L'Estrange v. Graucob, [1934] 2 K.B. 394.
page 120 note 6 Curtis v. Chemical Cleaning & Dying Co., [1951] I K.B. 805.
page 119 note 7 Chitty on Contract, op. cit., para. 570, p. 249.
page 120 note 8 [1930] I K.B. 41.
page 121 note 1 LordHansworth, M.R., at p. 46.
page 121 note 2 [1930] I K.B. at p. 49.
page 121 note 3 Richardson Spence v. Rowntree, [1894] A.C. 217, where LORD ASHBOURNE said at p. 221: “The ticket in question in this case was for a steerage passenger—a class of people of the humblest description, many of whom have little education and some of them none. I think having regard to the facts here, the smallness of the type in which the alleged conditions were printed, the absence of any calling of attention to the alleged conditions and the stamping in red ink across them, there was quite sufficient evidence to justify the learned judge in letting the case go to the jury.” See further Roe v. Naylor, [1917] I K.B. 712 and Treitel, Law of Contract, pp. 134–135.
page 122 note 1 It has been argued that the illiterate person should be bound by the document because he would not be in a position to realize whether it is written in Arabic (in which he should be literate according to Thompson's case) or in some other language.
page 122 note 2 Until the early '50s, railway tickets issued by private transport corporations, cinema tickets, notices displayed in stores, etc., were all printed in English.
page 122 note 3 S.L.R. Vol. I, 169 (HC-CS-173–1920).
page 122 note 4 Apart from this issue the facts of the case are not relevant to the present discussion.
page 122 note 5 At p. 181.
page 123 note 1 The logic behind the decision becomes difficult to see if one realizes that only three years before the present decision, the Court of Appeal had, in the case of Gellatly Hankey *** Co. v. Abdel Nur Ibrahim, AC-App-21–1917, decided that “When a document might have been written in a language which the appellant understood, and was written in one which he did not understand the burden of proof of showing that the appellant understood the document lies on the respondent.” (Per Sterry, C.J.)
page 123 note 2 Mr. Treitel, op. cit., p. 134, appears to suggest that a disability, like illiteracy or blindness, known to the other contracting party may deprive the clause of its effect—Richardson and Spence v. Rowntree (supra, p. 121) per LordAshbourne at p. 221. But see Chitty, op. cit., s. 572, p. 250.
page 124 note 1 S.L.R. Vol. I, 169.
page 124 note 2 Unreported decision—HC-CS-145–1929.
page 124 note 3 P. 2 of the case record.
page 124 note 4 The judgment of the Court of Appeal is also unreported: AG-CA-App-3–1930, coram NigelDavidson, HamiltonGrierson and David-Devis, JJ.
page 124 note 5 See C.J.O., 1929, s.9.
page 125 note 1 See p. 1 of HALFORD, J.'s, judgment where he said: “I do not question the defendants' bona fides. They gave their evidence clearly and unhesitatingly and I have no doubt whatsoever that they thought the Fiat 4 Cylinder engine was very much more powerful than it subsequently proved itself to be. On the other hand I am equally certain that Mr. Berti never intended them to believe that.” In view of this statement one wonders why the contract was not held to be void for mistake. Neither of the parties at any time really fully understood the intentions of the other. If the learned judge believed that both parties were telling the truth then one would find it extremely difficult to reach any conclusion other than that the seller was offering something for sale and the buyer was offering to buy something completely different. It is doubtful whether any real or apparent meeting of the wills ever occurred. See Raffles v. Wischelhaus (1864), 2 H. and C 906 and Scriven Bros. & Co. v. Hindley & Co., [1913] 3 K.B. 564.
page 125 note 2 P. 3 of the judgment record.
page 125 note 3 The fashion in the Sudan courts at this time was to equate English law with “justice, equity and good conscience”; see Licos v. Ghali Mikhail [1915] S.L.R. 87, Costi Loiso v. Bittar [1909] S.L.R. 48, Mansour el Shouehi v. Abu Fatma Sherif [1920] S.L.R. 204, Mikhael E. Saba v. Phillip Philippedes [1917] S.L.R. 102.
page 126 note 1 (1877) 2 C.P.D. 416 at p. 221, later followed in L'Estrange v. Graucob (supra, p. 120) and generally accepted as an accurate statement of the law, see Chitty on Contracts, 22nd ed. para. 692, p. 292, Cheshire & Fifoot, Law of Contract, 6th ed., p. 112.
page 126 note 2 Per Blackburn, J., in Harris v. Great Western Railway (1876), I Q.B.D. 515, at p. 530.Google Scholar
page 127 note 1 Chitty, op. cit., para. 572, p. 250.
page 127 note 2 [1920] P.D. 22.
page 127 note 3 Ibid.., p. 24.
page 127 note 4 Op. cit., p. 130, italics added.
page 127 note 5 [1934] 2 K.B. 394.
page 127 note 6 Op. cit., para. 572, p. 250.
page 128 note 1 It is perhaps worth noting that the defendants appealed to the Court of Appeal (AC-CA-App-3–1930) but their appeal was dismissed. The court, without even referring to the illiteracy issue, decided that the defendants were bound “by the terms of the contract which they signed”.
page 128 note 2 (1958), S.L.J.R.45.
page 128 note 3 It is most unfortunate that the text of the decision of the District Judge could not be traced. The decision does, however, pose some interesting questions about stare decisis. The decision of the learned District Judge completely ignored the relevant precedents and dealt with the issue as if it were arising for the first time. Was he unaware of the local precedents, or did he intentionally choose to depart from them?
page 128 note 4 (AC-REV-42–58) M. A. ABU RANNAT, C.J., and BABIKER AWADALLA, J.
page 128 note 5 At p. 47.
page 129 note 1 This is particularly unfortunate because this was the first time the question came for decision before the Court of Appeal after it was fully Sudanised and more than five years after the last British judge left it.
page 129 note 2 Unreported decision—AC-REV-416–1964. Judgment delivered in May, 1965.
page 129 note 3 The full records of the judgments in the High Court and the District Court could not be traced.
page 129 note 4 P. 3 of the Judgment Record.
page 130 note 1 Op. cit., p. 3.
page 130 note 2 (1958), S.L.J.R. 45.
page 130 note 3 At p. 47.
page 130 note 4 The authority of this dictum vis-à-vis the previous decisions of the High Court in Negib Haddad and Sasso Bracale, again raises the inevitable question about stare decisis.
page 130 note 5 Supra.
page 131 note 1 Davis Motors, Dodge & Plymouth Co. v. Avell (1956), Tex. Civil Appeals 887; International Harvester Co. of America v. Bean (1914), 169 S.W. 549, 159 Ky. 842.
page 131 note 2 Vaughan's Seed Store v. Stringfellow, (1908), SO 410 Supreme Court 48; Bell v. Mills (1902), 14 N.W. Supreme Court 86.
page 131 note 3 (1960), 32 N.J. 358, 75 A.L.R. 2nd. I.
page 132 note 1 75 A.L.R. 2d. p. 29.
page 132 note 2 Ibid.., p. 21.
page 132 note 3 On this point the court quoted, among others, Chief Justice HUGHES in his dissent in Morehead v. People of State of New York, 298 U.S. 587 at p. 627, where he said: “We had frequent occasions to consider the limitations on liberty of contract.While it is highly important to preserve that liberty from arbitrary and capricious interference, it is also necessary to prevent its abuse, as otherwise it could be used to override all public interests and thus in the end destroy the very freedom of opportunity which it is designed to safeguard.”
page 132 note 4 See FRANCIS, J., Ibid.., p. 22: “But does the doctrine that a person is bound by his signed agreement in the absence of fraud, stand in the way of any relief? In modern considerations of problems such as this Corbin suggests that ‘practically all judges are Chancellors’ and cannot fail to be influenced by any equitable doctrines that are available. And he opines that ‘there is sufficient flexibility in the concepts of fraud, duress, misrepresentation and undue influence, not to mention differences in economic bargaining power’, to enable the Courts to avoid enforcement of unconscionable provisions in long printed standardised contracts.” See further Corbin on Contracts (1963) Vol. I, 128, p. 551.
page 133 note 1 In International Harvester Co. of America v. Bean, supra, the Kentucky Court of Appeals refused to give effect to an exemption clause, the language of which was “extremely technical”, on the ground that “had the consumer understood the full import of the stipulation he would not have signed the order.” (169 S.W., at P. 551).
page 133 note 2 Ibid.., pp. 28–29. This can even be said of situations where the clause is written in the native language of an illiterate signatory, viz. the Sasso Bracale type of situation.
page 133 note 3 Ibid.., pp. 24–25.
page 133 note 4 See CARDOZO, J., in MacPherson v. Buick Motor Co. III N.E. 1050; 217 N.Y. 382; International Harvester Co. of America v. Bean, supra; and Bell v. Mills (1902), 80 N.Y.S. 34.
page 133 note 5 314 Ky. 514, (1950) 235 S.W. 2d 988.
page 134 note 1 Ibid.., at p. 990.
page 134 note 2 Francis, J., in Henningsen v. Bloomfield Motors, Ibid.. p. 23: ”The traditional contract is the result of free bargaining of parties who are brought together by the play of the market, and who meet each other on a footing of approximate economic equality. In such a society ‘there is no threat that freedom of contract will be a threat to the social order as a whole. But in the present day commercial life the standardised mass contract has appeared’. The weaker party in need of goods or services is not frequently in a position to shop around for better terms, either because the author of the standard contract has a monopoly or because all competitors use the same clauses. His contractual intention is but a subjection more or less voluntary to the terms dictated by the stronger party, terms whose consequences are often understood in a vague way, if at all.”
page 134 note 2 1962 Official Text, The American Law Institute. National Conference of Commissioners on Uniform State Laws.
page 135 note 1 Section 2—302: “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.”
page 135 note 2 Section 2—316, supra.
page 135 note 3 One cannot really think of any good reason, but just let us assume that the non-availability of American law reports is such a reason.
page 135 note 4 M. S. Madkour, El Fiqh el Islami, p. 361.
page 135 note 5 M. S. Madkour, supra, at p. 466.
page 135 note 6 M. S. Madkour, supra, at p. 382.
page 135 note 7 It will be noticed here that the criterion suggested is objective and is thus different from what it is in both English and American jurisprudence.