A symposium to launch a book of essays in honour of Hugh Beale took place at Brasenose College, Oxford on 7 November. It was organised by Louise Gullifer and Stefan Vogenauer and was attended by most of the contributors to the book as well as by members of Hugh’s family. It was a warm-hearted occasion with many well-deserved tributes being paid to Hugh as a person, as a legal scholar and writer, as a law teacher, as a law reformer and as a leading contributor to some great European private law projects, including the Principles of European Contract Law and the Draft Common Frame of Reference. Hugh modestly mentioned that he had not been the initiator of any of these projects but everybody with any interest in European private law knows what a massive role he played in driving them along.
The book is called English and European Perspectives on Contract and Commercial Law: Essays in Honour of Hugh Beale. It has 25 chapters on a wide range of topics. Having read a number of them on the train back from Oxford and earlier today I can testify to their high quality and great interest. I look forward to reading the rest.
Several of the contributors gave short presentations at the symposium. Here I will just mention two, because they gave rise to a typically honest reaction from Hugh Beale.
Mindy Chen-Wishart provided an interesting and persuasive rationale for unfair contract terms legislation. Her starting point was that standard form contracting is now all-pervasive. People are not expected to read the standard terms governing a lot of the contracts they conclude, do not in fact do so and could not do so if they want to lead a normal life. Research backs this up.
One study found that even in an environment conducive to reading (the comfort of one’s own home or office) only one in every thousand retail software shoppers chooses to access the licence agreement for more than one second. And those few spend too little time to have read more than a tiny portion of the text (the average time spent was 47.7 seconds and median time was 29 seconds).
Providing more transparency or more information is not the whole answer. It is necessary to control substantive unfairness and not just try to control procedural unfairness. The most persuasive justification for doing this is, in her view, that it protects the institution of contract itself. Standard form contracting is probably necessary in the modern world but abuses have to be controlled if it is not to subvert the core ideas of contract. “Using contract to destroy contract is a worthless choice that the law should not follow.”
Jacobien Rutgers also spoke on unfair contract terms in consumer contracts, focussing more on the developments in the EU and the extent to which the Unfair Contract Terms Directive of 1993 had affected contract law and, indeed, other areas of law such as the law on civil procedure. In the course of her talk she also noted that consumers do not read standard terms – this would be boring, alienating, time-consuming and, above all, pointless because the consumer wants the goods anyway. So
the question is raised whether the duty to provide the information before the conclusion of the contract should not be abandoned, because it does not reflect empirical evidence and should be replaced by other means…
In the discussion after these talks Hugh Beale referred to the work of the English and Scottish Law Commissions in this area and admitted that they had probably placed too much emphasis on consent rather than substance: they had perhaps taken an out of date approach. This frank admission was typical of Hugh. He is an honest, decent and kindly man. I saw these qualities time and time again at the European meetings we attended together. If there was a newcomer to a group who needed to be reassured that he or she was not among ogres Hugh was the one to engage in friendly chat: if flowers had to be bought for a hostess Hugh was the one to arrange it: if appropriate words of a social nature had to be said at short notice Hugh was the one to say them. He was politely ruthless in debate but kind and considerate in conduct.
Hugh’s many friends throughout Europe will be glad to know that he has not fully retired. I suspect that in practice he will hardly be retired at all.