The House looked at the effect of rescission of a contract: ‘It was, however, argued before your Lordships that . . the old contracts were discharged because a varied contract is not the old contract, and as you cannot have a new and varied contract and an old and unvaried contract, regulating the same thing at the same time, the old contract, like other old things, must be disregarded. As a matter of formal logic, this may possibly be so, but such was not the view taken by this House in Morris v Baron, since, if their Lordships had thought that any variation whatever would make a new contract and discharge the old one, they would have said so expressly . . The variation may be a new contract, so as to make writing, duly signed, indispensible to its admissibility, for this is a matter of form and of the words of the statute, but the discharge of the old contract must depend on intention, tested in the manner settled in Morris v Baron.’ . . And ‘I do not think that the case, as reported, lays it down that a buyer, who has repudiated a contract for a given reason which fails him has, therefore, no other opportunity of defence either as to the whole or as to part, but must fail utterly. If he had repudiated, giving no reason at all, I suppose all reasons and all defences in the action, partial or complete, would be open to him. His motives certainly are immaterial and I do not see why his reasons should be crucial.’
Lord Atkinson said: ‘A written contract may be rescinded by parol either expressly or by the parties entering into a parol contract entirely inconsistent with the written one, or, if not entirely inconsistent with, inconsistent with it to an extent that goes to the very root of it.’ However, in this particular case no such rescission could be found, the purpose of the parol contract being ‘merely to vary the written contract with respect to one of its provisions.’
Lord Sumner, Lord Atkinson
[1923] AC 48, [1922] All ER 224
England and Wales
Citing:
Adopted – Morris v Baron and Co HL 1918
The House drew a distinction between a variation of a contract required to be evidenced in writing, and the rescission (or discharge) of such a contract. The former was itself required to be evidenced in writing; the latter was not.
Lord . .
Cited by:
Cited – Jagdeo Sookraj v Buddhu Samaroo PC 12-Oct-2004
PC (Trinidad and Tobago) Each party claimed to have entered into a contract to purchase the same land. It was contended that one contract had been rescinded and replaced by another. The issue was whether this . .
Cited – United Dominions Corporation (Jamaica) Ltd v Shoucair PC 1969
(Jamaica) A moneylending law required, for the enforceability of a loan bearing interest at more than ten per cent, a written memorandum containing all the terms of the loan with the borrower’s signature. A bank lent money at nine per cent secured . .
Cited – SK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 01 November 2021; Ref: scu.237253