The pursuers asserted a contract between themselves and the defenders for a consultancy, and that reasonable remuneration was due under it. The Lord Ordinary had found that no contract had been completed, the parties being, at all points, in dispute as to the level of remuneration.
Held: It does not always follow that there is no contract where something which affects the parties’ contractual relationship has not yet been agreed. It may be clear from the terms of the bargain that the parties were content that agreement on this matter should be deferred for the time being, because they have agreed upon all that was necessary for there to be a binding contract between them.
‘But there is an important difference between cases where nothing has been done by either party to implement the alleged contract and cases where a party to the alleged contract has already provided the goods or services for which he seeks payment. It is likely to be more difficult in the former case to enforce the contract if there is no agreement about the remuneration which is to be paid, because in the ordinary case the price is one of the essential matters upon which agreement is required. Where goods or services have been provided, however, the usual rule is that there is an obligation to pay for them unless they have been provided gratuitously. So it is easier in these cases, if there is no agreement about the price or remuneration, for an obligation to pay a reasonable sum to be implied.’
Lord President Hope
[1993] ScotCS CSIH – 10, 1994 SCLR 401, 1994 SLT 613, 1994 SC 270
Bailii
Scotland
Citing:
Cited – Neilson v Stewart HL 21-Mar-1991
The parties disputed whether a completed agreement existed between them.
Held: Lord Jauncey of Tullichettle said: ‘The fact that in the usual case a particular term will be considered essential to the existence of a concluded agreement does . .
Cited – Suisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
Cited – R and J Dempster Ltd v Motherwell Bridge and Engineering Co Ltd SCS 3-Jul-1964
Although the parties had not agreed on the price which was to be mutually settled at a later date, it was held that there was a concluded contract by which the defenders were obliged to place orders with the pursuers for the steel which the pursuers . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 10 November 2021; Ref: scu.279571
