Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of circumstances.
Lord Atkin said: ‘The arrangement between the parties appears to me to be exactly described by the words of Cockburn C.J. in Stirling v. Maitland (1864) 5 B and S 840, 852: ‘If a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances’; and in such a state of things the Lord Chief Justice said: ‘I look on the law to be that there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative’. That proposition in my opinion is well established law. Personally I should not so much base the law on an implied term, as on a positive rule of the law of contract that conduct of either the promisor or promisee which can be said to amount to himself ‘of his own motion’ bringing about the impossibility of performance is in itself a breach. If A promises to marry B and before performance of that contract marries C, A is not sued for breach of an implied contract not to marry anyone else, but for breach of his contract to marry B.’
Judges:
Lord Atkin
Citations:
[1940] AC 701, [1940] 2 All ER 445
Jurisdiction:
England and Wales
Citing:
Appeal from – Shirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
Cited – William Stirling The Younger v Maitland And Boyd 1864
Cockburn CJ stated: ‘I look on the law to be that, if a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of . .
Cited by:
Cited – Mainwaring and Yeoman’s Row Management Limited v Trustees of Henry Smith’s Charity (No 2) CA 3-Oct-1996
The tenants had sought to purchase the freehold under the 1987 Act. One tenant having signed an ‘irrevocable’ agreement to participate, withdrew his involvement in the purchase, and the remaining number of tenants were no longer a sufficient . .
Cited – The County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
Cited – Bournemouth and Boscombe FC Limited v Manchester United FC Limited CA 21-May-1980
Donaldson LJ said: ‘I have on occasion found it a useful test notionally to write into the contract under consideration a declaratory clause expressing the fact that the parties are not subject to the obligations which would flow from the clause . .
Cited – Duval v 11-13 Randolph Crescent Ltd SC 6-May-2020
The Court was asked whether the landlord of a block of flats is entitled, without breach of covenant, to grant a licence to a lessee to carry out work which, but for the licence, would breach a covenant in the lease of his or her flat, where the . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 05 October 2022; Ref: scu.248231
