Category: Contract

Attorney-General v Drummond: 1842

Lord St. Leonards: ‘ Tell me what you have done under such a deed and I will tell you what that deed means.’

Judges:

Lord St. Leonards

Citations:

[1842] 1 Dr and War 353

Jurisdiction:

England and Wales

Cited by:

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.

Contract

Updated: 07 December 2022; Ref: scu.251069

McLaughlin v Daily Telegraph Newspaper Co. Ltd: 15 Jul 1904

(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our judgment, establish that a contract made by a person actually of unsound, but apparently of sound mind with another who deals with him directly, and who has no knowledge of the unsoundness of mind, is as valid as if the unsoundness of mind had not existed. If the man dealing with the person of unsound mind is aware of his insanity, the contract is voidable at the option of the latter, but the party who takes advantage of the other cannot himself set up the incapacity. In this respect the matter is treated on the same footing as cases of fraud inducing a contract. There is, indeed, authority for saying that the equitable doctrines governing the validity or invalidity of a contract made with an insane person are only a particular instance of the general doctrines relating to fraudulent contracts. In the cases last mentioned no unfairness of dealing could be imputed to the persons who sought to take advantage of the contract, which was, in fact, made, In each case, with an apparently sane person. The principle appears to be that the validity of a contract made with an apparently sane person is to be determined – by the application of the same rules as are applied in ordinary cases.’

Judges:

Griffith CJ

Citations:

[1904] 1 CLR 243, [1904] UKPC 46

Links:

Bailii

Jurisdiction:

Australia

Citing:

Cited – Molton v Camroux CEC 2-Jan-1848
The buyer of annuities from a company was of unsound mind. The company had acted in its normal course of business.
Held: The court asked ‘whether the mere fact of unsoundness of mind, which was not apparent, is sufficient to vacate a fair . .
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .

Cited by:

Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Cited – Archer v Cutler 1980
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental . .
Cited – Hart v O’Connor, O’Connor O’Connor PC 22-May-1985
(New Zealand Court of Appeal) The Board reversed the decision which had rescinded an agreement for the sale of land by a vendor aged eighty-three years and of unsound mind. In rejecting a submission that the transaction constituted an unconscionable . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 December 2022; Ref: scu.252448

Aubert v Walsh: 1810

The parties had wagered on 15 September 1808 that the war with France would end before 1 July 1810. One party to the wager withdrew in October 1808, and sought recovery of his stake.
Held: He was entitled to its return. Lord Mansfield said: ‘why should not a man say, you and I have agreed so and so, but the agreement is good for nothing; I cannot bind you, and you cannot bind me, therefore I desire, before the event happens, that you will pay me back my money.’

Citations:

(1810) 3 Taunt. 277

Jurisdiction:

England and Wales

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 December 2022; Ref: scu.259416

369413 Alberta Ltd v Pocklington: 21 Nov 2000

(Court of Appeal of Alberta) The court set out a number of propositions as to the intention required for inducing a breach of contract. These included inferred intention and recklessness. The Court of Appeal held as follows: ‘In order to find liability [for inference with contractual relations], a plaintiff must demonstrate that the defendant had an ‘intent’ to induce the breach of contract. The intent component of the tort is the most difficult to understand. Malicious motive, unlawful conduct, hatred or intention to harm are not required elements of intent: Allen v Flood, [1898] AC 1 9H.L.(E,));Parks West Mall Ltd v Jennett (1996), 36 Alta.L.R. (3d) 44 (C.A.) at 49; and Atcheson v College of Physicians and Surgeons (Alberta), [1994] 6 W.W.R. 239 (Alta.Q.B) at 246. However, what is required is less clear. The requisite intent has been described with ‘loose, vague and conflicting statements’ that sometime appear to be irreconcilable: Ed Miller Sales, supra, at 230.

Originally, the tort required the breach to be the result of wilful, deliberate and direct conduct which the defendant knew or hoped would result in a violation of the plaintiff’s contractual rights. See for example, Lumley v Gye (1853), 118 E.R. 749, 2 El. and B1.216 (Q.B); and Quinn v Leathem, [1901] A.C.495 (H.L.(I.)).

However, courts soon recognized that intent can also be inferred when the consequences of the conduct were a necessary or reasonable foreseeable result, because ‘people are presumed to intend the reasonable consequences of their acts’: South Wales Miners’ Federation v Glamorgan Coal Company, [1905]A.C.239 (H.L.(E.)) at 244. In Posluns v Toronto Stock Exchange and Gardiner (1965), 46 D.L.R. (2d) 210 (Ont. H.C) at 267; affirmed (1966), 53 D.L.R (2d) 193 (C.A.); affirmed [1968] S.C.R. 330, 67 D.L.R. (2d) 165, the court held that liability would attach if the defendant’s conduct resulted in the breach of a contract ‘of which it was or ought to have been aware’. The intention to bring about a breach of contract need not be the primary object; it is sufficient if the interference is necessarily incidental to attaining the defendant’s primary objective: Fraser v Board of Trustees of Central United Church (1983), 38 O.R. (2d) 97 (H.C.J.) at 103′ and Bank of Nova Scotia v Gaudreau (1985), 48 O.R. (2d) 478 (H.C.J.). [41] Intention can also be established when the defendant was reckless or wilfully blind to a breach. The defendant need not have actually known the precise terms of the contract or that his object only could be accomplished through breach of the contract. ‘If – turning a blind eye – he went about it regardless of whether it would involve a breach, he will be treated just as if he had knowingly procured it’: J.G. Fleming, The Law of Torts, 8th Ed. (Sydney: law Book Co., 1992) at 694.

Turning a blind eye may include situations in which the defendant failed to seek advice or employ the means available to obtain the necessary knowledge. For example, in Royal Bank of Canada v Wilton (1995), 165 A.R. 261, D.L.R. (4th) 266 (C.A.), the defendant was uncertain about the enforceability of a contract, had the ‘means of knowledge’ to determine if a legitimate contract existed, but made no efforts to seek advice. This court found the defendant liable because he deliberately chose not to acquire the information, but proceeded on the basis that the contract was unenforceable. Similarly, when there are competing legal interpretations and the defendant adopts an interpretation which will interfere with the plaintiff’s rights, the defendant ‘must at least show that he was advised and honestly believed that he was legally entitled to take that course’: Swiss Bank v Lloyds Bank, [1979] Ch.548 at 580 (CH.D.); reversed on other grounds [1982] A.C. 584 (C.A.); affirmed [1982] A.C. 604 (H.L.(E)).
If the defendant acted under a bona fide belief that contractual rights would not be infringed, liability will not be found even though the belief turned out to be mistaken. But for a mistaken belief to be bona fide, rather than the result of recklessness or wilful blindness, some basis for the belief must exist, and some reasonable effort must have been made by the defendant to learn the truth. In British Industrial Plastics Ltd. v Ferguson, [1940] 1 All E.R. 479 (H.L.(E.)), the defendants who had made the effort to seek advice were not found liable even though their belief was described as ‘illogical’. In Z-Mark International Inc. v Leng Novak Inc. (1996), 12 O.T.C. 33 (Gen. Div.), appeal dismissed (1999), 122 O.A.C. 341, a defendant made inquiries and obtained assurances and a warranty. The court found that the defendant had no reason to doubt the assurance or the warranty and therefore the defendant was not knowingly or recklessly indifferent to a breach of contract.

In some cases a distinction is drawn between direct interference, for which the breach must be foreseeable or reasonable consequence of the conduct, and indirect interference, for which the breach must be necessary or substantially certain consequence. See, for example, L.N. Klar, Tort Law, 2nd ed. (Scarborough: Carswell, 1996) at 498 and 507; Fleming, supra, at 694; D.C. Thomson and Co. Ltd. V Deakin ,[1952] Ch. 646 (C.A.); Bank of Nova Scotia, supra; Garry v Sherritt Gordon Mines Ltd., [1988] 1 W.W.R. 289, 45 D.L.R. (4d) 22 (Sask. C.A.); and Atcheson, supra.

[45] As this case involves direct interference, this distinction does not arise. Pocklington, as the director of Gainers, executed the documents to complete the transfer of the 350151 shares to his own company. The transfer caused Gainers to breach s. 12.03(1) of the Master Agreement, which prohibited dispositions of assets without Alberta’s consent. Therefore, if the breach was a reasonable or foreseeable consequence of that transfer, or alternatively, if Pocklington completed the transfer recklessly, was wilfully blind to its consequences, or was indifferent as to whether or not it caused a breach, the necessary intent element for the tort will be met.’

Citations:

(2001) 194 DLR (4th) 109

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Torts – Other

Updated: 07 December 2022; Ref: scu.229818

Holiday Inns Inc v Broadhead: 1974

The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, entitling the plaintiff to relief in equity. The defendant had repeatedly assured the plaintiffs that he would stand by his word.
Held: Goff J said: ‘while they [i.e. the plaintiff] have never suggested that the understanding, arrangement or bargain was sufficiently precise to be enforceable as a contract, they claim to be entitled to relief in equity.’ and ‘In my judgment the authorities clearly establish that there is a head of equity under which relief will be given where the owner of property seeks to take an unconscionable advantage of another by allowing or encouraging him to spend money, whether or not on the owner’s property, in the belief, known to the owner, that the person expending the money will enjoy some right or benefit over the owner’s property which the owner then denies him. This arises where the person expending the money does so under a mistaken belief that the property is his own, that belief being known to the other, as in Ramsden v Dyson (1866) LR 1 HL 129, but mistake is not an essential element of a claim to relief of this nature. The authorities also establish, in my judgment, that this relief can be granted although the arrangement or understanding between the parties was not sufficiently certain to be enforceable as a contract, and that the court has a wide, albeit of course judicial, discretion to what extent relief should be given and what form it should take.’ and ‘Mr Waite [counsel for the defendants] . . rested his case on what he described, and rightly described, as the crucial question whether there was present a belief on the part of the plaintiffs, induced by Mr Broadhead’s words or silence, that they would receive a sufficient interest in the land to justify the expenditure. He said this was an arrangement between commercial men dealing with each other at arm’s length with their eyes open, and so the plaintiffs must be taken to have elected as a matter of commercial judgment to run the risk that Mr Broadhead might, as I add he clearly did, have private reservations undisclosed at the date of the expenditure which might frustrate the conclusion of the anticipated bargain, and indeed they might have similar reservations themselves. I am wholly unable to draw any such inference or conclusion. Mr Wilson’s [the head of the plaintiff] evidence, which I accept, was that he thought this was a gentleman’s agreement which would be honoured. Mr Tigrett [the plaintiff’s representative] in his evidence, which I also accept, said that no reservations or thought of backing our ever occurred to him, and the whole tenor of Mr Broadhead’s conduct and letters was calculated to make the plaintiffs believe that if planning permission were obtained they would have a straight 3 and 1 lease on the standard terms. I am satisfied and find as a fact that both Mr Wilson and Mr Tigrett believed that and Mr Broadhead well knew that they did. His failure to inform them of his true state of mind was deceitful and unconscionable. ‘ The plaintiff had made out a clear case for relief. The plaintiff’s equity was best satisfied by a declaration that the site was held upon trust for sale, and, as to the proceeds of sale, after paying various costs and expenses, on trust for the plaintiff and defendants in equal shares.

Judges:

Goff J

Citations:

(1974) 232 EG 951

Jurisdiction:

England and Wales

Citing:

Cited – Ramsden v Dyson HL 11-May-1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .

Cited by:

Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 07 December 2022; Ref: scu.223729

Scott v Brown, Doering, McNab and Co: 1892

The plaintiff sought rescission of a contract for the purchase of shares, but failed because the contract had been entered into with the sole object of rigging the market by inducing the public to believe that there was a real market for the shares and that they were at a premium. The intention was not to make use of the shares in an unlawful way but to make use of the share contract to defraud the public.
Held: The plaintiff was found to have created a false market in shares by his false and fictitious acts.

Citations:

[1892] 2 QB 724

Jurisdiction:

England and Wales

Cited by:

Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 December 2022; Ref: scu.194059

Schneider v Norris: 1814

The name of a seller was printed on a bill of parcels but he in turn wrote on the contract the name of the purchaser.
Held: The seller had adopted the writing of his own name and a signature within the Statute of Frauds. The essential attributes of a signature are recognition and approval of the contents of the document; it does not necessarily need to be in manuscript form provided that the party adopts the printed name as his own.

Judges:

Lord Ellenborough CJ

Citations:

(1814) 2 MandS 286

Statutes:

Statute of Frauds 1677 4

Jurisdiction:

England and Wales

Cited by:

Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 December 2022; Ref: scu.188226

Selby v Selby: 1817

Signing: ‘That is signing is, putting his name to [the document] or [doing] some other act intended by him to be equivalent to the actual signature of the name – such as a person unable to write making his mark’.

Judges:

Grant MR

Citations:

[1817] 3 Mer 2

Jurisdiction:

England and Wales

Cited by:

Cited – Edgell v Glover, Garnett (Returning Officer) QBD 4-Nov-2003
The constituency had adopted an all postal ballot, resulting in a counted majority of one. One ballot paper’s confirmation of identity had not been signed.
Held: The function of the court, exercising its jurisdiction under section 48(1), is . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 December 2022; Ref: scu.187490

Mullens v Miller: 1892

Where an agent enters into a contract on behalf of a principal and the opposite party has been induced to enter into it by an innocent misrepresentation by the agent, the opposite party is entitled to rescission provided that the making of a representation of that kind was within the actual or apparent authority of the agent.

Citations:

[1892] 22 Ch D 194

Jurisdiction:

England and Wales

Cited by:

Cited – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 December 2022; Ref: scu.186443

Pollard v Photographic Co: 1888

Mrs Pollard had contracted with the defendant for photographs to be taken of herself for her own purposes. She found that the defendant was using the photograph for quite different purposes. She argued that, she having contracted for the photograph to be taken for one purpose, there was an implied term that it should not be used for any other.
Held: Such an implied term did exist.

Judges:

North J

Citations:

(1888) 40 Ch Div 345

Jurisdiction:

England and Wales

Cited by:

Cited – Douglas etc v Hello! Ltd etc ChD 11-Apr-2003
The claimants were to be married. They sold the rights to publish photographs of their wedding, but various of the defendants took and published unauthorised pictures.
Held: The claimants had gone to lengths to ensure the commercial value of . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract

Updated: 07 December 2022; Ref: scu.181411

Patten v Burke Publishing Ltd: ChD 1991

The publisher to whom the plaintiff author had sold the rights to his book became insolvent. He sought a declaration that it would be in breach of the contract.
Held: The guiding principle which determines how the discretion is to be exercised whether to grant declarations is that the Court must do what is necessary to achieve justice. If a contract had been repudiated, and was no longer in effect, a declaration would be the way to achieve fullest justice by making it clear to the plaintiff that he was free of the contract.

Judges:

Millet J

Citations:

[1991] 1 WLR 527

Jurisdiction:

England and Wales

Cited by:

Cited – Financial Services Authority v Rourke ChD 19-Oct-2001
The applicant sought a declaration that the defendant had acted in breach of the Act, in accepting sums by way of deposit, without being authorised, and had made prohibited statements to attract such deposits. Could a civil court make such a finding . .
Cited – L’Oreal (UK) Limited and Another v Johnson and Johnson and Another ChD 7-Mar-2000
The claimant appealed against an order striking out their threat action for trade mark infringement, in respect of the words ‘No Tears’ when used for children’s shampoo.
Held: The court had to consider both the letter and the surrounding . .
Cited – Point Solutions Ltd v Focus Business Solutions Ltd and Another ChD 16-Dec-2005
It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 07 December 2022; Ref: scu.180658

The Zephyr: 1984

Whilst it is possible to make a contract which is partly oral and partly written, that is not the practice of the marine insurance market. The policy is the formal contractual document issued to the assured and unequivocally contains the terms of the contract. A contract of marine insurance is inadmissible in evidence unless contained in a policy signed by the insurer.

Judges:

Hobhouse J

Citations:

[1984] 1 Lloyds LR 58, [1985] 2 LLR 529

Jurisdiction:

England and Wales

Cited by:

Cited – Sun Life Assurance Company of Canada (A Company Established Pursuant To the Laws of Canada) v CX Reinsurance Company Limited (Formerly CNA Reinsurance Company Ltd) CA 6-Mar-2003
The claimant appealed a refusal to order that a dispute between insurer and re-insurer be referred to arbitration. One party sought to avoid liability under the policy, alleging misrepresentation. Discussions had been undertaking settling a revised . .
Cited – Tryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 07 December 2022; Ref: scu.179738

A v B: SCS 25 Jan 1540

Gif the creditour makis and constitutis ane assignay and cessioner, to ony debt auchtand to him, and makis intimatioun of the samin assignatioun to the debtour, the samin is sufficient in all time cuming to seclude him fra all actioun that he had, or may have, agains the said debtour, albeit he that is assignay mak na inimatioun of the said assignatioun to the debtour.

Citations:

[1540] Mor 843

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 06 December 2022; Ref: scu.543979

Johnston v Robertson: 1861

The parties agreed for the pursuer to erect a poor-house, to be completed and the keys were to be delivered by a specified day, under a penalty of andpound;5 per week of delay in completing it.
Held: This was not a penalty but a provision for pactional damages. Since the pursuer’s claim for the price was itself illiquid, there could be no objection to the defender seeking to establish his countervailing illiquid claim for the appropriate pactional damages in the event that the jury held that the pursuer had not completed the works in time. Depending on the finding of the jury as to whether the work had been done properly, and as to any sum due as liquidated damages for delay, the pursuer’s claim for the price would be reduced or, conceivably, extinguished.
Lord Justice Clerk Inglis said: ‘Every action on a mutual contract implies that the pursuer either has performed, or is willing to perform, his part of the contract; and it is, therefore, always open to the defender to say that under the contract a right arises also to him to demand performance of the contract before the pursuer can insist in his action.’

Judges:

Lord Justice Clerk Inglis

Citations:

(1861) 23 D 646

Jurisdiction:

Scotland

Cited by:

Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.410710

Edwards-Wood v Baldwin: 3 Dec 1863

On a bill by the Plaintiff, who while Lodging at an hotel, and seriously ill, executed a bond to the Landlord for pounds 1000 payable at six months’ date, to secure moneys paid and advanced for the Plaintiff for hotel charges, the landlord undertaking to rectify all errors in the accounts, the Court restrained an action at law on the bond, the Plaintiff giving judgment for the amount of the claim.

Citations:

[1863] EngR 1036, (1863) 4 Giff 613, (1863) 66 ER 851

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 06 December 2022; Ref: scu.283691

Harris’s Case: 1584

Judges:

Mellish LJ

Citations:

[1584] Law Rep 7 Ch 587

Jurisdiction:

England and Wales

Cited by:

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.

Contract

Updated: 06 December 2022; Ref: scu.267728

Skipsredittforeningen v Emperor Navigation SA: 1997

The court considered the reaonableness of a contract clause which sought to exclude liability for misrepresentation: ‘The consequence of the approach adopted in Stewart Gill [[1992] 1 QB 600] is (as the present case shows) that the court may hear arguments that a term is or may be unreasonable (and so wholly void in relation to misrepresentation or breach of contract claims, as the case may be) for reasons or in respects that have nothing to do with the facts of the actual case. Assuming that the whole term will be invalid in this way if it fails the requirement of reasonableness, the court should, I think, take care to consider the clause as a whole in the light of the circumstances when the contract was made, in order to judge in the round whether it satisfies the requirement of reasonableness. The court should not be too ready to focus on remote possibilities or to accept arguments that a clause fails the test by reference to relatively uncommon or unlikely situations.’
The claimant sought summary judgement for sums due under a loan agreement that provided, inter alia: ‘All payments to be made by or on behalf of the Borrowers pursuant to this Agreement . . shall be made without (a) set-off’. The defendant submitted that this clause was unreasonable under UCTA.
Held: Mance J rejected this submission holding that the clause was fair and reasonable. In his view ‘[s]uch a clause in a loan facility like the present is generally familiar, sensible and understandable’.

Judges:

Mance J

Citations:

[1997] 2 BCLC 398, [1998] 1 Lloyd’s Rep 66

Statutes:

Unfair Terms in Consumer Contracts Regulations 1999 4(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Regus (UK) Ltd v Epcot Solutions Ltd CA 15-Apr-2008
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
Cited – Barclays Bank Plc v Kufner ComC 10-Oct-2008
barclays_kufnerComC2008
The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Consumer

Updated: 06 December 2022; Ref: scu.266862

Regus (UK) Ltd v Epcot Solutions Ltd: CA 15 Apr 2008

The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally exclude liability were unfair under the 1977 Act.
Held: The appeal succeeded. Alternative remedies would have been available to the tenant, including mitigation of losses. Though the contract might exclude liabiity for certain acts of the appellant: ‘Liability for fraud or malice, or recklessness which is a species of either, goes without saying: parties contract with one another in the expectation of honest dealing. It is simply that in imposing conditions for the accepting of any liability, Regus did not, by referring to the need for negligence, wish to suggest that an intentional breach of contract could not similarly be made the basis of liability. ‘
The purchaser had been advised to nsure, and would be in a far better position to insure than the seller. The clause was reasonable.

Judges:

Rix LJ

Citations:

[2008] EWCA Civ 361

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Citing:

Cited – Hewitt v Rowlands CA 1924
The landlord had failed to repair the property as required by his covenant.
Held: The primary measure of loss for a breach of a contract to provide such services is the diminution in value of the services promised. . .
Cited – Electricity Supply Nominees Limited v The National Magazine Company Limited; The National Magazine Company Limited v Electricity Supply Nominees Limited, Matthew Hall Limited, Otis Plc, Dtz Debenham TCC 12-Aug-1998
Apportionment of service charges. . .
Cited – Earle v Charalambous CA 28-Jul-2006
Calculation of damages for breach of covenant to repair by landlord. . .
Cited – McCoy and Co v Clark CA 1984
. .
Cited – English Churches Housing Group v Shine CA 7-Apr-2004
The claimant was a secure tenant of English Churches Housing Group. He was unemployed and lived on benefits. He claimed damages against his landlord for breaches of the repairing covenants implied by section 11. The court considerd the appropriate . .
Cited – Wallace and others v Manchester City Council CA 23-Jul-1998
Damages payable to a tenant for a landlord’s failure to repair whilst the tenant remained in the property were not separate damages for discomfort and diminution in rental value since these amounted to the same thing: ‘for periods when the tenant . .
Cited – C Chiodi v De Marney CA 1988
The claimant was a statutory tenant occupying a flat at a registered fair rent of andpound;8 per week. He withheld the rent and was sued for possession. He counterclaimed for damages for breach of the implied covenant on the part of the landlord to . .
Cited – HIH Casualty And General Insurance Limited and Others v The Chase Manhattan Bank and Others CA 31-Jul-2001
Parties syndicating finance for a film obtained the security of an insurance which is designed to pay up to the sum insured, if the revenues generated by the film were insufficient to repay the loan finance plus associated expenses. The polices were . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Davis Turner and Co Ltd v Granville Oil and Chemicals Ltd CA 15-Apr-2003
The time bar provision, now found in cl. 28(B) of BIFA, satisfied the requirements of reasonableness under UCTA. . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Cited – Skipsredittforeningen v Emperor Navigation SA 1997
The court considered the reaonableness of a contract clause which sought to exclude liability for misrepresentation: ‘The consequence of the approach adopted in Stewart Gill [[1992] 1 QB 600] is (as the present case shows) that the court may hear . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd HL 1983
A seedsman sought to rely upon an exclusion clause preventing any claim by a purchaser by way of set off against its sales invoices. The House was asked whether a contractual term was ‘fair and reasonable’ within the meaning of section 55 of the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.266800

Crosse v Gardner: 1689

Holt CJ said: ‘an affirmation at the time of sale is a warranty, provided it appear on evidence to have been so intended.’

Judges:

Holt CJ

Citations:

(1689) Carth 90

Jurisdiction:

England and Wales

Cited by:

Cited – Pasley v Freeman 1789
Tort of Deceit Set Out
The court considered the tort of deceit. A representation by one person that another person was creditworthy was actionable if made fraudulently. A false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.266989

Aziz v Mayfair Casinos Ltd: 30 Jun 1982

Cheques to buy gambling chips were drawn on a bank which, to the knowledge of the punter but not of the club, did not exist. The gambler said that the cheques amounted to the giving of credit under the Act and that the transactions were void.
Held: The instruments were cheques and that the non-existence of the bank, unknown to the club, did not make them in breach of section 16.

Judges:

Hobhouse J

Citations:

Times 30-Jun-1982

Statutes:

Gaming Act 1968 16

Jurisdiction:

England and Wales

Cited by:

Cited – Aspinall’s Club Ltd v Al-Zayat CA 19-Oct-2007
The claimant had sued the defendant for non-payment under a cheque for andpound;2 million. The cheque had been issued to replace earlier cheques given but not met, for sums staked for gambling at the claimant’s casino. The defendant said that the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.259934

Baynham v Guy’s Hospital: 1796

A legal deed is not to be construed by reference to the acts of the parties.

Citations:

(1796) 3 Vesey 295, [1775-1802] All ER Rep 536, (1796) 30 ER 1019

Jurisdiction:

England and Wales

Cited by:

Cited – Marjorie Burnett Ltd v Barclay ChD 12-Dec-1980
A lease was created of a shop, dwellings and out-buildings. By clause 6 the tenant had a right to renew the lease, with the new lease creating the same provision. The defendant claimed that as a perpetually renewable lease it took effect as a lease . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.259711

Embiricos v Sydney Reid and Co: 1914

What constitutes a frustrating event something to be ascertained only at the time when the parties to the contract are called on to make up their minds.

Judges:

Scrutton J

Citations:

[1914] 3 KB 45

Jurisdiction:

England and Wales

Cited by:

Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.259067

Lebeaupin v Richard Crispin and Company: 1920

Two contracts sold 2500 cases of ‘British Columbia Fraser river salmon’. The first said: ‘The salmon to be the first 2500 cases of half lb flat pinks packed by the St Mungo Cannery during the season of 1917’. The second provided: ‘The salmon to be the first 2500 cases of .5 lb flat pinks packed by the Acme Cannery.’ To cover themselves on the contracts the sellers made contracts with a third party who in turn made contracts with the St Mungo and the Acme Canneries. The St Mungo Cannery found that a quantity of their tins was defective and by the time they had replaced them the run of salmon in 1917 had ceased. The Acme Cannery filled their 1 lb tins first and when they came to use their .5lb tins the run of fish had ceased. By reason of these events the sellers were unable to fulfil the two contracts, and when faced with a claim for non-delivery pleaded, inter alia, that both contracts had been frustrated. The umpire found in favour of the buyers.
Held: The award was upheld. McCardie J said: ‘In my opinion the decision in Howell v Coupland does not cover the present case. The vendors here must, I think, be treated, for the purposes of the present contracts, as occupying the position of the St Mungo Cannery Co. and the Acme Cannery Co. They cannot rely on any defence or failure of subject-matter which those companies (if they were defendants in the present proceedings) would be disabled from relying upon. This being so, I point out that it is clear that there was no failure of the fish crop at all. It was indeed larger than usual. The reason for the default was in the one case the omission of St Mungo Co to provide good tins, and was in the other case the deliberate choice of Acme Co to pack 1 lb tins in priority to .5 lb tins . . . There is no scope here for an application of the Howell v Coupland principle. If it were to be applied to such a case as the present, the result would be greatly to impair the obligation of vendors.’

Citations:

[1920] 2 KB 714

Jurisdiction:

England and Wales

Cited by:

Cited – CTI Group Inc v Transclear Sa Comc 14-Sep-2007
The parties had contracted for the sale of concrete. The buyers appealed findings by an arbitrator that the contracts were both frustrated for the inability of the seller to complete after the intervention of a company with an effective monopoly, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.259381

Tremills v Benton: 1892

A lunatic who appeared to be sane, entered into a contract. His representatives sought to set aside deeds of gift by the lunatic to the defendants. The administrator sought to set aside the deeds on the ground that their execution was obtained by undue influence, and secondly on the ground that Tremills was, to the knowledge of the Bentons, of unsound mind. The trial judge found that although Tremills was in full possession of his faculties, he suffered from delusions; he was not however acting in subjection to any undue influence.
The Chief Justice said: ‘Was the contract itself, which was entered into by the parties, a fair and bona fide contract? If it was, this case is clearly within the legal and the equitable rule by which such a contract, if executed and completed, is to be upheld, although it has been made by a person of unsound mind with another person who has no knowledge that he is contracting with a lunatic. In determining whether a contract is or is not unfair, the adequacy of the consideration is, as the learned primary judge observed, one of the elements to be regarded; but it should be added that it is only one element, and that in order to justify the avoidance of a contract on this ground, the inadequacy of the consideration must be so great as to be unconscionable, and to amount in itself to conclusive and decisive evidence of over-reaching or fraud.’ and ‘Holding, as we are bound to do, that proof of undue influence on the part of the defendants has failed, and that the deceased had full possession of his faculties, and perfectly comprehended what he was doing, I cannot find any evidence whatever that the transaction between these parties was in itself wanting in fairness and bona fides. The deceased, who was advised by his solicitor, had a single, definite object in view. Under the influence of an insane delusion, he wished to deprive his son of his property after his own death, while at the same time he sanely and prudently desired ,to retain full possession of it during the remainder of his life, and also to secure for himself the benefits and comforts of a home.
He bargained for this as a condition of his gift, and the defendants complied with his wish, and covenanted to carry it into effect. The burden of the covenant was in the event small in proportion to the money value of the gift, but the disparity was not caused by the act or demand or undue influence of the defendants. They gave the consideration they were asked to give, and that was all that the deceased in his insane delusion, and in his prudent regard for himself, thought of requiring. The bargain was made a legal and binding bargain by the act of the deceased, and apart from the suspicion, which we must hold to be unfounded, of undue influence having been employed to bring it about, presents no trace of fraud or over-reaching on the part of the defendants, although they undoubtedly reaped the larger share of the benefit of the bargain. I think that we should be departing from the principles on which courts of equity have acted in similar cases if these deeds should now be set aside at the instance of the administrator.’
Holroyd J said: ‘After much hesitation, and examining carefully all the authorities that were cited, I have come to the conclusion that a contract entered into with a lunatic by a person who does not know him to be, or suspect him to be, a lunatic, cannot be avoided by the lunatic or by his representatives after his death on the ground merely of the insufficiency of the consideration; but that some fraud or imposition must have been practised by the party who desires to uphold the contract, or something done by him which would render it unconscientious on his part to take advantage of the bargain, to afford a ground for setting it aside. For that reason only I differ from the learned primary judge.’
Hodges J said: ‘The learned judge has found, and in my opinion has so found on sufficient evidence, that there was not undue influence, that there was bona fides on the part of the defendants, and that the defendants did not know that H. Tremills was insane; but he has declared the deeds void on the ground that H. Tremills was insane at the time that he executed them, and that they were not ‘fair’ within the meaning of that word as used in the judgment In Hassard v. Smith, Ir. Rep. 6 Eq. 433 and it is against this decision that the defendants have appealed. The learned judge appears to have acted on the following passage, which he quoted from the case of Hassard v, Smith:- ‘The rule which now prevails, both at law and in equity, in reference to contracts entered Into by a person of apparently sound mind, and not known by the other contracting party to be insane, is, that such contracts, If executed and completed, and if fair and bona fide, will not be held void or set aside’ . This, I think, correctly states the law if the word ‘fair’ be understood in the sense in which the Vice-Chancellor must be taken from the context to have intended that it should be understood. And by ‘fair’ I understand him to mean not unfair, not unconscientious, not over-reaching. I think it refers to a contract not obtained by imposition, but I do not think that it would correctly give the Vice-Chancellor’s meaning to substitute for the word ‘fair’ the words ‘for full consideration’.’ and
‘There the word ‘fairly’ could not, I think, be referring to a perfect equality of the consideration given by each party to the contract. Again, a little further on, the Vice-Chancellor quotes with approval the following passage from Story:- ‘The ground upon which courts of equity now interfere to set aside the contracts and other acts, however solemn, of persons who are Idiots, lunatics, and otherwise non compotes mentis, is fraud’. The Vice-Chancellor could not quote, with approval, Story’s opinion that the ground on which courts of equity set aside these contracts is fraud, if he was deciding that inequality of consideration was a sufficient ground for setting aside such contracts. Again, The Vice-Chancellor a little further on again quotes with approval Story’s view that ‘ If a purchase is made without any knowledge of the incapacity, and no advantage has been taken, courts of equity will not interfere to set aside the contract etc’ Here again the Vice-chancellor shows that what invalidates these contracts is not mere inequality of consideration, but the taking of an advantage. If an advantage is taken, the contract is not ‘fair’.’

Judges:

Holroyd J, Hodges J

Citations:

(1892) 18 VLR 607

Jurisdiction:

Australia

Cited by:

Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.252477

Butler v Baker’s case: 1591

The doctrine that a deed delivered in escrow operates from the time of delivery once the condition is fulfilled, does not operate as against a third party.

Citations:

(1591) 3 CoRep 25a

Jurisdiction:

England and Wales

Cited by:

Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.252348

In re Foster: 1938

Citations:

[1938] 159 LT 279

Jurisdiction:

England and Wales

Cited by:

Cited – In re Miller’s Agreement, Uniacke v Attorney-General ChD 1947
Two partners had covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue claimed estate duty.
Held: The claim was rejected. The daughters were not parties to the agreement, and had no . .
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.251044

Swift v Swift: PC 1863

A claim was made for specific performance of a contract for the payment of an annuity of pounds 40.00 per quarter.
Held: Specific performance was ordered. Lord Plunket LC: ‘ It is said she has a complete remedy at Law for the breach of this contract, and that, therefore, this Court should not interfere. Now, the remedy at Law could only be obtained in one of two ways, either by at once recovering damages for all the breaches that might occur during the joint lives of herself and the defendant, or by bringing four actions in each year, and recovering in each the amount of a quarterly payment of the annuity. Those are the two modes of redress open to the plaintiff at Law. And I am called on to refuse relief here on the ground that such remedies are equally beneficial and effectual for the plaintiff as that which this Court could afford. To refuse relief on such a ground would not, in my opinion, be a rational administration of justice. I do not see that there is any authority for refusing relief, and certainly there is no foundation in reason for doing so.’ As to the case of Adderley: ‘ Applying this to the present case, leaving the plaintiff to proceed at Law and to get damages at once for all the breaches that might occur during the joint lives of her and the defendant, would, in effect, be altering the entire nature of the contract that she entered into: it would be compelling her to accept a certain sum, a sum to be ascertained by the conjecture of a jury as to what was the value of the annuity. This would be most unreasonable and unjust : her contract was for the periodical payment of certain sums during an uncertain period ; she was entitled to a certain sum of money, and she agreed to give up that for an annuity for her own and the defendant’s lives, and to insist on her now accepting a certain sum of money in the shape of damages for it, would be in effect to make her convert into money, what she, having in money, exchanged for an annuity. As to her resorting four times every year to a Court of Law for each quarterly payment of this annuity, it is a manifest absurdity to call that a beneficial or effectual remedy for the plaintiff ; and resting the case on that ground alone, I think I am warranted by the highest authority in granting the relief sought.’

Judges:

Lord Plunket LC

Citations:

[1863] 3 I Eq R 267

Jurisdiction:

Commonwealth

Citing:

Cited – Adderley v Dixon 23-Feb-1824
(Specific Performance) . .

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.251061

Terrapin International Ltd v Inland Revenue Commissioners: 1976

A deed had been delivered in escrow, but, before the condition was fulfilled, the rates of stamp duty changed. The parties disputed the effective date of the transaction.
Held: Walton J considered what was the effect of a deed being held in escrow: ‘A document which is intended to take effect as a deed when conditions have been fulfilled may be executed as an escrow: that is to say, with all the formalities of a deed save that the vital unconditional delivery, which is essential for the proper execution of a true deed, is missing; it is replaced by a conditional delivery, usually express, but capable of being assumed. At this stage, the document is not a deed; and although of course it contains within itself the possibility of becoming an effective deed, a deed rising phoenix-like from the ashes of the escrow, at the stage before the condition is fulfilled it is of no effect whatsoever.’ and referring to Cory: ‘If I may repeat the crucial passage; – ‘So long as it remains an escrow it is not executed as a deed; for delivery again as a deed is required before it becomes one’. It follows in my judgment that . . . the first date on which the deed of exchange which is the subject matter of the present appeal was executed was on the day on which the conditions were fulfilled and it was in the eye of the law for the first time delivered unconditionally and thus for the first time delivered as a deed.’

Judges:

Walton J

Citations:

[1976] 1 WLR 665, [1976] 2 All ER 461

Jurisdiction:

England and Wales

Citing:

Cited – Cory (Wm) and Son Ltd v Inland Revenue Commissioners CA 1964
Diplock LJ discussed the status of a deed delivered in escrow: ‘So long as it remains an escrow it is not yet executed as a deed; for delivery again as a deed is required before it becomes one. While an escrow it conveys nothing, it transfers . .

Cited by:

Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
Lists of cited by and citing cases may be incomplete.

Contract, Stamp Duty

Updated: 06 December 2022; Ref: scu.252344

Adderley v Dixon: 23 Feb 1824

(Specific Performance)

Citations:

(1824), [1824] EngR 376, (1823-1824) 1 Sim and St 607, (1824) 57 ER 239

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Swift v Swift PC 1863
A claim was made for specific performance of a contract for the payment of an annuity of pounds 40.00 per quarter.
Held: Specific performance was ordered. Lord Plunket LC: ‘ It is said she has a complete remedy at Law for the breach of this . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.251062

Norwegian American Cruises A/S (formerly Norwegian American Lines A/S) v Paul Munday Ltd (The “Vistafjord”): 1988

A party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted.

Citations:

[1988] 2 Lloyds Rep 343

Jurisdiction:

England and Wales

Citing:

Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .

Cited by:

Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Stancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 06 December 2022; Ref: scu.185088

Hobbs v London and South Western Railway Co: 1875

The court considered an application for damages for inconvenience in a breach of contract case: ‘for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon, without real physical inconvenience resulting, you cannot recover damages. That is purely sentimental, and not a case where the word inconvenience, as I here use it, would apply.’ However the court upheld an award to a husband and wife for the inconvenience of having to walk home with young children four or five miles late on a drizzling night, although the wife’s catching of a cold was found too remote.

Judges:

Mellor J, Cockburn CJ, Blackburn J

Citations:

(1875) LR 10 QB 111

Jurisdiction:

England and Wales

Cited by:

Not Followed – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Applied – Bailey v Bullock 1950
The court awarded damages against solicitors for the inconvenience to the plaintiff of having to live in an overcrowded house. . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 06 December 2022; Ref: scu.181259

Hopkins v Baird: 1920

An action for recovery of money lent for gambling is maintainable, save only for the statutory prohibitions.

Citations:

1920 2 SLT 94

Jurisdiction:

Scotland

Cited by:

Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.181872

Hope v Tweedie: 1776

The court refused to find an enforceable contract where from the circumstances it was found that the parties cannot have intended that the transactions should have any legal consequences.

Citations:

(1776) Mor 9522

Jurisdiction:

Scotland

Cited by:

Cited – Ferguson v Littlewoods Pools Ltd 1997
The court reviewed a decision on the enforceability of gaming contracts.
Held: Different considerations played a part in the development of the rules with different emphases in different cases. In some cases the ground of decision is that the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.181874

Knight and Co v Stott: 1892

The Court will hear an action which is connected with a gambling transaction if the connection is merely collateral or incidental.

Citations:

(1892) 19 R 959

Jurisdiction:

England and Wales

Cited by:

Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.181871

Astea (UK) Ltd v Time Group Ltd: TCC 9 Apr 2003

The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been exceeded, of what would, in all the circumstances which are by then known to have happened, have been a reasonable time for performance. That broad consideration is likely to include taking into account any estimate given by the performing party of how long it would take him to perform; whether that estimate has been exceeded and, if so, in what circumstances; whether the party for whose benefit the relevant obligation was to be performed needed to participate in the performance, actively, in the sense of collaborating in what was needed to be done, or passively, in the sense of being in a position to receive performance, or not at all; whether it was necessary for third parties to collaborate with the performing party in order to enable it to perform; and what exactly was the cause, or were the causes of the delay to performance. The list is not intended to be exhaustive. ‘

Judges:

His Honour Judge Richard Seymour QC

Citations:

[2003] EWHC 725 (TCC), [2003] All ER (D) 212, [2007] Lloyds Rep PN 21

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hick v Raymond and Reid HL 1893
The House was asked whether the consignee of a cargo was in breach of a contractual obligation to discharge the relevant vessel within a reasonable time, that is to say, a single obligation to do something within a reasonable time, rather than an . .
Cited – Charles Rickards Ltd v Oppenheim CA 1950
A buyer of a Rolls-Royce motor chassis agreed for a body to be built upon it by a fixed date. The body was not completed by that date, but after pressing for delivery, he gave a notice that unless delivery of the car with a completed body was . .
Cited – Universal Cargo Carriers Corporation v Citati 1957
The shipowners had cancelled a voyage charter-party because no cargo had been provided. The court asked what delay could lead to a claim for a repudiatory breach of a contract. Devlin J said: ‘This case gives rise to a difficult question. How long . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
Cited – Rightside Properties Ltd v Gray ChD 1975
The vendor had served an invalid notice to complete on the purchaser. When the purchaser did not comply with the notice the vendor purported to terminate the contract by accepting the purchaser’s alleged repudiation. Walton J held that it was in . .
Cited – Dimsdale Developments (South East) Ltd v De Haan 1983
The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the . .
Cited – Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd 1996
The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for . .
Cited – McDonald v Dennys Lascelles Ltd 1-Mar-1933
(High Court of Australia) ‘When a party to a simple contract, upon breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. . .
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – Hyundai Heavy Industries Co Ltd v Papadopoulos HL 1980
A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
Cited – South West Water Services Ltd v International Computers Ltd 29-Jun-1999
The court looked at an allegation that there had been a total failure of consideration: ‘In my view the hardware did not have any significant value to SWW in itself (except for a minimal second hand value). Equally I am satisfied that the customer . .
Cited – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) HL 1989
A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .

Cited by:

Cited – Peregrine Systems Ltd v Steria Ltd CA 14-Mar-2005
The claimant provided computer software to the defendants. The defendants appealed dismissal of their defences arguing that the system had failed.
Held: No repudiatory breach was established, and moreover Steria had elected to affirm the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract

Updated: 06 December 2022; Ref: scu.180764

Modern Building Wales Ltd v Limmer and Trinidad Co Ltd: CA 1975

Where a contract incorporates by reference the terms of another document, the incorporating contract will usually prevail over the terms of document incorporated.
Buckley LJ said, ‘if any of the imported terms in any way conflict with the expressly agreed terms, the latter must prevail over what would otherwise be imported’

Judges:

Buckley LJ

Citations:

[1975] 1 WLR 1281, [1975] 2 All ER 549

Jurisdiction:

England and Wales

Cited by:

Cited – Inverclyde Council v Wilson and 10 Others EAT 5-Sep-2001
The complainants were local authority manual workers. The ‘blue book’ governing their terms required contracts to be for 37 hours unless justified otherwise, and for hours above that to be paid at overtime rates. These employees had contracts at 39 . .
Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.180930

Phoebus D Kyprianou Coy v Wm H Pim Jnr and Co Ltd: 1977

Buyers under a contract are entitled ‘to opt for clarity and certainty if they choose, by waiting until the end of the shipment period’, even though it may be clear that the sellers are in default, rather than allowing themselves to have to declare default following an earlier and possibly curable breach. The sellers were entitled to damages in the ordinary way i.e. based on the difference between the contract prices and the appropriate market price because clause 17(a) contained no option in the sense of an irrevocable election but merely a choice of remedies. While the buyers were in breach before the end of each shipment period they were not entitled to have damages assessed by reference to such earlier dates because (i) the breaches were not breaches of condition and even if they were the sellers were entitled to treat the contract as subsisting; and (ii) the sellers were entitled to wait until the end of each shipment period when the buyers were certainly and irretrievably in default and have damages assessed by reference to that date.

Judges:

Kerr J

Citations:

[1977] 2 Lloyds Rep 570

Jurisdiction:

England and Wales

Cited by:

Cited – Fleming and Wendeln Gmbh and Co v Sanofi Sa/Ag ComC 20-Mar-2003
The parties concluded a contract for the sale and purchase of 20,000MT up to 30,000MT at Sellers’ option Russian/Ukrainian black sunseed crop 1997. The price was to ‘be fixed for each shipment latest 15 days prior delivery . . In case . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 06 December 2022; Ref: scu.180031

Tael One Partners Ltd v Morgan Stanley and Co International Plc: CA 1 May 2013

Morgan Stanley appealed against summary judgment given against it in respect of the application of the terms of a standard form assignment of a Loan agreement.
Held: The words ‘which are expressed to accrue by reference to the lapse of time’, in condition 11.9(a), echo the introductory condition 11.1, which provides that the interest and fees ‘which are expressed to accrue by reference to time elapsed’ are based on the rates contained in the credit agreement (in this case, the facility agreement). Like the judge, Longmore LJ considered that the payment premium was an amount which was ‘expressed to accrue by reference to time elapsed’, since it was an ‘additional amount . . which together with [other sums] equates to an internal rate of return equal to the Loan IRR calculated . . from the date of disbursement up to the date of payment or prepayment’.

Judges:

Longmore, Rimer, Tomlinson LJJ

Citations:

[2013] EWCA Civ 473, [2013] 1 CLC 879

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At First Instance – Tael One Partners Ltd v Morgan Stanley and Co International Plc ComC 9-Jul-2012
Each party sought summary judgment.
Held: Popplewell J granted Tael’s application and dismissed Morgan Stanley’s. The payment premium was similar to interest and performed an analogous function. The cost of the borrowing was more than the . .

Cited by:

Appeal from – Tael One Partners Ltd v Morgan Stanley and Co International Plc SC 11-Mar-2015
This appeal raises a question of contractual interpretation. Its significance lies in the fact that the contractual condition in question forms part of the Loan Market Association standard terms and conditions for par trade transactions which are a . .
Lists of cited by and citing cases may be incomplete.

Contract, Financial Services

Updated: 05 December 2022; Ref: scu.491841

Ian Stach v Baker Bosley Ltd: 1958

The parties contracted for the sale of ship plates fob Benelux port for shipment to Canada in August-September 1956 with payment to be by confirmed irrevocable credit. The buyers failed to open the credit either by August 1st or by August 8th when the sellers called for it to be opened immediately.
Held: It was the duty of the buyers to establish the credit by August 1st at the latest and, although the sellers had waived their right to treat the contract as repudiated by reason of their failure to do so until such time had elapsed after August 8th as could be regarded as ‘immediately’, on August 14th, the sellers had been entitled to accept, as they did, the buyers’ breach was a repudiation of the contract. What was required was that by the time the shipping period started the seller should have received from the banker the assurance that if he performed his part of the contract he would receive payment.
A commercial letter of credit or banker’s credit is more than ‘a mere method of payment’ and ‘creates a direct liability upon the banker independent of the contract of sale, and is an undertaking by the banker that if the seller presents the required documents in the required time he will receive payment of the contract price’.

Judges:

Diplock J

Citations:

[1958] 2 QB 130

Jurisdiction:

England and Wales

Citing:

Binding – Pavia and Co SPA v Thurmann-Nielsen CA 1952
In cif contracts the credit must be opened at the latest at the beginning of the shipment period. The seller is entitled, before he ships the goods to be assured that when he does so, he will get paid. . .

Cited by:

Cited – Kolmar Group Ag v Traxpo Enterprises Pvt Ltd ComC 1-Feb-2010
The claimant sought damages in contract alleging economic duress. They said that at a late stage, when the defendant knew of the urgent needs of the caimant, he imposed an exorbitant change of price.
Held: The claim succeeded. The pressure . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 05 December 2022; Ref: scu.396479

Hudson v Robinson: 1816

A partner in a firm fraudulently contracted in the names of the partnership to sell goods to the plaintiff. He received the purchase price from the plaintiff and then did not delivery the goods.
Held: The plaintiff buyer could recover the purchase price from the fraud as money had and received.
Lord Ellenborough CJ said: ‘It is said that an action for money had and received is not maintainable in this case. But an action for money had and received is maintainable whenever the money of one man has, without consideration, got into the pocket of another. Here the money of the plaintiffs has got into the pocket of the defendant; and the question is whether this has been without any consideration. The consideration was the supposed right of the defendant to dispose of the goods as partnership property, which was the inducement to the plaintiffs to give this bill, under which they have been obliged to pay the money. The defendant had no such right; therefore the absence of any consideration entitles the plaintiffs to maintain this action, and still more so where the money has got into the defendant’s pocket through the medium of a fraud.’

Judges:

Lord Ellenborough CJ

Citations:

(1816) 4 M and S 475

Jurisdiction:

England and Wales

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 December 2022; Ref: scu.259417

Suleman v Shahisavari: 1988

A solicitor signing a contract on behalf of his client should do so only with his client’s express authority. A failure in this duty would leave him liable for breach of warranty of authority. The authority should preferably be written either by a power of attorney or by an express authority.

Citations:

[1989] 3 All ER 460, [1988] 1 WLR 1181

Jurisdiction:

England and Wales

Contract, Legal Professions

Updated: 05 December 2022; Ref: scu.252478

Hohler v Aston: 1920

A Mrs. Aston agreed with her nephew Mr. Hohler to make provision for her niece and her husband, Mr. and Mrs. Rollo. Mrs. Aston died before doing so. Mr. Hohler and Mr. And Mrs. Rollo sued the executors of Mrs. Aston for specific performance
Held: The action succeeded. Sargant J: ‘the third parties, of course, cannot themselves enforce a contract made for their benefit but the person with whom the contract is made is entitled to enforce the contract.’ Mr. Hohler took no benefit under the contract but was allowed to recover.

Judges:

Sargant J

Citations:

[1920] 2 Ch 420

Jurisdiction:

England and Wales

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Wills and probate, Litigation Practice, Contract

Updated: 05 December 2022; Ref: scu.251048

Midland GW Railway of Ireland v Johnson: 1858

Rectification is not available where the mistake is one of law as to the legal effect of particular terms, rather than a mistake of fact.

Citations:

(1858) 6 HLR 798

Jurisdiction:

England and Wales

Cited by:

Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 December 2022; Ref: scu.238578

Saphena Computing Ltd v Allied Collection Agencies Ltd: 1995

The court faced a claim as regards an undeveloped computer system which was sold with bugs ‘warts and all’.
Held: The court spoke of expert evidence that in a bespoke system, bugs were inevitable.

Judges:

Staughton LJ

Citations:

[1995] FSR 616

Jurisdiction:

England and Wales

Cited by:

Cited – Profile Software Ltd v Becogent Ltd OHCS 16-Feb-2005
The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual . .
Cited – Sam Business Systems Ltd v Hedley and Company TCC 19-Dec-2002
. .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract

Updated: 05 December 2022; Ref: scu.242249

Wraight Limited v PH and T (Holdings) Limited: 1968

Citations:

(1968) 13 BLR 29

Jurisdiction:

England and Wales

Cited by:

Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 December 2022; Ref: scu.238575

Brisbane v Dacres: 1813

The commander of a naval vessel, HMS Arethusa, had paid to the Admiral in command a proportion of freight received for the carriage of publicly owned bullion on board the Arethusa in the belief that this was due to the Admiral as a matter of usage. On later discovering that the money was not due because the usage had been discontinued, he sought to recover it from the Admiral’s widow and executrix. He challenged the decision in Bilbie v Limley.
Held: The court had no role to play in the recovery of money paid by mistake. Chief Justice, Sir James Mansfield said it was not an affront to conscience to allow the money to be retained, because the admiral acted (as all admirals then did) in accordance with what was generally believed to be his accustomed right, and in particular because he might have changed his position on the faith of the payment.
Chambre J (dissenting said the maxim ‘ignorantia juris non excusat’ applied only in cases of ‘delinquency’.
Gibbs J described the universal opinion among the practitioners in the Court of King’s Bench that where money was paid with knowledge of the facts it could not be recovered on the ground of mistake: ‘We must take this payment to have been made under a demand of right, and I think that where a man demands money of another as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he never can recover back the sum he has so voluntarily paid. It may be, that upon a further view he may form a different opinion of the law, and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, I think that many inconveniences may arise; there are many doubtful questions of law: when they arise, the Defendant has an option, either to litigate the question, or to submit to the demand, and pay the money. I think, that by submitting to the demand, he that pays the money gives it to the person to whom he pays it, and makes it his, and closes the transaction between them.’

Judges:

Gibbs J, Heath J, Chief Justice, Sir James Mansfield, Chambre J dissenting

Citations:

(1813) 5 Taunt 143

Jurisdiction:

England and Wales

Citing:

Applied – Bilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .

Cited by:

Cited – Wilson and M’Lellan v Sinclair 1830
Lord Brougham LC said that since Brisbane v. Dacres it had been considered an established point that a mistake must be ‘in the fact’ to allow recovery of money paid in error. . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 05 December 2022; Ref: scu.236534

Saint Line Limited v Richardsons Westgarth and Co.: 1940

A clause excluding liability for ‘any indirect or consequential damages or claims whatsoever’. A claim was made for for loss of profit.
Held: ‘What does one mean by ‘direct damage’? Direct damage is that which flows naturally from the breach without other intervening causes and independently of special circumstances, while indirect damage does not so flow. The breach certainly has brought it about, but only because of some supervening event or some special circumstances unknown to the seller.
In my judgment, the words ‘indirect or consequential’ do not exclude liability for that which is prima facie recoverable; that is, do not exclude liability for damages which are the direct and natural result of breaches complained of.’

Judges:

Atkinson J

Citations:

[1940] 2 KB 99

Jurisdiction:

England and Wales

Cited by:

Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – British Sugar Plc v NEI Power Projects Limited and Anr CA 8-Oct-1997
The plaintiffs contracted for the delivery and installation of equipment by the defendant. After delays and defects the claimants sought damages. The defendants said that the contract provided that any liabiity for consequential losses was to be . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 05 December 2022; Ref: scu.238574

Phillips (Liquidator of A J Bekhor and Co) and Another v Brewin Dolphin Bell Lawrie Limited and Another: CA 17 Mar 1999

When considering whether a breach went to the root of a contract, an associated contract could be split off, even though it would not be split off for insolvency purposes when asking whether a transaction was at an undervalue.

Judges:

Morritt LJ, Lord Woolf MR

Citations:

Times 30-Mar-1999, [1999] BCC 557, [1999] EWCA Civ 1007, [1999] 1 WLR 2052

Links:

Bailii

Statutes:

Insolvency Act 1986 238

Jurisdiction:

England and Wales

Cited by:

Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 December 2022; Ref: scu.145922

Stimpson v Smith: CA 11 Mar 1999

The court was asked whether a guarantor who had made a payment discharging the guarantee without a formal demand but following negotiations with the creditor, and in circumstances where otherwise the creditor would probably have made a demand, could claim contribution in equity from the co-guarantor.
Held: Where one joint guarantor orally agrees to repay part of the guaranteed overdraft after a formal demand, even though not against the guarantors, he is entitled to an appropriate contribution from his co-guarantor.

Judges:

Peter Gibson LJ, Tuckey LJ

Citations:

Times 22-Mar-1999, Gazette 14-Apr-1999, [1999] EWCA Civ 952, [1999] Ch 340

Jurisdiction:

England and Wales

Cited by:

Cited – TS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 05 December 2022; Ref: scu.89558

Hosking v Legal and General Ventures Limited (2): CA 12 Feb 1999

Citations:

[1999] EWCA Civ 775

Jurisdiction:

England and Wales

Cited by:

Cited – Becerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
Lists of cited by and citing cases may be incomplete.

Contract, Company, Intellectual Property

Updated: 05 December 2022; Ref: scu.145690

G and GB Hewitt Ltd v SA Namur-Assurances Du Credit: CA 8 Mar 1999

An exclusion clause in a contract insuring against bad debts, avoiding liability where import or export orders were banned, did not apply to supplies to a company who later intended to export the goods but became insolvent following ban on exports.

Citations:

Gazette 10-Mar-1999, Times 08-Mar-1999

Jurisdiction:

England and Wales

Insurance, Contract

Updated: 05 December 2022; Ref: scu.80718

Mv Promotions Ltd and Another v Telegraph Media Group Ltd and Another: ChD 29 May 2020

Contract – Interpretation – Mistake as to parties – Correction by construction
Contract – Rectification – Common Mistake – Discretion – Existing Deed of Rectification – Tax advantages

Judges:

Hodge QC HHJ

Citations:

[2020] EWHC 1357 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 04 December 2022; Ref: scu.651124

Purak Ltd v Byzak Ltd: 2005

Lord Drummond Young said that the right or retention only arises where one party is in material breach of contract.

Judges:

Lord Drummond Young

Citations:

2005 SLT 37

Jurisdiction:

Scotland

Cited by:

Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 December 2022; Ref: scu.410707

Joseph and Others v Spiller and Another: CA 22 Oct 2009

The claimants, members of a rock band, alleged defamation by the defendants on their web-site. The defendants provided booking services. They said that the claimants were unreliable in failing to meet their contractual obligations. Their terms incorporated an additional set of terms which required the claimants to go through the agency to rebook any venue. The claimants said that the terms were unlawful under the 2003 Regulations.
Held: The defendants’ appeal against the striking out of their defence of justification succeeded. The judge had been wrong to find that the allegations that the claimants took a generally cavalier attitude to contractual obligations and were not to be trusted in business dealings were factual in character rather than an expression of opinions. However, any breach of the regulations might not make the contract unenforceable. Courts should be slow to hold legislation to interfere with the normal remedies for breach of a contract.
The defendants’ appeal on fair comment failed, and the defence was not re-instated. ‘I see no merit in the argument that the comment cannot constitute a matter of public interest. Those in the business of entertaining the public, a business in which many people are engaged, will be concerned, when serving the public, to know which artists can be relied on to perform their contracts and which cannot. The comment is arguably in the public interest.’

Judges:

Pill LJ, Hooper LJ, Wilson LJ

Citations:

[2009] EWCA Civ 1075, Times 30-Oct-2009, [2010] ICR 642, [2010] EMLR 7

Links:

Bailii

Statutes:

Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003 No 3319)

Jurisdiction:

England and Wales

Citing:

Cited – St John Shipping Corporation v Joseph Rank Limited 1956
The defendants held a bill of lading for part of the cargo carried on the plaintiffs’ vessel from Mobile, Alabama, to Birkenhead. The vessel was over laden and the plaintiffs were guilty of an offence under the 1932 Act. The defendants relied on the . .
Appeal from – Joseph and Others v Spiller and Another QBD 22-May-2009
. .

Cited by:

Cited – Thornton v Telegraph Media Group Ltd QBD 12-Nov-2009
The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . .
Appeal from – Spiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
Lists of cited by and citing cases may be incomplete.

Defamation, Contract

Updated: 04 December 2022; Ref: scu.376231

Cope v Rowlands: 1836

The court considered te situation of entry into a contract by a person under a statutory prohibition. Parke B said: ‘It is perfectly settled that where the contract which the plaintiff seeks to enforce, be it express or implied, is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect.’

Judges:

Parke B

Citations:

(1836) 2 M and W 149

Jurisdiction:

England and Wales

Cited by:

Cited – Hughes v Asset Managers Plc CA 13-May-1994
The appellants had entered into discretionary investment management agreements wth the respondent. The investments made a substantial losss which the appellants sought to recover, saying that the agreements were void under the 1958 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 December 2022; Ref: scu.267378

Thomson v James: 1855

Lord President McNeill discussed the postal rule in the law of contract: ‘By putting the letter of acceptance into the post office, the offeree did just what he had been invited to do, and all that it was incumbent on him or possible for him to do by way of acceptance, by the mode of communication which he was authorised, if not invited by the offeror to adopt.’

Judges:

Lord President McNeill, Lord Deas

Citations:

(1855) 18 D 1

Jurisdiction:

Scotland

Cited by:

Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 December 2022; Ref: scu.276446

Ritchie v Atkinson: 1808

Judges:

Lord Ellenborough

Citations:

(1808) 10 East 295

Jurisdiction:

England and Wales

Citing:

Applied – Boone v Eyre 1777
Unless the non-performance alleged to constitute the breach of the contract goes to the whole root and consideration of it the covenant broken is not to be considered as a condition precedent but as a distinct covenant for breach of which the party . .

Cited by:

Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 December 2022; Ref: scu.266188

Davidson v Gwynne: 1810

The court considered a claim for a breach of a charterparty.
Held: The sailing with the first convoy was not a condition precedent, the object of the contract was the performance of the voyage and that had been performed. It was useless to go over the same subject again ‘which has so often been discussed of late.’ Lord Ellenborough said: ‘The principle laid down in Boone v. Eyre has been recognised in all the subsequent cases that unless the non-performance alleged in the breach of contract goes to the whole root and consideration of it the covenant broken is not to be considered as a condition precedent but as a distinct covenant for breach of which the party may be compensated in damages unless by the breach of the stipulation of the fitness of the vessel the object of the voyage is wholly frustrated.’

Judges:

Lord Ellenborough

Citations:

[1810] 12 East 381

Jurisdiction:

England and Wales

Citing:

Cited – Boone v Eyre 1777
Unless the non-performance alleged to constitute the breach of the contract goes to the whole root and consideration of it the covenant broken is not to be considered as a condition precedent but as a distinct covenant for breach of which the party . .

Cited by:

Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 December 2022; Ref: scu.266191

Havelock v Geddes: 1809

If the obligation of seaworthiness in a charterparty contract were a condition precedent then the neglect of putting in a single nail after the ship ought to have been made tight, staunch, etc., would be a breach of the condition and a defence to the whole of the plaintiff’s demand.

Judges:

Lord Ellenborough

Citations:

(1809) 10 East 555

Jurisdiction:

England and Wales

Cited by:

Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 04 December 2022; Ref: scu.266190

Tarrabochia v Hickie: 1856

The parties had agreed that the ship would sail on a particular day, but there was no express term to state the importance of any breach.
Held: Bramwell B said: ‘No doubt it is competent for the parties, if they think fit, to declare in express terms that any matter shall be a condition precedent, but when they have not so expressed themselves, it is necessary for those who construe the instrument to see whether they intend to do it. Since, however, they could have done it, those who construe the instrument should be chary in doing for them that which they might, but have not done for themselves.’

Judges:

Pollock CB, Bramwell B

Citations:

(1856) 1 Hurlstone and Norman 183

Jurisdiction:

England and Wales

Cited by:

Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 December 2022; Ref: scu.266192

Blake and Co. v Sohn: 1969

The defendant had falsely represented to their estate agents that they had been in undisputed exclusive possession of part of the land to be sold for 20 years and were able to prove title for the land. In fact, there was a long running dispute about title to the land. Contracts were exchanged but the sale could not be completed because of the vendors’ inability to complete the purchase. The purchaser successfully sued for rescission of the contract, whereupon the estate agents sued for their commission or damages. The estate agents contended, inter alia, that there was an implied term in the agreement between themselves and the vendors to the effect that the vendors had and would make out a good title to the property.
Held: Nield J rejected the contention. There was no justification for implying such a term. The representation as to undisputed possession did not amount to fraud.

Judges:

Nield J

Citations:

[1969] 3 All ER 123

Jurisdiction:

England and Wales

Cited by:

Cited – John D Wood and Co (Residential and Agricultural Ltd) v Craze QBD 30-Nov-2007
The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 04 December 2022; Ref: scu.263807

Heald v O’Connor: 1971

A surety for a company’s obligations under a debenture promised: ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be as a primary obligor and not merely as a surety’.
Held: Fisher J said: ‘The obligation is to pay the principal moneys to become due under the debenture if and whenever the company makes default. The statement of claim refers to it as a guarantee and pleads the company’s default and the consequent liability of the guarantor. The only straw for the plaintiff to clutch is the phrase ‘as a primary obligor and not merely as a surety’ but that, in my judgment, is merely part of the common form of provision to avoid the consequences of giving time or indulgence to the principal debtor and cannot convert what is in reality a guarantee into an indemnity.’

Judges:

Fisher J

Citations:

[1971] 1 WLR 497

Jurisdiction:

England and Wales

Cited by:

Cited – General Produce Co v United Bank Ltd 1979
Lloyd J considered a term in a guarantee agreement as follows ‘if and whenever the company makes default in payment of any such principal money [to] pay the amount thereof on demand provided that the liability hereunder of the guarantor shall be as . .
Cited – Van Der Merwe and Another v IIG Capital Llc ChD 13-Nov-2007
The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 04 December 2022; Ref: scu.261295

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 specific enforcement of contract.
Contract – Character – Work, labour and materials or sale of goods.
Bankruptcy – Preference – Contract for prefabrication of house – Risk with builder until practical completion – Property not to pass until full payment of price – Progress payments – Builder placed in liquidation before completion – Prior agreement for purchaser to pay for work done after last progress payment and take unfinished house – Whether preference – Companies Act 1961 (W.A.), section 293 – Bankruptcy Act 1966 (Cth), s. 122.

Citations:

(1983) 149 CLR 639, [1983] HCA 7

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Insolvency

Updated: 04 December 2022; Ref: scu.259719

Thoroughgood’s case; Thoroughgood v Cole; Throwgood v Turnor, Moore: 1584

Where a signatory is blind, and the document is read to him falsely either by the grantee or by a stranger, then the deed is not binding on him. An illiterate signatory need not execute the deed without it being read over to him, but where he executes it without asking it to be read for him, then the deed is binding on him. The decision was based on the reading of the deed ‘in other words than in truth it is.’

Citations:

(1584) 2 Co Rep 9 (b), (1584) 76 ER 408, (1584) KB 148

Jurisdiction:

England and Wales

Cited by:

Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 December 2022; Ref: scu.253150

Whelpdale’s Case: 1604

Where a bond is delivered to somebody else to the use of the obligee, on being tendered is refused, the delivery of the deed was no longer effective, the obligee could not later agree to it, and the obligor could plead non est factum.

Citations:

(1604) 5 Co Rep 119, 77 ER 239

Jurisdiction:

England and Wales

Cited by:

Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 December 2022; Ref: scu.253153

Coulls v Bagot’s Executor and Trustee Co Ltd: 21 Mar 1967

(High Court of Australia) The court considered an action for damages by a party to a contract to enforce an obligation intended to benefit another.
Held: Windeyer J: ‘ I can see no reason why in such cases the damages which A would suffer upon B’s breach of his contract to pay C $500 would be merely nominal: I think that in accordance with the ordinary rules for the assessment of damages for breach of contract they could be substantial. They would not necessarily be $500; they could I think be less or more.’

Judges:

Barwick C.J.(1), McTiernan(2), Taylor(3), Windeyer(4) and Owen(3) JJ

Citations:

(1967) 119 CLR 460

Links:

Austlii

Jurisdiction:

Australia

Citing:

Explained – Lloyd’s v Harper 1888
Lush LJ said: ‘ The next question which, no doubt, is a very important and substantial one, is, that Lloyds, having sustained no damage themselves could not recover for the losses sustained by third parties by reason of the default of Robert Henry . .

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 01 December 2022; Ref: scu.251052

Promar International Ltd v Clarke: CA 4 Apr 2006

Breach of post employment restrictive covenant.

Judges:

Mr Justice Bennett Lady Justice Hallett

Citations:

[2006] EWCA Civ 332

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – BCT Software Solutions Ltd v C Brewer and Sons Ltd CA 11-Jul-2003
A copyright infringement case had been settled, but the court was to quantify and apportion costs. Some andpound;700,000 having been spent when the damages amounted to andpound;10,000.
Held: Denne did not oust the court’s jurisdiction to hear . .
Lists of cited by and citing cases may be incomplete.

Contract, Costs

Updated: 01 December 2022; Ref: scu.240108