Guarantor’s obligations not affected save by matters outside the guarantee. The beneficiary of a guarantee was restrained from enforcement of it whilst an allegation of fraud remained unresolved.
Ind Summary 26-Jun-1995, Times 02-May-1995
England and Wales
Updated: 21 January 2023; Ref: scu.89853
A court should not hear evidence of a common undisclosed intent to construe a written contract.
Staughton LJ
Times 25-Jul-1995
England and Wales
Cited – Scottish Power Plc v Britoil (Exploration) Limited CA 18-Nov-1997
Five contracts existed regarding sale of natural gas from a field in the North Sea. The parties disputed whether the terms prevented the sale of gas to others.
Held: ‘On the language of the contract, the Sellers are not entitled to sell gas to . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.84264
A milkman’s round agreement with the dairy supplying him with milk for sale, was registerable as a restrictive agreement if the words so require despite alternative remedies, and even though in this instance it might be borderline.
Gazette 19-Jul-1995, Times 06-Jul-1995
Restrictive Trade Practices Act 1976 9(3)
England and Wales
Appealed to – MD Foods v Baines and others; Associated Dairies Ltd v Baines and Others HL 27-Feb-1997
The appellant dairy sold milk to the defendant roundsmen, each agreeing not to sell milk by retail to the others customers. The defendant began to buy his milk elsewhere, and claimed the agreement should have been registered as a restrictive trade . .
Appeal from – MD Foods v Baines and others; Associated Dairies Ltd v Baines and Others HL 27-Feb-1997
The appellant dairy sold milk to the defendant roundsmen, each agreeing not to sell milk by retail to the others customers. The defendant began to buy his milk elsewhere, and claimed the agreement should have been registered as a restrictive trade . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.77920
The court was asked whether an investor with an interest in Notes issued in bearer form and held through the Clear stream system has a direct claim for breach of contract against the issuer of the Notes, in respect of an alleged breach of the misleading statements term.
Beatson, David Richards, Irwin LJJ
[2017] EWCA Civ 1486
England and Wales
Updated: 21 January 2023; Ref: scu.595818
King, David Richards, Nicola Davies LJJ
[2018] WLR(D) 766, [2018] EWCA Civ 2803, [2019] 2 All ER 1074, [2020] QB 93, [2019] Med LR 119, [2019] 2 WLR 1094, [2019] 1 FLR 1317, [2019] 1 FLR 1317
England and Wales
Updated: 21 January 2023; Ref: scu.631412
Chief ICC Judge Briggs
[2020] EWHC 1833 (Ch)
England and Wales
Updated: 31 December 2022; Ref: scu.652334
The defendant company had contracted for construction works at HMNB Clyde. The contract provided for payment to vary according to actual costs and a profit margin, but subject to a maximum. The costs would now well exceed the maximum charge, and argued that since the parties had ceased to use the change procedures, it was entitled to renegotiate and claim their actual costs and a profit margin.
Coulson J
[2015] EWHC 1150 (TCC)
England and Wales
Updated: 31 December 2022; Ref: scu.546221
The appeal was as to a jurisdiction dispute arising from the breakdown of a business relationship about the placement of medical malpractice insurance in the Italian market. The underlying question was whether the contractual arrangements between TRG and ATEL consist of a single composite and overarching agreement, a ‘Framework Agreement’ to which an earlier agreement, a Terms of Business Agreement appended to it as a Schedule, is subordinate, or whether the Framework Agreement and the ToBA are two freestanding contracts.
Elias, Beatson, Christopher Clarke LJJ
[2015] EWCA Civ 437, [2016] 1 All ER (Comm) 325, [2017] 1 CLC 456, [2015] 2 Lloyd’s Rep 154
England and Wales
Appeal from – Amtrust Europe Ltd v Trust Risk Group Spa ComC 10-Dec-2014
The parties disputed sums said to be due under arrangements selling medical malpractice insurance in Italy.
Held: ATEL had a ‘good arguable case’ that the ToBA continued as an agreement and was not superseded by the ‘Framework Agreement’, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 December 2022; Ref: scu.546214
[1674] EngR 72, (1674) Fin H 146, (1674) 23 ER 80
England and Wales
Updated: 20 December 2022; Ref: scu.406071
[1837] EngR 699, (1837) 3 Bing NC 737, (1837) 132 ER 595
England and Wales
Updated: 20 December 2022; Ref: scu.313816
Whether settlement agreement enforceable.
[2008] EWCA Civ 848
England and Wales
Updated: 20 December 2022; Ref: scu.271217
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The charterparty embodied no specific date as the date for the initial delivery of the vessel; it was a charter to run from the date when the vessel was delivered, but it embodied a clause providing for an earliest date of delivery and a cancellation date. The defendants then contracted to sell the ship conditionally upon it being released by the government. That happened and the ship was sold.
Held: The application of the doctrine of frustration was not excluded by the contractual term. The requisition and taking of the possession of the steamer was sufficient to destroy Even though an express term may deal with the cancellation of the contract for non-delivery, and also for a cancellation for requisition, such a term here did not prevent the owners from arguing that the contract had been frustrated.
Lord Sumner discussed the doctrine of frustration: ‘One matter I mention only to get rid of it. When the shipowners were first applied to by the Admiralty for a ship they named three, of which the Quito was one, and intimated that she was the one they preferred to give up. I think it is now well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a -self-induced frustration; indeed, such conduct might give the other party the option to treat the contract as repudiated. Nothing, however, was made of this in the courts below, and I will not now pursue it.’
and that a contract: ‘ought not to be left in suspense or to hang on the chances of subsequent events.’
Lord Wrenbury said: ‘The owners agreed to let and the charterers to hire the steamer for 12 months, to commence at a date not fixed so far as Article 1 is concerned, except that it was to be the date when she was placed at the disposal of the charterers at a coal port as ordered by them. The effect of Article 26 is that that date may be any date not before April 1 subject to the right of the charterers to refuse her and to cancel the charter if she is tendered after April 30. During a reasonable time the owners owed to the charterers the contractual duty of tendering the vessel. If they were for reasons beyond their control unable to tender her within a reasonable time their contractual duty in that respect would cease.’
Lord Sumner, Lord Finlay LC, Haldane V, Shaw of Dunfermline L, Wrenbury L
[1918] UKHL 1, [1919] AC 435, 35 TLR 150
England and Wales
Cited – Maritime National Fish Ltd v Ocean Trawlers Ltd PC 12-Apr-1935
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not . .
Cited – Maritime National Fish Ltd v Ocean Trawlers Ltd PC 12-Apr-1935
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not . .
Cited – James B Fraser and Co Ltd v Denny, Mott and Dickson Ltd HL 19-May-1944
The House was asked whether a contract, entered into before the war, has been brought to a premature conclusion by war regulations which render illegal, and therefore prevent, the due performance of some of the obligations or the due enjoyment of . .
Cited – Bunge Sa v Kyla Shipping Company Ltd ComC 10-Dec-2012
. .
Cited – James Scott and Sons, Ltd v R and N Del Sel and Another SCS 22-Jun-1922
Frustration of Contract – Arbitration – Contract to Ship Jute – Order in Council Prohibiting Export of Jute – Suspension or Termination of Contract – Application of Arbitration Clause. . .
Cited – Wong Lai Ying and Others v Chinachem Investment Co Ltd PC 27-Nov-1979
(Hong Kong) . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Lauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
Cited – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust QBD 5-Feb-2014
The court was asked whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. The Costs judge had held that, as a matter of law, . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.265985
The managing director defendant had resigned before the end of the contractual term. There was an express covenant in his contract against using or disclosing the company’s confidential information during or after his employment. It was submitted that this was a repudiation which brought the contract to an end and with it any obligation to observe the restrictive covenants.
Held: Sir Robert Megarry VC considered the power of a court to prevent a wrongdoer from benefiting from his wrong: ‘Above all, I think the courts must be astute to prevent a wrongdoer from profiting too greatly from his wrong. If without just cause a servant who has contracted to serve for a term of years refuses to do so, it is easy to see that the court is powerless to make him do what he has contracted to do: neither by decreeing specific performance nor by granting an injunction can the court make the servant perform loyally what he is refusing to do, however wrongfully . . But why should the court’s inability to make a servant work for his employer mean that as soon as the servant refuses to do so the court is forthwith disabled from restraining him from committing any breach, however flagrant, of his other obligations during the period of his contract? I would wholly reject the doctrine of automatic determination, whether in its wide form or in its narrowed version.’
As to whether information was confidential, Sir Robert Megarry VC said: ‘If one turns from the authorities and looks at the matter as a question of principle, I think (and I say this very tentatively, because the principle has not been argued out) that four elements may be discerned which may be of some assistance in identifying confidential information or trade secrets which the court will protect. I speak of such information or secrets only in an industrial or trade setting. First, I think that the information must be information the release of which the owner believes would be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e., that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner’s belief under the two previous heads must be reasonable. Fourth, I think that the information must be judged in the light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information or trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection.’
Sir Robert Megarry VC
[1979] Ch 227, [1978] 3 All ER 193, [1978] ICR 950, [1978] 3 WLR 116
England and Wales
Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Cited – Gunton v Richmond-upon-Thames London Borough Council CA 1980
The plaintiff college registrar had been the subject of disciplinary proceedings, but the defendant had not followed the contractual procedure. The judge had ordered an inquiry as to damages on the basis that the Plaintiff was entitled to remain in . .
Cited – Lancashire Fires Ltd v S A Lyons and Co Ltd CA 1996
It was claimed that a loan to the employee from a customer of the employer coupled with an exclusive supply agreement by the employee as and when the competing business becomes operative was in breach of an non-compete clause.
Held: The . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.270349
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. Mr Newborne attempted to enforce the contract as one to which he was party.
Held: This was inconsistent with the description of the party in the contract.
Lord Goddard CJ: ‘In my opinion, unfortunate though it may be, as the company was not in existence when the contract was signed there never was a contract, and Mr Newborne cannot come forward and say: ‘Well, it was my contract.’ The fact is, he made a contract for a company which did not exist.’ The contract purported to be a contract with the company and it was not relevant that, as was the case, it was a matter of indifference to the purchasers whether they contracted with the company, or with Mr Newborne personally.
Lord Goddard CJ, Morris LJ
[1954] 1 QB 45, [1953] 1 All ER 708
England and Wales
Well established – Schmaltz v Avery 1851
An agent who signed a charterparty containing a cesser clause purportedly as agent for an unidentified principal could show that he was himself the principal and could sue on the contract, on the grounds that it was irrelevant to the third party who . .
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Cited – Phonogram Ltd v Lane CA 1982
A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.188460
The plaintiff took a parcel to a railway company depot for delivery, and received a ticket on which were printed conditions including a disclaimer. On the front of the ticket were printed the words ‘see back’. The jury was asked only if they concluded that he knew of the condition.
Held: A re-trial was ordered on the company’s appeal. The judge’s direction was incorrect. The plaintiff would not be bound if he did not know there was writing on the ticket, but will be if he knows there is writing and that it contains conditions, or even if he knows there is writing, but not that it contains conditions, provided the jury was satisfied that reasonable notice had been given that the ticket did contain conditions.
(1877) 2 CPD 416, (1877) 46 LJQB 768
England and Wales
Cited – TICC Limited v Cosco (UK) Limited CA 5-Dec-2001
The claimants sought to have incorporated by notice into a contract of bill of lading, the terms of a freight surcharge. Notice had been given to the shipping agents in Hong Kong only. The shippers claimed the surcharge under the 1992 Act, saying . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.182802
A contract involving a fraudulent insurance claim will not be enforced by courts.
Sir Stephen Brown P, Russell LJ, Millett LJ
Ind Summary 20-Nov-1995, [1995] EWCA Civ 54, [1996] CLC 377, 50 Con LR 70
England and Wales
Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.89741
Exhibitor recovered for costs of attending badly promoted trade exhibition.
Independent 30-Aug-1995
England and Wales
Updated: 20 December 2022; Ref: scu.79820
Judgment on trial of issues as to variation of investment agreement.
Mrs Justice Moulder
[2021] EWHC 1128 (Comm)
England and Wales
Updated: 20 December 2022; Ref: scu.662379
Plea of Purchase for a valuable Consideration, and G.
[1674] EngR 67, (1674) Fin H 143, (1674) 23 ER 78 (A)
England and Wales
Updated: 20 December 2022; Ref: scu.406066
[1789] EngR 2208, (1789-1817) 2 Ves Jun Supp 389, (1789) 34 ER 1145 (J)
England and Wales
Updated: 20 December 2022; Ref: scu.367839
Lord Justice Mummery
[2009] EWCA Civ 628
England and Wales
Updated: 20 December 2022; Ref: scu.347217
[1837] EngR 720, (1837) 6 Ad and E 794, (1837) 112 ER 304
England and Wales
Updated: 20 December 2022; Ref: scu.313837
Certain creditors of an intestate, having sued on an administration bond in the name of the archbishop, the obligee, without indemnifying him, and having alleged profert, upon which the Defendant craved oyer, Held, that this Court could not in lieu of oyer substitute a copy of the bond, or a production of it to Defendant’s attorney at the Register Office.
[1837] EngR 730, (1837) 3 Bing NC 789, (1837) 132 ER 615
England and Wales
Updated: 20 December 2022; Ref: scu.313847
[1837] EngR 710, (1837) 6 Ad and E 726, (1837) 112 ER 279
England and Wales
Updated: 20 December 2022; Ref: scu.313827
[1837] EngR 691, (1837) 8 Sim 404, (1837) 59 ER 160
England and Wales
Updated: 20 December 2022; Ref: scu.313808
The pursuer chartered surveyor sought payment for his work. No price had been agreed and the pursuer sought payment in accordance with standard rates published by his Institution. The defender sought to make payment on quantum meruit basis.
‘If a person employs a professional man to perform some service and makes no inquiry as to the basis upon which the professional man is to be remunerated for this service, it is not unreasonable that he should pay for the service on the usual and customary basis. It is not open to him to complain that he is unaware of it, if he has never even taken the trouble to ascertain it before engaging another to do work for him without specifying a precise fee.’
[1956] ScotCS CSIH – 1
Scotland
Updated: 20 December 2022; Ref: scu.279444
Reasons for judgment for claimants in claim under commercial guarantee.
Gloster DBE J
[2008] EWHC 2689 (Comm), [2009] BPIR 892
England and Wales
Updated: 20 December 2022; Ref: scu.277869
Lord Justice Longmore
[2008] EWCA Civ 414, [2009] L and TR 3
England and Wales
Updated: 20 December 2022; Ref: scu.267006
The question of the reasonableness of a clause must be assessed having regard to the relevant clause viewed as a whole: it is not right to take any particular part of the clause in isolation, although it must also be viewed against a breach of contract which is the subject matter of the case before the court.
Hobhouse LJ
[1995] EWCA Civ 19, [1996] CLC 265
Unfair Contract Terms Act 1977
England and Wales
Cited – Overseas Medical Supplies Limited v Orient Transport Services Limited CA 20-May-1999
The appellant challenged a finding that it was responsible for the loss of medical equipment being transported from Tehran to the UK, and of failing to insure it as required, the contractual term exempting it from responsibility being an . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.187458
An agreement giving to a ‘sole judge’ the power to make a final decision was effective, and there was no appeal from his decision. The defendant’s decision in his capacity as Convention administrator was as a final arbiter and was unreviewable.
Held: The appeal was allowed. The agreement was unusual, but the decisions was final and binding ‘ . .subject . . to any question of unfairness, bad faith or perversity’. Neill LJ ‘It remains the general rule of common law that an agreement wholly to oust the jurisdiction of the Courts is against public policy and void. . . It is clear, however, that in applying the rule questions of fact are treated differently from questions of law . .’
Neill LJ
Times 26-Oct-1995, Independent 01-Nov-1995, [1996] 1 Lloyd’s Rep 370, [1996] CLC 240
England and Wales
Appeal from – West of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd ComC 25-Jan-1995
cw Contract – contractual rights – fulfilment of conditions – freedom to fulfil bargain – court action precluded – ouster clauses – arbitration – term – construction – one party sole arbitrator of construction – . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Reversed on Appeal – West of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd ComC 25-Jan-1995
cw Contract – contractual rights – fulfilment of conditions – freedom to fulfil bargain – court action precluded – ouster clauses – arbitration – term – construction – one party sole arbitrator of construction – . .
Cited – McNicholas Plc v AEI Cables Limited TCC 25-May-1999
The claimant had subcontracted to supply cabling on the defendant’s project. The contract provided both for the exclusive jurisdiction of the English courts but also for arbitration. The defendant applied for the action to be stayed and referred to . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.90396
Judgment on application for summary strike out of part of claim for recovery of sums paid.
[2020] EWHC 1644 (Ch)
England and Wales
Updated: 20 December 2022; Ref: scu.652116
The claimant sought damages for deceit in the purchase of shareholdings fropm the defendants. The defendants objected that the damages claimed were for a loss of chance and were irrecoverable.
Held: Such damages might be recoverable in an action for deceit. Though there was no previous case directly on the point, there was no reason in principle why such a claim might not be made.
David Richards J
[2008] EWHC 915 (Ch), Times 23-Jun-2008, [2008] Bus LR 1698, [2009] Ch 91, [2008] 3 WLR 892
England and Wales
Cited – East v Maurer CA 1991
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.270459
The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff’s claim for specific performance would have been put in a position in which it was bound to fail in limine.
Held: To redress the unfairness to the defendant vendor, whose property was unsaleable while the caution remained registered, the caution should be vacated on the plaintiffs being given the opportunity to make an immediate application for an interlocutory injunction restraining the defendant from dealing with the land in any way inconsistent with the plaintiff’s claim pending the trial, which would not be opposed by the defendant, and the defendant getting a cross undertaking in damages.
Templeman J
[1974] 1 WLR 243
England and Wales
Approved – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Cited – Nugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
Cited – Nugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.243395
British Telecommunications Plc provided its own directory service. BT was licenced as a public telecommunications operator requiring it to provide telephone services on request to anyone who sought them without discrimination. The claimant wanted to operate its own free service, and contracted with BT to use a line, but BT then gave notice to end the contract. The claimant obtained an interlocutory injunction, arguing for an implied term that it could only be terminated if there were good cause.
Held: The court dismissed the appeal against the injunction. The defendant could not rely on a term of the contract which would allow it to render a contractual performance substantially different from that which was reasonably expected of it.
Sir Thomas Bingham MR spoke as to the submission that there was implied such a term: ‘On behalf of BT Mr. Hobbs submitted that the meaning of the contract, particularly the meaning of clause 18.1, was quite clear. BT could terminate on a month’s notice at any time with or without reason, and no matter how great the loss such termination might, to BT’s knowledge, cause the customer. There was, he said, no inconsistency, as the learned judge had thought, between the power to suspend for operational reasons under clause 6 and the power to terminate under clause 18. He argued that the factual matrix was irrelevant, since this was a standard form contract applicable to many millions of customers and the meaning of the contract did not vary depending upon the peculiar circumstances of those who happened to be parties to it. Furthermore, he said that there was no room for implication since terms were to be implied into the contract only if they were necessary and not because they were thought to be reasonable. In other words, Mr. Hobbs propounded with great skill what could fairly and not pejoratively be described as an old-fashioned classical argument based upon a literal approach to the text of the contract. That may prove to be a good argument. It is certainly a view of the matter which has been accepted by judges on other occasions albeit in the absence of full argument.
For my part, however, I share the judge’s reservations. It is relevant to bear in mind that BT is a public telecommunications operator licensed by the Secretary of State under Telecommunications Act 1984 to provide a public telecommunications service. It is subject to the oversight of the Director General of Telecommunications who has certain powers if BT should fail to comply with its licence. It is quite plain, as one would expect, that BT is indeed obliged to observe the terms of its licence. The terms of the licence are not, as I have pointed out, part of the contract with the consumer, but they are, nonetheless, as I consider, an inescapable part of the background which falls to be considered. . .
It is therefore correct, speaking very generally, to regard BT as a privatised company, no longer a monopoly, but still a very dominant supplier closely regulated to ensure that it operates in the interests of the public and not simply in the interests of its shareholders should those be in conflict. Against that background I am, for my part, by no means sure that the classical approach to the implication of terms is appropriate here. As Lord Cross pointed out in Liverpool City Council v. Irwin [1977] AC 239, 257, implied terms can find their way into contracts either because the law lays down a general rule that in contracts of a certain type a certain obligation should be implied, or on grounds of necessity for business efficacy. Thus, pure necessity is not the only ground on which a term can be implied and I can see strong grounds for the view that in the circumstances of this contract BT should not be permitted to exercise a potentially drastic power of termination without demonstrable reason or cause for doing so. ‘
Sir Thomas Bingham MR
[1995] EMLR 459
Unfair Contract Terms Act 1977
England and Wales
Cited – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.246220
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered the clause ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying on business in London.’
Held: The judgment of Rix J was approved. The parties had most probably wished to have one stop adjudication, so that if a part of the claim or cross claim arose out of the contract it was inherently likely that the parties intended that they should all be heard in one forum if the facts were closely knitted together.
The court rejected the idea that the grant of an injunction to restrain foreign proceedings which were in clear breach of contract would offend against comity. It did so on the basis that it is vexatious and oppressive for a party to maintain proceedings in breach of its agreement not to do so. Millett LJ: ‘In my judgment, the time has come to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caution. There have been many statements of great authority warning of the danger of giving an appearance of undue interference with the proceedings of a foreign Court. Such sensitivity to the feelings of a foreign Court has much to commend it where the injunction is sought on the ground of forum non conveniens or on the general ground that the foreign proceedings are vexatious or oppressive but where no breach of contract is involved. In the former case, great care may be needed to avoid casting doubt on the fairness or adequacy of the procedures of the foreign Court. In the later case, the question whether proceedings are vexatious or oppressive is primarily a matter for the Court before which they are pending. But in my judgment there is no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to being them.
I cannot accept the proposition that any Court would be offended by the grant of an injunction to restrain a party from invoking a jurisdiction which he had promised not to invoke and which it was its own duty to decline.
In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign Court in breach of an arbitration agreement governed by English law, the English Court need feel no diffidence in granting the injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. I see no difference in principle between an injunction to restrain proceedings in breach of an arbitration clause and one to restrain proceedings in breach of an exclusive jurisdiction clause as in Continental Bank NA v Aeakos Compania Naviera SA, [1994] 1WLR 588. The justification for the grant of the injunction in either case is that without it the plaintiff will be deprived of its contractual rights in a situation in which damages are manifestly an inadequate remedy. The jurisdiction is, of course, discretionary and is not exercised as a matter of course, but good reason needs to be shown why it should not be exercised in any given case.’
Leggatt LJ said: ‘The question in a nutshell is whether the relevant claims and cross-claims arise out of the contract. It is common ground that the question must be answered in the light of The Playa Larga [1983] 2 Lloyd’s Law Reports 171, in which the Court upheld the dictum of Mr Justice Mustill that a tortious claim does arise out of a contract containing an arbitration clause if there is a sufficiently close connection between the tortious claim and a claim under the contract. In order that there should be a sufficiently close connection, as the Judge said, the claimant must show either that the resolution of the contractual issue is necessary for a decision on the tortious claim, or, that the contractual and tortious disputes are so closely knitted together on the facts that an agreement to arbitrate on one can properly be construed as covering the other.’
Leggatt LJ, Millett LJ, Neill LJ
[1995] 1 Lloyd’s Rep 87
England and Wales
Appeal from – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Cited – S Ltd v C Ltd ComC 27-Feb-2009
Defamation allegation not subject to arbitration
The parties had an agreement referring disputes between them to arbitration. One party raised an allegation of defamation, but the arbitrator refused jurisdiction. The parties had chosen the London Metal Exchange for its expertise in metals trading, . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.185976
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a loss of chance, the root question was what damages had followed. The Appeal was allowed in part. A defendant should be disallowed from relying upon a wrong he had himself committed to reduce the damages which might otherwise flow.
Lord Justice Laws Lord Justice Waller Lord Justice Carnwath
[2004] EWCA Civ 215, Times 24-Mar-2004, Gazette 01-Apr-2004
England and Wales
Appeal from – Normans Bay Limited (Formerly Illingworth Morris Limited) v Coudert Brothers (A Firm) QBD 19-Feb-2003
The claimant instructed the defendant firm to act in advising in support of an investment in Russia. The investment was declared invalid in the courts of Russia, and the claimant said that the defendant should have forewarned them of the problem, . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Goode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.194076
The defendant sent a written order for goods to a shop owned by Brocklehurst and which was addressed to him by name. Unknown to the defendant, Brocklehurst had earlier that day sold and transferred his business to Boulton. Boulton fulfilled the order and delivered the goods to the defendant without notifying him that he had taken over the business. The defendant accepted the goods and consumed them in the belief that they had been supplied by Brocklehurst. When he received Boulton’s invoice he refused to pay it, claiming that he had intended to deal with Brocklehurst personally, since he had dealt with him previously and had a set-off on which he had intended to rely.
Held: The defendant was not liable for the price. There was no contract.
Pollock CB said: ‘Now the rule of law is clear, that if you propose to make a contract with A, then B cannot substitute himself for A without your consent and to your disadvantage, securing to himself all the benefit of the contract.’
Bramwell B said: ‘I do not lay it down that because a contract was made in one person’s name another person cannot sue upon it, except in cases of agency. But when any one makes a contract in which the personality, so to speak, of the particular party contracted with is important, for any reason, whether because it is to write a book or paint a picture, or do any work of personal skill, or whether because there is a set-off due from that party, no one else is at liberty to step in and maintain that he is the party contracted with, that he has written the book or painted the picture, or supplied the goods; and that he is entitled to sue, although, had the party really contracted with sued, the defendant would have had the benefit of his personal skill, or of a set-off due from him.’
Channell B: ‘The plaintiff is clearly not in a situation to sustain this action, for there was no contract between himself and the defendant. The case is not one of principal and agent; it was a contract made with B, who had transactions with the defendant and owed him money, and upon which A seeks to sue.’
Martin B said: ‘Where the facts prove that the defendant never meant to contract with A alone, B can never force a contract upon him; he has dealt with A, and a contract with no one else can be set up against him.’
Pollock CB, Martin B, Bramwell B, Channell B
(1857) 2 H and N 564, [1857] EngR 935, (1857) 157 ER 232
England and Wales
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.188455
There is a presumption against adding terms to a contract. The presumption is stronger where the contract is in writing and represents an apparently complete bargain between the parties. Sir Thomas Bingham MR set out Lord Simon’s formulation, and described it as a summary which distilled ‘the essence of much learning on implied terms’ but whose ‘simplicity could be almost misleading’. He then explained that it was ‘difficult to infer with confidence what the parties must have intended when they have entered into a lengthy and carefully-drafted contract but have omitted to make provision for the matter in issue’, because ‘it may well be doubtful whether the omission was the result of the parties’ oversight or of their deliberate decision’, or indeed the parties might suspect that ‘they are unlikely to agree on what is to happen in a certain . . eventuality’ and ‘may well choose to leave the matter uncovered in their contract in the hope that the eventuality will not occur’. Sir Thomas continued: ‘The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. [He then quoted the observations of Scrutton LJ in Reigate, and continued] [It is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred …’
Bingham MR stated:
‘The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. . . [It is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred.’
Sir Thomas Bingham MR
[1995] EMLR 472
England and Wales
Cited – BP Refinery (Westernport) Pty Ltd v The Shire of Hastings PC 1977
(Victoria) The Board set out the necessary conditions for a clause to be implied into a contract.
Held: Lord Simon of Glaisdale said: ‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a . .
Cited – Robin Ray v Classic FM Plc PatC 18-Mar-1998
Contractor and Client Copyrights
The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct . .
Cited – Legal and General Assurance Society Ltd v Expeditors International (Uk) Ltd CA 24-Jan-2007
Leases contained break clauses which the tenant purported to exercise. The landlord replied that they were ineffective because the tenant had not complied with his repair covenants. The dispute appeared settled after negotiations, and the settlement . .
Cited – R Griggs Group Ltd, R Griggs and Co Ltd, Airwair Ltd v Evans, Raben Footwear Pty Ltd, Lewy, Lewy CA 25-Jan-2005
The claimants distributed Doc Marten footwear. They asked an agency to prepare a logo. The agency paid an independent contractor to prepare it, but did not take an assignment of copyright to it. The contractor sold the rights in the logo to the . .
Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.188600
[2013] EWHC 3100 (TCC)
England and Wales
Updated: 12 December 2022; Ref: scu.516608
[2013] EWHC 1790 (TCC)
England and Wales
Updated: 12 December 2022; Ref: scu.511225
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal failed and another succeeded. ‘the circumstances in which a purchaser’s lien will arise are not limited to those in which the contract is or has been specifically enforceable but include those in which there is or has been a right to call for the legal estate whether presently, in the future or conditionally so as to give rise to the equitable interest or estate. . . ‘
and ‘It is not disputed that the purchaser’s lien arises by operation of law from the contract unless it is modified or excluded by express agreement of the parties or by necessary implication from the contractual arrangements the parties have entered into. The lien so arising is an unqualified equitable right. In common with all other equitable rights it is capable of being subordinated to the rights of a subsequent purchaser for value of a legal estate without notice of the equitable right. But that inherent weakness is no reason to modify the nature of the right itself. ‘
[1996] EWCA Civ 696, [1997] 1 EGLR 153, (1998) 75 P and CR 298, [1997] 06 EG 152, [1996] NPC 136
Land Registration Act 1925 70(2)
England and Wales
Cited – Rose v Watson HL 7-Mar-1864
The buyer had paid deposits under an unconditional contract for the purchase of land induced by the misrepresentations of the seller. On discovering the falsity of the representations the buyer rescinded the contract and successfully resisted a . .
Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
Cited – Sainsbury v O’Connor CA 1991
Sainsbury and a Belgian company held 75% and 25% respectively of a joint venture company. Sainsbury had an option, not exercised for 5 years, to acquire the 25% holding. The option was never exercised and was cancelled. The court was asked whether . .
Cited – Hewitt v Court 15-Mar-1983
Austlii (High Court of Australia) Lien – Equitable – Contract for provision of work, labour and materials – Progress payments – Whether lien obtained over unfinished object – Whether dependent upon right to . .
Cited – Levy v Stogdon 1898
Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld. . .
Cited – Whitbread and Co Ltd v Watt CA 1902
The buyer agreed to buy a house when the developer had finished 300 houses on the site, but now sought return of his deposit.
Held: The developer’s appeal against an order for the return of the deposit failed.
Williams LJ said: ‘The lien . .
Cited – Whitbread and Co Ltd v Watt ChD 1901
The purchaser contracted to purchase a plot on a building estate belonging to the vendor. The contract provided that ‘the purchase is to be completed as soon as 300 houses shall have been erected on the said estate’. Thus the contract was one under . .
Cited – Middleton v Magnay 1864
The vendor had agreed to grant a 21 year lease over certain land. In fact he only had an eight year lease in half the land. When the contract went off on account of the inability of the vendor to grant the lease contracted for the purchaser claimed . .
Cited – Ashburn Anstalt v Arnold (2) CA 25-Feb-1988
Various leases of properties had been granted. Legal and General occupied the property under an arrangement under which they paid no rent. The landlord sought possession, saying that the agreements were licences not tenancies because of the absence . .
Cited – Lyus v Prowsa Developments Ltd ChD 1982
The plaintiffs contracted to buy a plot of registered land with a house to be built on it. The developer had charged the estate as a whole to a bank to secure the development finance. The developer became insolvent and the bank sold the estate as . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.140563
A second agreement varying a first but to take effect in the future may leave the first agreement intact.
Ind Summary 11-Dec-1995
England and Wales
Updated: 09 December 2022; Ref: scu.89687
A conditional sale term that the owner owned the car was a contract condition, not a warranty.
Independent 01-Dec-1995, Times 27-Nov-1995
England and Wales
Updated: 09 December 2022; Ref: scu.78183
Contractors taking on building work should be assumed to have taken account of the possible presence of asbestos when quoting for the work.
Times 15-Feb-1995, Ind Summary 20-Feb-1995
England and Wales
See also – Barclays Bank Plc v Fairclough Building Ltd CA 11-May-1994
Contributory negligence is no defence to a claim which was made out strictly in contract only. . .
See also – Barclays Bank Plc v Fairclough Building Ltd CA 11-May-1994
Contributory negligence is no defence to a claim which was made out strictly in contract only. . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.78203
During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the tenant’s covenants to insure and deliver up in good condition.
Held: The tenant remained liable. He had not been evicted by title paramount, and the occupation had been temporary, and did not excuse him from performance of his obligations.
Two questions arose. The first was whether the tenant, who had been evicted in January 1918 by ‘the military authorities’ acting under the Defence of the Realm Regulations, remained liable for rent and under covenants to repair, insure and deliver up the demised premises in good repair.
Held: A landlord’s wrongful refusal to give the tenant possession of the premises constituted an eviction which suspended the tenant’s obligation to pay rent. However, the fact of the eviction does not suspend the tenant’s obligations under covenants other than that for the payment of rent, with the result that the tenant remained liable to pay outgoings.
Lord Buckmaster (Lords Wrenbury and Carson agreeing) said: ‘Eviction by the lessor himself is with equal reason an answer to the claim upon the covenant [to pay rent], and in such a case, as Jervis C.J. said in Upton v. Townend , the question is whether there is an eviction in fact, and whether the plaintiff [that is, the lessor] was a party to it, and again, later on in the judgment, he repeats ‘it is for the jury to say whether the act was done by the landlord, and whether it was done with the intention of depriving the tenant of the enjoyment.’
Lord Atkinson (Lords Sumner and Carson agreeing) added: ‘another instance in which the lessee is deprived of the enjoyment of part of the demised premises, is where the lessor tortiously evicts the lessee from that part. The effect of such an act was dealt with in Morrison v Chadwick and it was decided that such an eviction creates a suspension of the entire rent during its continuance, but that the tenancy is not thereby put to an end, nor is the tenant thereby discharged from the performance of his covenants other than the covenant for the payment of rent.’
Lord Atkinson said: ‘a person who expressly contracts absolutely to do a thing not naturally impossible is not excused for non-performance because of being prevented by the act of God or the King’s enemies . . or vis major’.
And the ‘leasehold estate cannot be divorced from its origins and basis in the law of contract’
Buckmaster, Wrenbury, Carson Atkinson, Sumner LL
[1922] 2 AC 180, [1922] All ER Rep 1, (1922) 91 LJKB 593, (1922) 127 LT 247, (1922) 38 TLR 475, (1922) 66 Sol Jo 386, [1922] 2 AC 180, 91 LJKB 593
England and Wales
Appeal from – Matthey v Curling CA 1920
. .
Approved – Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd HL 1945
Wartime regulations were implemented which prohibited the building on land which was already subject to a building lease which required the lessees to erect several shops.
Held: Even if the doctrine of frustration could apply to a lease, the . .
Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.652302
Vendor and purchaser summons under section 49 of the Law of Property Act 1925
Morgan J
[2020] EWHC 1711 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.652232
[2020] EWHC 1597 (QB)
England and Wales
Updated: 09 December 2022; Ref: scu.651935
A prospective bidder for articles about to be sold at an auction sale saw the sellers as to whether there might be difficulty in obtaining possession of the articles owing to Government impressment, and he was informed that the Government had been satisfied and the sale was to be allowed. Subsequently a subordinate Government official intimated that he wanted the articles for the Government, but his action was repudiated on application to his superior officer. This incident was not disclosed to the prospective bidder, who attended the sale, when the articles were knocked down to him. After the sale the Government intervened to prevent removal, and shortly after impressed. Held ( rev. judgment of the Second Division) that the purchaser was not entitled to rescind the contract on the ground of essential error induced by the seller, and was liable for the price, the property in the articles having passed to him on the fall of the hammer.
[1920] UKHL 400, , 57 SLR 400
Scotland
Updated: 09 December 2022; Ref: scu.631528
Where there are communings with a view to an agreement, it is a question of the intention of parties whether a valid and effectual agreement has been made requiring no formal instrument though such formal instrument is being prepared, or whether there is to be no valid and effectual agreement until the formal instrument is completed. Circumstances in which held a formal completed instrument was required.
[1918] UKHL 497 – 1, 55 SLR 497 1
England and Wales
Updated: 09 December 2022; Ref: scu.631473
Proper interpretation of a clause in a partnering contract
Edwards-Stuart J
[2014] EWHC 1615 (TCC), [2014] Bus LR 954
England and Wales
Updated: 09 December 2022; Ref: scu.526254
The plaintiff complained after the purchase of a Fiat Omnibus chassis ‘for the road’, to be used for the conveyance of passengers around Bristol, in heavy and hilly traffic conditions. The chassis proved unfit for this purpose on account of breaking-down too often.
Held: There was an implied condition that the omnibus should be reasonably fit for the declared purpose. Buses manufactured by the defendant which were too slightly built for heavy city traffic were both not fit for purpose and not of merchantable quality. Nevertheless, goods may be reasonably fit for a purpose despite minor defects.
Farwell LJ said: ‘The phrase in s.14, sub-s.(2), is, in my opinion, used as meaning that the article is of such quality and in such condition that a reasonable man acting reasonably would after a full examination accept it under the circumstances of the case in performance of his offer to buy that article whether he buys for his own use or to sell it again.’
Cozens-Hardy, LJ MR considered the proper approach for a court interpreting a codifying statute: ‘I rather deprecate the citation of earlier decisions . . The object and intent of the statute . . was, no doubt, simply to codify the unwritten law applicable to the sale of goods, but in so far as there is an express statutory enactment, that alone must be looked at and must govern the rights of the parties, even though the section may to some extent have altered the prior common law’
Cozens-Hardy, LJ MR, Farwell LJ
[1910] 2 KB 831
England and Wales
Cited – Regina v Fulling CACD 1987
It was alleged that evidence had been obtained by police oppression. She had at first refused to answer questions, but an officer talked to her during a break between interviews, telling her that her lover had been having an affair. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.464676
Claim for damages for the failure of the defendant, Rail Safety and Standards Board Limited, to take an underlease of the first floor and an underlease of the second floor of a building at Holborn, London EC1, pursuant to an agreement between BT and RSSB. RSSB intended to carry out substantial works to those premises.
Lord Justice Etherton
[2012] EWCA Civ 553
England and Wales
Updated: 09 December 2022; Ref: scu.454036
[1920] 3 KB 608
England and Wales
Appeal from – Matthey v Curling HL 1922
During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.443848
The plaintiff had a cheque account at the Borough Branch and drew a cheque on the cheque forms which had been provided. He crossed out the word `Borough’ and put in `Bromley’. He altered the address and he initialled the cheque. Later he decided to stop payment on the cheque, telephoning the Bromley Branch and informing them of this decision. The cheque had passed through the computer system which could not read the alterations made by the plaintiff. The cheque itself was forwarded to the Borough Branch at which the employees were unaware of the stop-payment instructions. At the end of the suspense period, the amount of the cheque was debited to the plaintiff’s account at the Borough Branch.
Held: The bank was unsuccessful in its contention that a new practice utilising the introduction of magnetic ink characters seeking to restrict cheques to the particular account for which they had been prepared, had been consensually agreed to by the customer. Notice of a change in condition oin cheque book covers was ineffective. A stop instruction from a bank’s customer applies to all accounts at the same branch if a specific account is not specified.
The bank is the debtor of the customer, whether the customer has a current or deposit account.
Mocatta J
[1966] 1 QB 742, [1965] 3 All ER 81
England and Wales
Updated: 09 December 2022; Ref: scu.448095
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash from her liability under the legal charge.
Held: The appeal succeeded. Pitchford LJ said: ‘the current state of the law is that, in order for the creditor to reserve his rights against co-debtors, he should expressly reserve those rights in his agreement. If he does not make express reservation the court will need to determine whether a term is necessarily to be implied from the circumstances which existed at the time of the agreement. In this case there was only one version of the agreement in evidence before the learned judge and that was provided by Mr Upton whose evidence the judge, to a large extent, accepted. There was no evidence before the judge of any express reservation by the claimant of its rights to pursue Ms Nash and the judge made no finding that such a reservation had expressly been made.’
Sedley, Pitchford, Gross LJJ
[2010] EWCA Civ 1247, [2011] BPIR 381
England and Wales
Cited – Matthey v Curling HL 1922
During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the . .
Cited – Deanplan Limited v Mahmoud 1992
The court considered whether a release of one of joint contractors released the other contractors. He said: ‘An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released . .
Cited – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
Cited – Pinnel’s Case, Penny v Core CCP 1602
Payment of Lesser Sum Not Satisfaction
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may . .
Cited – Johnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.425795
Lord Justice Longmore
[2010] EWCA Civ 912
England and Wales
Updated: 09 December 2022; Ref: scu.421204
[1675] EngR 1390, (1675) 1 Br and Gold 112, (1675) 123 ER 699 (A)
England and Wales
Updated: 09 December 2022; Ref: scu.405515
[2010] EWHC 1696 (QB)
England and Wales
Updated: 09 December 2022; Ref: scu.420705
Appeal against finding of procuring of breach of contract.
[2010] EWCA Civ 326
England and Wales
Updated: 09 December 2022; Ref: scu.406536
The University had in previous summers provided accomodation to the Center for their summer schools. In 2006, the University wrote to say it could offer only much reduced accommodation. The School said that the University had entered into a long term contract with only fees varying from year to year. When the University sued for arrears of fees from a previous year, the Center counterclaimed for the breach of an obligation to provide more places. Negotiations had been by telephone and email, as they had in earlier years, and no formal contract had been signed.
Held: The University’s appeal succeeded. Analysing the correspondence and exchanges, there was nothing to amount to offer and acceptance, and no contract was in place to support the counterclaim. This was supported by the Judge’s own difficulty in identifying its precise terms.
Sir Andrew Morritt VC, Moore-Bick LJ, Etherton LJ
[2009] EWCA Civ 784
England and Wales
Updated: 09 December 2022; Ref: scu.365609
The appeal involves a question of construction concerning the demurrage provisions of a sale of gasoil, and the cross-appeal concerns a question of the award of interest.
[2000] EWCA Civ 3031
England and Wales
Updated: 09 December 2022; Ref: scu.330968
[1837] EngR 789, (1837) 7 Ad and E 134, (1837) 112 ER 421
England and Wales
Updated: 09 December 2022; Ref: scu.313906
[1837] EngR 773, (1837) 7 Ad and E 108, (1837) 112 ER 411
England and Wales
Updated: 09 December 2022; Ref: scu.313890
Declaration that F. drew his bill on the Defendant, who accepted the same ; that F. then indorsed the bill to S., who delivered it to the Plaintiff, Held, ill.
[1837] EngR 774, (1837) 3 Bing NC 828, (1837) 132 ER 629
England and Wales
Updated: 09 December 2022; Ref: scu.313891
[1837] EngR 760, (1837) 7 Ad and E 19, (1837) 112 ER 378
England and Wales
Updated: 09 December 2022; Ref: scu.313877
[1837] EngR 753, (1837) 2 Keen 521, (1837) 48 ER 728
England and Wales
Updated: 09 December 2022; Ref: scu.313870
A foreign owner of goods consigned them to a factor in London, to whom he indorsed the bill of lading in blank, and transmitted it, with instructions to receive and sell the goods. The factor received the goods, paid the freight and charges thereon, and entered them in his own name at the Custom House, by reason of which, and without the privity or express assent of the owner, he obtained a dock warrant, which he pledged for advances beyond the amount for which, as a factor, he had a lien on the goods.
Held that, under these circumstances, he was not intrusted with the dock warrant
within the meaning of the second section of the act 6 Geo. 4, c. 94.
[1845] EngR 1172, (1845) 12 Cl and Fin 343, (1845) 8 ER 1440
England and Wales
Updated: 09 December 2022; Ref: scu.304314
[1856] EngR 881, (1856) 6 El and Bl 930, (1856) 119 ER 1110
England and Wales
Updated: 09 December 2022; Ref: scu.291636
[1856] EngR 460, (1856) 18 CB 156, (1856) 139 ER 1326
England and Wales
Updated: 09 December 2022; Ref: scu.291215
[1858] EngR 787, (1858) El Bl and El 563, (1858) 120 ER 619
England and Wales
Updated: 09 December 2022; Ref: scu.289258
[1856] EngR 592, (1856) 6 El and Bl 659, (1856) 119 ER 1009
England and Wales
Updated: 09 December 2022; Ref: scu.291347
Lady Justice Arden
[2008] EWCA Civ 682
England and Wales
Updated: 09 December 2022; Ref: scu.270368
The test for whether there had been a derogation from a grant was whether there had been a substantial deprivation of benefit, rather than a total deprivation. The principle of non-derogation from grant is ‘not based on some ancient technicality of real property. As Younger LJ observed in Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] Ch 200 at pp 225, it is a principle which merely embodies in a legal maxim a rule of common honesty. It was imposed in the interest of fair dealing.’
Nicholls LJ
[1988] 1 EGLR 264
England and Wales
Cited – Stone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
Cited – Rees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.244795
Lord Denning MR said: ‘The doctrine of derogation from grant is usually applied to sales or leases of land, but it is of wider application. It is a general principle of law that, if a man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of the employment of that benefit: because that would be to take away with one hand what is given with the other.’
Lord Denning MR
[1975] 30 P and CR 186
England and Wales
Cited – Stone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
Cited – Rees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.244794
A clause providing that the employer could dismiss an employee in the first two years of employment without implementing the disciplinary procedure was not void under the 1977 Act. Section 3 extended to contracts of employment and although the meaning was ‘artificial’, an employee dealt ‘as a consumer’ with his employer. However the claim failed as the clause in question did not come within clause 3 (2) of the 1977 Act, not being a contract term excluding or restricting liability of the employer in respect of breach of contract.
Morland J
[2000] IRLR 94
Unfair Contract Terms Act 1977 3
England and Wales
Cited – Chapman v Aberdeen Construction Group 1991
It having been conceded that contracts of service fell within section 15 of the 1977 Act, the court found that the question whether the contract was a consumer contract depended on the circumstances. Though the employee pursuer was to be regarded as . .
Cited – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.246221
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this breach, and before the commencement of the action, became bankrupt; and the question was, whether this cause of action passed from the plaintiff to his assignees.
Held: Lord Mansfield said: ‘The general principle is, that all rights of the bankrupt which can be exercised beneficially for the creditors do so pass, and the right to recover damages may pass though they are unliquidated . . This principle is subject to exception. The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely, not curing, not saving from imprisonment by process of law . .’
Lord Mansfield, Erle CJ
[1849] EngR 843, (1849) 2 HLC 579, (1849) 2 HL Cas 579, (1849) 9 ER 1213
England and Wales
See Also – Beckham v Knight And Drake 24-Jan-1838
K and S having entered into a written engagement to employ Plaintiff in their trade for seven years.
Held: The Plaintiff could not sue D, a dormant partner with K. and S., but not party to the agreement. . .
See Also – Beckham v Knight And Drake CEC 28-Jun-1840
By a contract between the plaintiff and A and B, it was agreed that the plaintiff should serve A and B as foreman in their business for seven years, if A and B, or either of them, should so long live. – The plaintiff having subsequently discovered . .
See Also – Beckham v Drake, Knight, And Surgey 10-Jul-1841
. .
See Also – Beckham v Drake, Knight, And Surgey 19-Nov-1841
. .
See Also – Drake And Others v Beckham 6-Feb-1843
. .
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.185412
To seek perfect consistency and economy of draftsmanship in a complex form of contract which has evolved over many years is to pursue a chimera.
(1779) 1 Dougl 268
England and Wales
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.180648
The court considered the validity of beer ties affecting public houses.
Lord Justice Schiemann Lord Justice Mance Lord Justice Morritt
[1999] EWCA Civ 1501
England and Wales
Appeal from – Courage Limited v Crehan ChD 25-Nov-1998
. .
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
See Also – Courage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey CA 14-Jun-1999
There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to . .
Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
See Also – Courage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
See Also – Courage Ltd v Crehan CA 12-Nov-2001
. .
See Also – Crehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
See Also – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
See Also – Inntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
Cited – Parks v Esso Petroleum Company Limited CA 23-Jul-1999
The claimant sought to add a claim under the regulations for compensation after termination of his agency for the defendants. The lower court had rejected his claim saying that the petrol products he sold were at a price fixed by Esso, and that . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.146416
[1999] EWCA Civ 1252, [1999] 2 Lloyd’s Rep 129
England and Wales
Appeal from – Lukoil-Kaliningradmorneft Plc v Tata Ltd and Another ComC 1-Oct-1997
ComC Contract of towage – whether hirer had actual or apparent authority to contract on behalf of owner – whether contract of towage involved bailment – whether tug owners entitled to rely on contractual lien . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.146167
Part of a chose in action is not capable of being validly separately assigned in order to stop a court action.
Times 10-Oct-1996
England and Wales
Appeal from – Investors Compensation Scheme Ltd v West Bromwich Building Society and Others CA 1-Nov-1996
Public policy rendered an assignment of a remedy void, where the assignment was an attempt to split it from another remedy. For the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of . .
At First Instance – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.82415
Whether the Appellant was precluded from securing summary judgment on monies due under a guarantee because it had not adduced in evidence the executed counterpart of the guarantee.
Mr Justice Johnson
[2020] EWHC 1670 (QB)
England and Wales
Updated: 07 December 2022; Ref: scu.652130
Mr Justice Zacaroli
[2020] EWHC 1619 (Ch)
England and Wales
Updated: 07 December 2022; Ref: scu.652126
[2020] EWHC 1563 (Ch)
England and Wales
Updated: 07 December 2022; Ref: scu.651902
[2012] EWHC 1193 (Ch), [2013] WTLR 419, [2013] 1 BCLC 750, 15 ITELR 387
England and Wales
Updated: 07 December 2022; Ref: scu.651721
[2019] ScotCS CSOH – 58, 2019 SLT 1011, 2019 GWD 25-403
Scotland
Updated: 07 December 2022; Ref: scu.641170
Claim by a mobile network and telecommunications distribution company for Orange and T-Mobile (now ‘Everything Everywhere’ [‘EE’]) against one of its former dealers for specific and/or cumulative repudiatory breaches of contracts and a counterclaim by him for wrongful termination of them.
[2015] EWHC 1580 (QB)
England and Wales
Updated: 07 December 2022; Ref: scu.548006
Two applications by the Claimant for judgment on admissions and two cross-applications by the Defendants that they should have until 1 January 2011 to pay the sum sued for, liability in respect of those sums being admitted.
Field J
[2010] EWHC 2601 (QB)
England and Wales
Updated: 07 December 2022; Ref: scu.425659
Claims and counterclaims arising out of contracts for the provision of logistical services by the Defendant and its predecessor to the Claimant.
His Honour Judge Stephen Davies
[2010] EWHC 2896 (QB)
England and Wales
Updated: 07 December 2022; Ref: scu.425971
The Honourable Mr Justice Beatson
[2010] EWHC 1882 (QB)
England and Wales
Updated: 07 December 2022; Ref: scu.424875
The fact that the parties have foreseen the event but not made any provision for it in their contract will usually, but not necessarily, prevent the doctrine of frustration from applying when the event occurs.
(1992) 58 Build LR 1
England and Wales
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.402549
Alleged misrepresentation as to conversion of property to two flats.
[2009] EWCA Civ 1000
England and Wales
Updated: 07 December 2022; Ref: scu.375598
Pill, Wall, Moore-Bick LJJ
[2009] EWCA Civ 310, [2009] 2 Lloyd’s Rep 224, [2009] 2 All ER (Comm) 1060
England and Wales
Updated: 07 December 2022; Ref: scu.331095
Appeal from refusal of summary judgment
Burnett J
[2009] EWHC 713 (QB)
England and Wales
Updated: 07 December 2022; Ref: scu.341873
Defendant’s agent told plaintiff that he had called to tender andpound;8 in settlement of defendant’s account ; plaintiff answered that he would take nothing leas than the bill, which defendant’s agent produced at the time, amourttirig to andpound;19. Held, that the question whether this tender was conditional or unconditional, was proper to be Ieft to the jury.
[1837] EngR 770, (1837) 7 Ad and E 80, (1837) 112 ER 401
England and Wales
Updated: 07 December 2022; Ref: scu.313887
[1853] EngR 540, (1853) 13 CB 652, (1853) 138 ER 1355
England and Wales
Updated: 07 December 2022; Ref: scu.294526
Diplock J discussed the effect of a waiver: ‘Waiver does not vary the terms of the contract . . Waiver is conduct on the part of a party to a contract which affects his remedies for a breach of contract by the other party.’
Diplock J
[1960] 2 Lloyd’s Reports 340
England and Wales
Cited – Rhodia International Holdings Ltd and Another v Huntsman International CA 11-Jun-2007
There was a challenge to the validity of a sale and purchase agreement which included an assignment of a contract which would require novation.
Held: A long standing acquiesecence in one breach of the contract did not amount to a grant pf . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.267737
The promoter of companies had promised the bearers of share warrants that they should have dividends for so many years, and the promise as alleged was held not to shew any consideration.
Held: Any promise had been made to the original bearer and not to the plaintiff, and that as the plaintiff was not suing in the name of the original bearer there was no contract with him, and there was no consideration shewn for the promise to him.
Lord Campbell
[1853] 2 EB 476
England and Wales
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.267726
[1854] 12 MW 758
England and Wales
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.267729
Lord St. Leonards: ‘ Tell me what you have done under such a deed and I will tell you what that deed means.’
Lord St. Leonards
[1842] 1 Dr and War 353
England and Wales
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.251069