129 A question which came to the fore in the late 1870’s was whether oral evidence could be used to qualify a written contract (1879 p. 69 and others). The majority refused to adopt a parol evidence rule. A free sifting and assessment of evicfence has then become the rule in this field. The problems arising from the use and abuse of standard form contracts did not attract much attention before the turn of the centurv. They existed mostly as standardized order sheets with usually very few- printed terms of contract, and since the general terms were seldom separated from the principal agreement itself, the question of notice and incorporation did not turn up. In one case from 1892 (p. 228) this point of issue could have been raised, but the case was decided on other grounds. The Supreme Court seems to have avoided the question. In this century cases connected with standard fbrm contracts have been frequent. Various methods of controlling the use of such standarcfized general conditions were introduced by the courts, and m the 1970’s protective legislation, particularly but not exclusively in favour of consumers, was enacted. In the Supreme Court there were often two opinions represented, a majority opinion more severe in its assessment of standard torms and a minority one more favourably disposed to this method of contracting. In a case from 1980 (p. 46) the Supreme Court finally declared standardized general conditions, particularlv when agreed upon by associations representing both parties, to be a valuable means of making contracts. Hand-in-hand with this development a change of attitude towards arbitration clauses can be noticed. In the case from 1980 just mentioned, an older, more rigorous attitude was replaced by a more favourable one as far as commercial relations are concerned. The introduction in 1976 bv legislation of a new article, a general clause (§ 36) in the Contracts Act, authorizing courts to adjust or set aside unreasonable contract terms, made restrictive attitudes as to incorporation problems less essential, and in a case from 1983 (p. 510), the Supreme Court even accepted an arbitration clause m a contract with a consumer, on account of a stipulation that the consumer’s liability for arbitration costs should be confined to half a “basic amount” (a device used for adjusting the consumer price index).’ An interesting case from 1874 fp. 89) shows that the Supreme Court found it just to set aside a clause in a rental agreement. The contract obliged the tenant, who had failed to pay the rent and therefore had had to move from the flat, to pay the rent for the remaining term of tenancy. The landlord claimed for rent although the flat had been let again at the same price. The Supreme Court held that the contract could not reasonably be construed so as to oblige the tenant to pav except when the flat was unlet or let at a lower price. This principle was incorporated in the Contracts Act of 1915 (article 37). The same restrictive construction with regard to the circumstances m the case was also used to limit the application of frustration (force-majeure) clauses (particularly the case 1918 p. 20) and, particularly exemption clauses (see e.g. case 1954 p. 573). General principles of liability cannot be set aside by vague or sweeping clauses exempting the contract partv to an excessive extent or altogether from liability in the performance of the contract. But the Supreme Court has also been aware of the necessity to preserve the balance of a contract, when an exemption clause is justified with regard to a reasonable allocation of contractual risks. Thus in a case from 1979 (p. 483) the Supreme Court upheld a clause exempting a supplier of petrol pumps from compensation for consequential loss. The seller had delivered defective pumps which he then failed to repair; as a consequence the buver had suffered loss of profit, for which he was thus not compenriic “b.isic .imount" is in 1993 SI- K 29.700. 9
RkJQdWJsaXNoZXIy MjYyNDk=