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 which it is urged should be implied. I think it is useful in this case. We then get a contract reading: ‘It is further agreed that Manchester United Football Club will pay a further sum of andpound;27,770 to Bournemouth and Boscombe Football Club when Edward MacDougall has scored 20 goals in first team competitive football for Manchester United . . provided always that Manchester United shall be under no obligation to afford MacDougall any reasonable opportunity of scoring 20 goals.’ It at once becomes clear that the inclusion of the proviso renders this part of the contract ‘inefficacious, futile and absurd’, to use the words that Lord Salmon used in Liverpool City Council v Irwin [1976] 2 All ER 39 at 50, [1977] AC 239 at 262.’
Brightman LJ, dissenting, said that the position would be different where there had been an allegation and finding of bad faith.
Judges:
Donaldson LJ, Brightman LJ
Citations:
Unreported 21 May 1980, Times 22-May-1980
Citing:
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 – Shirlaw v Southern Foundries (1926) Ltd HL 1940
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 . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 02 May 2022; Ref: scu.427737