Category: Contract

Triple Point Technology, Inc v PTT Public Company Ltd: CA 5 Mar 2019

Appeal by the supplier of a software system against a judgment of the Technology and Construction Court, dismissing its claim for payment and ordering it to pay substantial damages on the counterclaim. The main issue of principle which arises is how to apply a clause imposing liquidated damages for delay in circumstances where the contractor or supplier never achieves completion.

Judges:

Sir Rupert Jackson, Lewison, Floyd LJJ

Citations:

[2019] EWCA Civ 230

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Triple Point Technology, Inc v PTT Public Company Ltd TCC 23-Aug-2017
. .
Appeal from – Triple Point Technology, Inc v PTT Public Company Ltd TCC 7-Jun-2018
Application by Triple Point for an injunction restraining execution of a judgment that PTT attempted to enforce in the State of Connecticut in the United States in May 2018. A stay of execution had, prior to that date, already been ordered by the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 11 May 2022; Ref: scu.634143

Champtaloup v Thomas: 1977

New South Wales – an election to terminate must generally occur within a reasonable time of the discovery of the circumstances giving rise to the right. If the lessee of a flat, on learning of the lessor’s breach, communicated to the lessor that he or she desired to consider his or her position, and in the meantime continued to occupy the flat and ride up and down in the lift, the lessee may not be found to have affirmed the contract (at least until a reasonable time had passed) even though the right to occupy and ride arose only by virtue of the lease.
Glass JA said: ‘To impose the further requirement that the donee [of a legal right] must be actuated by a legitimate purpose, thus forcing a judicial trek through the quagmire of mixed motives would be, in my opinion, a dangerous and needless innovation.’

Judges:

Mahoney JA, Street CJ

Citations:

[1977] 2 NSWLR 264

Jurisdiction:

Australia

Cited by:

Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 11 May 2022; Ref: scu.602120

Staffordshire Area Health Authority v South Staffordshire Waterworks Company: CA 1978

There was no provision in the agreement, made in 1929, to supply water at all times hereafter, between the parties for a variation of the charges payable under the agreement, which had between 1929 and 1978 become derisory, being 1/20 of the current proper price.
Held: The agreement was terminable by reasonable notice. The words of the agreement were capable of meaning at all times hereafter during subsistence of this agreement and that they did not conclusively and inevitably declare perpetuity. They therefore did not have the effect that the agreement was intended to persist in perpetuity, as the trial judge had held that it did.

Judges:

Lord Denning MR, Goff LJ

Citations:

[1978] 1 WLR 138, [1978] 3 All ER 769

Cited by:

Cited – Islwyn Borough Council and Another v Newport Borough Council CA 28-Jun-1993
Three local authorities disputed whether a contract had been made between them, and if so its terms, as to the financial support of a leisure centre.
Held: Later legislation need not frustrate agreement between the parties.
Hirts LJ said: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.554410

Ramsgate Hotel Co v Montefiore: 1866

An offer to take shares had been withdrawn before any notice of acceptance of the offer was given to the applicants. Immediately on notification of the call the applicant’s solicitor wrote declining the shares and requesting the removal from the register.
Held: An offer to make a contract must be accepted within a reasonable time.

Citations:

(1866) 35 LJEx 90, (1866) LR 1 Exch 109

Contract

Updated: 11 May 2022; Ref: scu.554686

Tanwar Enterprises Pty Ltd v Cauchi: 7 Oct 2003

High Court of Australia – Vendor and purchaser – Contracts for sale of land – Default by purchaser – Notice of termination – Supplemental deed requiring completion by stipulated date – Time of essence – Default by purchaser – Notice of termination – Purchase price available following day – Specific performance – Whether unconscientious for vendors to exercise right of termination – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.
Equity – Relief against forfeiture – Contracts for sale of land – Default by purchaser – Whether unconscientious for vendors to exercise right of termination – Whether default occasioned by ‘accident’ – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.

Judges:

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ

Citations:

(2003) 217 CLR 315, [2003] HCA 57

Links:

Austlii

Cited by:

Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Contract

Updated: 11 May 2022; Ref: scu.553537

In re Mahmoud and Ispahani: CA 1921

Scrutton LJ said: ‘In my view the court is bound, once it knows that the contract is illegal, to take the objection and to refuse to enforce the contract, whether its knowledge comes from the statement of the party who was guilty of the illegality, or whether its knowledge comes from outside sources. The court does not sit to enforce illegal contracts. There is no question of estoppel; it is for the protection of the public that the court refuses to enforce such a contract’.

Judges:

Scrutton LJ

Citations:

[1921] 2 KB 716

Contract

Updated: 11 May 2022; Ref: scu.553660

Hodgkinson v Simms: 30 Sep 1994

Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by adviser — Ultimate decision as to whether or not to invest that of client — Substantial losses incurred during period of economic downturn — Whether or not fiduciary duty on part of adviser — If so, calculation of damages.
Contracts — Contract for independent services — Breach by failure to disclose — Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party’s duty to act in the other’s best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.

Judges:

La Forest, L’Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ

Citations:

[1994] 3 SCR 377, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135

Links:

Canlii

Cited by:

Cited – Cadbury Schweppes v FBI Foods 28-Jan-1999
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Approved – Pilmer v Duke Group Ltd 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Damages, Trusts

Updated: 11 May 2022; Ref: scu.554204

James Shaffer Ltd v Findlay Durham and Brodie: CA 1953

The defendants were desirous of doing, and were in fact doing, their utmost to perform their contract, but remained in breach.
Held: A mere misconstruction of the obligations in a contract does not amount to repudiation. A party who takes action relying simply on the terms of the contract, and not manifesting by his conduct an ulterior intention to abandon it, is not to be treated as repudiating it. Singleton LJ referred to a judgment of Lord Justice Atkin in an earlier case, and said: ‘After he had cited definitions of repudiation he added, ‘They all come to the same thing, and they all amount at any rate to this, that it must be shown that the party to the contract made quite plain his own intention not to perform the contact.”

Judges:

Singleton LJ

Citations:

[1953] 1 WLR 106

Cited by:

Cited – Woodar Investment Development Ltd v Wimpey Construction UK Ltd HL 14-Feb-1980
Wimpey agreed to buy land from Woodar for a sum of andpound;850,000 of which andpound;150,000 was to be paid to Transworld. A month later Wimpey sent a letter purporting to rescind the contract and Woodar sued for damages including the . .
Cited – Lidl UK Gmbh v Hertford Foods Ltd and Another CA 20-Jun-2001
The respondent had contracted to supply tinned corned beef to the appellant, but had become unable to fulfil the orders because of industrial action in Brazil. The appellant had purchased supplies elsewhere and set off the cost of that against the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.538238

Robshaw Brothers Limited v Mayer: 1956

Upjohn J considered what would amount to a sale. He quoted the following passage from an article which he said correctly stated the law: ‘But it is well established by judicial authority that in English law the primary meaning of the word ‘sale’ is ‘the conveyance of some article for money’. He refers to J and P. Coats v Inland Revenue Commissioners, and then says ‘that a power to sell means, in the absence of any context, a power to sell for money and that a person who exercises such a power is bound to sell for money’: see per Stirling J in Payne v The Cork Co. Ltd.’ He added: ‘There are, no doubt, to be found authorities and statutes which have extended that meaning. In Williams on The Contract of Sale of Land, it is stated on p.3: ”Sale’, in the strict and primary sense of the word, means an agreement for the conveyance of property for a price in money; but the word ‘sale’ may be used in law in a wider sense and so applied to the conveyance of land for a price consisting wholly or partly of money’s worth other than the conveyance of some other land.’ Apparently, he considered that a sale for something other than money can in a wider sense be properly described as a sale.’

Judges:

Upjohn J

Citations:

[1956] 1 Ch 125

Cited by:

Cited – VFS Financial Services Ltd v JF Plant Tyres Ltd QBD 26-Feb-2013
The defendant had acquired a vehicle in lieu of payment of a debt. The vehicle was subject to an HP agreement with the claimant, who now sought possession of it. The defendant argued that it had the protection of section 27, there having been a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.519971

In Re Westminster Property Group plc: 1984

The court considered the meaning of the word ‘sale’ in the phrase ‘sale or purchase’ in Order 14A RSC. Nourse J said: ‘The authorities establish that in legislative usage and in the absence of a special context the word ‘sale’ denotes an exchange of property for cash and not for other property.’

Judges:

Nourse J

Citations:

[1984] 1 WLR 1117

Jurisdiction:

England and Wales

Cited by:

Appeal from – In Re Westminster Property Group PLC CA 1985
The Court was asked whether what was said to be a sale was in truth a sale. The court looked at the ordinary meaning of the word sale and then asked whether the context requires an extension of that meaning: ‘[Counsel] accepted that in ordinary . .
Cited – VFS Financial Services Ltd v JF Plant Tyres Ltd QBD 26-Feb-2013
The defendant had acquired a vehicle in lieu of payment of a debt. The vehicle was subject to an HP agreement with the claimant, who now sought possession of it. The defendant argued that it had the protection of section 27, there having been a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.519968

Thompson v Park: 1944

Goddard LJ rejected a submission regarding recovery of pssession after a forced entry, saying: ‘Having got back into the house, . . with strong hand and with multitude of people, he has established himself in the house, and he then says : ‘I ought not to have an injunction given against me to make me go out because I got back here . . and therefore, I want the status quo preserved.’ The status quo that could be preserved was the status quo that existed before these illegal and criminal acts on the part of the defendants. It is a strange argument to address to a court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and to say that that would be preserving the status quo and a good reason for not granting an injunction.’

Judges:

Goddard LJ

Citations:

[1944] KB 408

Cited by:

Disapproved – Verrall v Great Yarmouth Borough Council CA 1980
In an appropriate case, a court will protect a contractual licence to occupy land by injunction or specific performance, where damages would not be an adequate remedy. A decree could issue where there was a wrongful repudiation of the licence, even . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 11 May 2022; Ref: scu.472104

Yam Seng Pte Ltd v International Trade Corporation Ltd: QBD 1 Feb 2013

The parties had contracted for the international distribution of scent using a ‘Manchester United’ brand.

Judges:

Leggatt J

Citations:

[2013] EWHC 111 (QB), [2013] 1 All ER (Comm) 1321, 146 Con LR 39, [2013] BLR 147, [2013] 1 Lloyd’s Rep 526, [2013] 1 CLC 662

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Naughton v O’Callaghan 1990
Damages Award to Restore Plaintiff’s Poistion
In 1981 the plaintiffs had bought a thoroughbred yearling colt called ‘Fondu’ for 26,000 guineas. In fact a mistake had been made and its pedigree was not as represented. Its true pedigree made it suitable only for dirt track racing in the United . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.470711

Reese River Silver Mining Co Ltd v Smith: HL 1869

Rescission for misrepresentation is always the act of the party (representee) himself.
The fact that a person’s name continues to remain on a company’s register as member does not mean that it should have done so under the provisions of the Articles.
An election or decision to rescind, in order to be effective, must be exercised unequivocally, ‘in the plainest and most open manner competent’.

Judges:

Lord Hatherley LC

Citations:

(1869) LR 4 HL 64

Jurisdiction:

England and Wales

Cited by:

Cited – Car and Universal Finance Company Ltd v Caldwell CA 19-Dec-1963
The defendant had sold a car, taking as payment a cheque which was dishonoured; the plaintiffs later bought the car in good faith.
Held: The defendant was entitled to return of the car, even though the original purchaser had disappeared, and . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 11 May 2022; Ref: scu.466387

In Re Spenborough Urban District Council’s agreement; Spenborough Corporation v Cooke Sons and Company Ltd: ChD 1968

A contract regulating the flow of industrial effluents into a public sewer contained no power of termination notwithstanding that the agreement it replaced did.
Held: There is no presumption in law that a joint venture is not terminable.
Buckley J said: ‘Since ex hypothesi such an agreement contains no provision expressly dealing with determination by the party who asserts that this should be inferred, the question is not one of construction in the narrow sense of putting a meaning on language which the parties have used, but in the wider sense of ascertaining, in the light of all the admissible evidence and in the light of what the parties have said or omitted to say in the agreement, what the common intention of the parties was in the relevant respect when they entered into the agreement. It is of the nature of this problem that he who asserts that the parties intended something which they omitted to state expressly must demonstrate that this was so. Counsel for the Corporation accepts this. The court does not, however, in my judgment, lean one way or the other. Lord Selbourne in Llanelly Railway and Dock Company and London and North Western Railway Company and James LJ in the same case in the Court of Appeal said, I think, nothing inconsistent with this (see per Lord McDermott in Winter Garden Theatre (London) Ltd v. Millennium Productions Ltd). An agreement which is silent about determination will not be determinable unless the facts of the case, such as the subject-matter of the agreement, the nature of the contract or the circumstances in which the agreement was made, support a finding that the parties intended that it should be determinable, but there is, in my judgment, no presumption one way or the other.’

Judges:

Buckley J

Citations:

[1968] Ch 139

Citing:

Cited – Llanelly Railway and Dock Company v London and North Western Railway Company 1873
The parties had entered into a contract, in part to secure repayment of a loan, providing permission for the defendant to run its trains over the plaintiff’s tracks. The contract made no provision for termination.
Held: All the provisions of . .
Cited – Winter Garden Theatre (London) Ltd v Millennium Productions Ltd HL 1947
The appellant owner had granted licences to the respondent to use the theatre for productions. After the initial six month’s period, the respondent was to have an option for further licences. The contract made no mention of a termination of that . .

Cited by:

Cited – Mulcaire v News Group Newspapers Ltd ChD 21-Dec-2011
The claimant, a private investigator had contracted with the News of the World owned by the defendant but since closed. He had committed criminal offences in providing information for the paper, had been convicted and had served his sentence. He . .
Cited – Islwyn Borough Council and Another v Newport Borough Council CA 28-Jun-1993
Three local authorities disputed whether a contract had been made between them, and if so its terms, as to the financial support of a leisure centre.
Held: Later legislation need not frustrate agreement between the parties.
Hirts LJ said: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.450969

Louis Dreyfus and Co v Parnaso cia Naviera SA (“The Dominator”): 1959

The court considered whether it could look to a deleted clause to assist in its interpretation of the contract.
Held: The use of a word or phrase in the deleted part of a standard form clause may throw light on the meaning of the same word or phrase in what remains of the clause.

Judges:

Diplock J

Citations:

[1959] 1 QB 499, [1959] 1 Lloyds Rep 125

Cited by:

Cited – Total Transport Corporation v Arcadia Petroleum Ltd (‘the Eurus’) CA 18-Nov-1997
Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.462285

In re Detmold, Detmold v Detmold: 1889

A provision stated that the property in a marriage settlement (originating from the husband) should pass to the wife for life in the event of an alienation by, or the bankruptcy of, the husband.
Held: It was valid against the husband’s trustee in bankruptcy, on the ground that it had been triggered, prior to the commencement of the bankruptcy, by the alienation effected as the result of the appointment of a receiver of the property in the settlement.

Citations:

(1889) 40 Ch D 585

Cited by:

Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 11 May 2022; Ref: scu.442615

Ealing London Borough Council v El Isaac: CA 1980

Templeman LJ said: ‘I do not for myself understand how a debt payable with interest until actual repayment can be merged in a judgment without interest or with a different rate of interest payable thereafter.’

Judges:

Templeman LJ

Citations:

[1980] 1 WLR 932

Cited by:

Cited – Director General of Fair Trading v First National Bank Plc CA 15-Sep-1999
A bank had a clause in its standard terms which provided that it could continue to recover interest at the contract rate after judgment for default. The clause was an unfair term. The clause allowed a bank to impose an arrangement for repayment by . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 11 May 2022; Ref: scu.445465

In Re Bond Worth Ltd: 1980

The parties disputed the property in goods which had been sold and then gone through successive manufacturing processes. The contract included a retention of title clause. Fibres were converted into manufactured carpets and thus lost their identity and thus, from the seller’s perspective, the seller lost any relevant right of property. The issues included whether there was a creation of a trust of some kind or a charge and the relevant clause producing the result that the contractual intent appeared to be that there should be a beneficial entitlement attaching in the seller’s favour in respect to the proceeds of sale of manufactured items, that is to say, the carpets which had emerged as a result of the application of the processes to the yarn. Slade J saw the case as posing a choice between either a trust of which the supplier ‘was the sole beneficiary’ or ‘by way of a trust under which Monsanto’, which was the supplier, ‘had a charge in equity’. Slade J discussed the nature of a retention of title clause: ‘[A]ny contract which, by way of security for the payment of a debt, confers an interest in property defeasible or destructible upon payment of such debt, or appropriate such property for the discharge of the debt, must necessarily be regarded as creating a mortgage or charge, as the case may be’. And ‘The technical difference between a `mortgage’ or `charge’, though in practice the phrases are often used interchangeably, is that a mortgage involves a conveyance of property subject to a right of redemption, whereas a charge conveys nothing and merely gives the chargee certain rights over the property as security for the loan.’

Judges:

Slade J

Citations:

[1980] Ch 228

Cited by:

Cited – Sandhu (T/A Isher Fashions UK) v Jet Star Retail Ltd and Others CA 19-Apr-2011
The claimant had supplied clothing to the defendant under a contract containing a retention of title clause. The defendant fell into financial difficulties and administration. The claimant now sought damages for conversion of its goods by the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.434835

Lord Elphinstone v Monkland Iron and Coal Co: HL 1886

Lord Herschell LC examined the validity of a covenant by which lessees who had been given a right to place slag on the land leased to them covenanted to pay the lessor andpound;100 per acre for all land not levelled and soiled within a particular period. He said: ‘The agreement does not provide for the payment of a lump sum upon the non-performance of any one of many obligations differing in importance. It has reference to a single obligation, and the sum to be paid bears a strict proportion to the extent to which that obligation is left unfulfilled. There is nothing whatever to shew that the compensation is [inordinate] or extravagant in relation to the damage sustained.’ There is a presumption (but no more) that a provision is a penalty when ‘a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.’

Judges:

Lord Watson, Lord Herschell LC

Citations:

(1886) 11 AC 332

Jurisdiction:

England and Wales

Cited by:

Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 11 May 2022; Ref: scu.440841

Leeman v Stocks: 1951

The plaintiff’s was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The auctioneer put in the vendor’s initials and surname (‘W.E.Stocks’). After the bidding, the auctioneer inserted his details, a description of the premises and the auction price and, when he had obtained it, the purchaser’s solicitors name. The document ended with the words ‘As witness the hand of the parties hereto the day and year before written. Purchaser’s solicitor, R.A.C. Symes and Co, Southampton’. The purchaser signed the document over a stamp. The auctioneer told the vendor of the sale but did not show him the document. Neither he nor the vendor signed the document in the ordinary sense of the word. The vendor refused to complete alleging that there was no note or memorandum.
Held: The auctioneer was agent for both parties; and had authority to put before the purchaser, as he did, a document containing the name of the vendor as the party with whom the contract had been made, and the terms of the contract which had been made, for him to agree in writing. The placing of the name ‘W.E. Stocks’ as the name of the vendor with whom the contract was made by the auctioneer was sufficient to count as a signature of a memorandum by an authorised agent.
Although the vendor’s name was not inserted in the first instance with reference to a contract with the purchaser, nevertheless when it was put before the purchaser for signature, the vendor’s name was in the document in relation to a contract which had become binding, albeit not actionable without a memorandum satisfying the statute.
The court was troubled that the document by its own terms contemplated that it should be signed by both parties, from which it could be said that until then it had not been signed at all. As to that he held that when the auctioneer obtained the purchaser’s signature neither he, on behalf of the vendor, nor the purchaser intended any other signature ever to be added; but that both intended the document with the purchaser’s signature to be the final written record of the contract. The court could examine the evidence to see if the document relied on came into being as a ‘perfect instrument’ i.e. as the intended final embodiment of the agreement and, if it found that it did, the court was not prevented from holding it to be a sufficient memorandum. The ‘authenticated signature fiction’ will only have application where it is intended by each party to the contract that the memorandum or note relied upon ‘should be the final written record of the contract’.

Judges:

Roxburgh J

Citations:

[1951] 1 Ch 941

Citing:

Applied – Evans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .

Cited by:

Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 May 2022; Ref: scu.430071

Brewster v Kitchell: 1795

‘Where H covenants not do to an act or thing which was lawful to do, and an Act of Parliament comes after and compels him to do it, the statute repeals the covenant. So if H covenants to do a thing which is lawful, and an Act of Parliament comes in and hinders him from doing it, the covenant is repealed.’

Citations:

[1795] EngR 616, (1795) 1 Salk 198, (1795) 91 ER 177 (B)

Links:

Commonlii

Cited by:

Cited – Baily v De Crespigny QBD 1869
A lessor had covenanted that neither he nor his assigns would build on a piece of land adjoining the demised premises. A railway company, under powers derived from a subsequent private Act, compulsorily acquired the land and erected a station on it. . .
Cited – Islwyn Borough Council and Another v Newport Borough Council CA 28-Jun-1993
Three local authorities disputed whether a contract had been made between them, and if so its terms, as to the financial support of a leisure centre.
Held: Later legislation need not frustrate agreement between the parties.
Hirts LJ said: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.352961

The Iran Vojdan: 1984

Electric cable was carried on an Iranian flagged vessel from Hamburg to Dubai. The plaintiff consignees, alleging that the cargo was damaged, commenced proceedings against the shipowners in the English courts. The defendants sought a stay on saying that the bill of lading had an exclusive jurisdiction clause under which all disputes were to be tried in Hamburg. There was an issue as to the proper law of the bill of lading contract, the defendants contending for German law and the plaintiffs for Iranian law. The bill of lading contained a provision that the contract was, in the option of the carrier to be declared by him on the merchant’s request, to be governed either by Iranian law with the Tehran courts having exclusive jurisdiction or by German law with the exclusive jurisdiction of the Hamburg courts or by English law with the exclusive jurisdiction of the courts of London.
Held: The proper law must be capable of determination when the contract was entered into. The bill was impliedly under German law since that had the closest and most real connection. Applying German law the jurisdiction clause was invalid because it was printed in such small print as to be insufficiently legible. There was therefore no valid exclusive jurisdiction agreement. Obiter he considered the position under Iranian law. There being no evidence of that law, it was assumed to be identical to English law. It was common ground that, having regard to the decision of the Court of Appeal in Armar Shipping Co v. Caisse Algerienne, supra, the jurisdiction clause was unenforceable at least in so far as it introduced a floating proper law. The question then was whether that invalidity also rendered the optional choice of forum invalid.
Bingham J thought it did: ‘If the clause had confined itself to conferring three options for the choice of jurisdiction on the carrier alone that would seem to me a clause to which effect could properly and without difficulty be given. Moreover, it would seem to me that the plaintiff could well protect himself against abortive proceedings, if that were the effect of the clause, by requesting an exercise of the option before issuing proceedings in one jurisdiction or another. I very much doubt if there is any obligation on the merchant to request the exercise of the option. I do not, however, construing this clause as a whole, think that the choice of jurisdiction can be excised from each of these sub-clauses and given independent effect if the choice of law falls. They are intimately connected with the choice of law options and are not expressed in the clause as separate options. I think, as a matter of construction, that it is artificial and unreal to give effect to the ancillary provision while rejecting the main provision to which it is, as I think, parasitic. Accordingly, I reach the conclusion that this must be treated as a case in which there is no exclusive jurisdiction, applying the principles of English law on the assumption that that is the same as Iranian law.’

Judges:

Bingham J

Citations:

[1984] 2 Lloyds Rep 380

Jurisdiction:

England and Wales

Cited by:

Cited – Lexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 11 May 2022; Ref: scu.372863

Cook v Jones, Reeve, and Benwell: 11 Feb 1812

Where an annuity was granted by three, one of whom was known to be only a surety for the other two, to whose use the consideration-money was in fact applied ; yet all three being present when the money was paid down upon the table, and counted over by them all, and the receipt of it sigped by all, it was properly stated in the memorial as a payment made to the three. And though the deed and memorial stated the consideration-money to have been paid by the grantee by the hands of W. his agent, yet as it also appeared by the same instruments that a part of it was the money of a third person ; that was held to be no objection : for either W. was the agent in fact of the sole grantee, or impliedly the agent, through the medium of the grantee, for such third person also, whose interest was stated in the deed and memorial according to the truth. And one stamp as for one annuity is sufficient.

Citations:

[1812] EngR 114, (1812) 15 East 237, (1812) 104 ER 834

Links:

Commonlii

Contract

Updated: 11 May 2022; Ref: scu.338600

Triefus and Co Ltd v Post Office: CA 1957

The plaintiff sought damages after the defendant lost two mail packets.
Held: Acceptance of a postal packet by the Post Office for transmission to the addressee gives rise to no contractual rights. The court analysed the history of legislation for the delivery of mail. The defendant’s liability was limited to andpound;2 18s per packet.

Judges:

Hodson LJ

Citations:

[1957] 2 QB 352, [1957] 2 All ER 387

Jurisdiction:

England and Wales

Cited by:

Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 May 2022; Ref: scu.314287

Shackell v Rosier: 22 Apr 1836

In consideration that Plaintiff had published a libel at Defendant’s request, and had at the like request consented to defend an action brought against Plaintiff for such publication, Defendant promised to indemnify Plaintiff from the costs of the action : Held, that the promise was void.

Judges:

Tindall CJ

Citations:

[1836] EngR 613, (1836) 2 Bing NC 635, (1836) 132 ER 245

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 11 May 2022; Ref: scu.314945

Pettman v Keble: 4 Jun 1850

The plaintiff, at the request of the defendant, ordered goods of W and R, telling them the purpose for which they were wanted. Before the order was given the plaintiff asked W and R for a list of prices, and, having obtained it, shewed it to the defendant, who, seeing that the price was such that the order could not possibly have been understood, asked the plaintiff if he thought W and R knew what was wanted ; whereupon the plaintiff said, ‘Oh yes. If anything is wrong, of course you will see me all right.’ To which the defendant answered, ‘Yes, I will bear you harmless.’ In consequence of some misunderstanding, arising in part probably from a verbal inaccuracy in the letters conveying the order, the goods supplied were useless to the defendant, and were returned to the sellers, who (the intrinsic value of the goods being only about 3l) expended in labour about 42l to make them correspond with the intention of the defendant, but, in so doing, reduced their substance so as to render them useless for his purpose. – The defendant, after considerable delay, persisting in his refusal to take the goods, W and R sued the plaintiff, and he (as the jury found, with the implied authority of the defendant) compromised the action by the payment to them of 22l 10s, and afterwards brought an action for money paid against the defendant, to recover that sum : Held, by Wilde, CJ Maule, J, and Talfourd, J, that the action lay. Held, by Cresswell, J., that the plaintiff should have defended the action brought against him by W. and R., and that there was no implied authority from the defendant to compromise it.

Judges:

Wilde CJ, Maule J

Citations:

[1850] EngR 620, (1850) 9 CB 701, (1850) 137 ER 1067

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 11 May 2022; Ref: scu.297967

Couturier And Others v Hastie And Others: 26 Jun 1852

Action for recovery of cargo lost at sea.

Citations:

[1852] EngR 774, (1853) 8 Exch 40, (1852) 155 ER 1250

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Hastie And Others v Couturier And Others 25-Jun-1853
. .
See Also – Couturier and others v Hastie and Another HL 26-Jun-1856
Action for recovery of value of cargo lost at sea. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 11 May 2022; Ref: scu.295897

Hastie And Others v Couturier And Others: 25 Jun 1853

Citations:

[1853] EngR 764, (1853) 9 Exch 102, (1853) 156 ER 43

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Couturier And Others v Hastie And Others 26-Jun-1852
Action for recovery of cargo lost at sea. . .

Cited by:

See Also – Couturier and others v Hastie and Another HL 26-Jun-1856
Action for recovery of value of cargo lost at sea. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 11 May 2022; Ref: scu.294750

Benwell v Inns: 18 Jul 1857

The servant of a milkman, in C. Street, London, agreed not to carry on the like business within three miles therefrom. Held, that this was not an undue restraint of trade, and the servant was restrained, by injunction, from violating his agreement.
A. agreed to take B. as his servant, ‘at such wages as might from time to time be agreed on,’ and B., on his part, agreed to serve A., and not to set up trade for himself within certain limits. B. accordingly entered into and continued in A.’s service, at wages agreed on. Held, that there was a good and valuable consideration to support the agreement as against B., and the Court enforced it. A milkman, carrying on business in three places, took the Defendant into his service.
The Defendant engaged, as regarded the milkman, his assignees and successors, not to carry on a similar trade within certain limits. A. sold his branch business at one of the three places to the Plaintiff, who retained the Defendant in his service.
Held, that the Plaintiff, as assignee and successor of part of the business, was entitled to the benefit of the Defendant’s contract.

Citations:

[1857] EngR 778, (1857) 24 Beav 307, (1857) 53 ER 376

Links:

Commonlii

Employment, Contract

Updated: 11 May 2022; Ref: scu.290524

Price v Mouat: 1862

The plaintiff, who was known to be acting in the capacity of a ‘lace-buyer’ was engaged by the defendant, a lace-dealer, under the following memorandum: ‘M agrees to engage P. for the term of three years from Monday the 15th of August, 1859, at the yearly salary of 500l payable monthly. P. to give the whole of his services, and to be advised and guided by M if necessary’ In an action by P. against M. for a wrongful dismissal pending the term on the alleged ground of disobedience of lawful orders
Held: that evidence was admissible to show the capacity in which the plaintiff was engaged, viz. as ‘lace-buyer’ ; and that it was properly left to the jury to say whether or not the orders which he was alleged to have disobeyed were such as a person in that position was bound to obey.
The general rule is that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character.

Judges:

Erle CJ, Williams, Byles and Keating JJ

Citations:

[1862] EngR 136, (1862) 11 CB NS 508, (1862) 142 ER 895

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Price v Mouatt 1861
On a contract in writing, within the statute, in general terms for the employment of the plaintiff. Held, that it might be shown by parol, that he was employed in a particular capacity ; and, as a question whether he had wilfully disobeyed a lawful . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 11 May 2022; Ref: scu.286302

Alderdale Estate Company v McGrary: CA 1917

Judges:

Lord Cozens-Hardy MR, Warrington LJ. and Lawrence J

Citations:

[1917] 1 Ch 414

Cited by:

Appeal from – McGrory v Alderdale Estate Co HL 1918
Lord Finlay LC discussed the evidence required in an enquiry as to the vendor’s title to be made on an order for specific performance: ‘if the contract is open, the obligation which the law would import into it to make a good title in every respect . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 11 May 2022; Ref: scu.280274

William Lacey (Hounslow) Ltd v Davis: 1957

The builder tendered for work, apparently not on the basis that the tender might or might not be accepted but so that the owner could use the tender for what was described as ‘some extraneous or collateral purpose’, for negotiating a claim for compensation for war damage.
Held: The builder had done work at the request and for the benefit for the owner. That work was outside the ambit of the contract which they thought might be made. The builder had not charged for that work only because it thought that it would be recompensed when it got the contract. The accepted juridical basis of a work and labour done claim is the existence of an obligation implied by or arising at law to pay reasonable remuneration for work done which is freely accepted: ‘In its early history (quantum meruit) was no doubt, a genuine action in contract, based on a real promise to pay, although that promise had not been expressed in words and the amount of the payment had not been agreed. Subsequent developments have however, considerably widened the scope of this form of action and in many cases the action is now founded on what is known as ‘quasi-contract’, similar in some ways to the action for money had and received. In these quasi-contractual cases the court will look at the true facts and ascertain from them whether or not a promise to pay should be implied irrespective of the actual views or intentions of the parties at the time when the work was done or the services rendered’.

Judges:

Barry J

Citations:

[1957] 1 WLR 932, [1957] 2 All ER 712

Jurisdiction:

England and Wales

Cited by:

Cited – Countrywide Communications Limited v ICL Pathway Ltd 1996
The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it . .
Mentioned – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
Cited – D and K Drost Consult Gmbh and Another v Foremost Leisure (Holdings) Ltd CA 12-Feb-2015
The parties had embarked on works despite having failed to take negotiations to a conclused contract. The claimant sought payment under a quantum meruit for services provided. . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 11 May 2022; Ref: scu.280269

Motis Exports Ltd v Dampskibsselskabet Af 1912 Akleselskab (‘the Motis): CA 20 Jan 2000

Shippers were liable under a bill of lading. The goods had been obtained from them fraudulently by means of forged bills of lading. They claimed under an exemption clause in the contract, but the claim failed since the exclusions from liability for loss or damage whilst in their possession before loading or after discharge, did not excuse them for what was a deliberate if mistaken act. Under a bill of lading contract a shipowner is both entitled and bound to deliver the goods against production of an original bill of lading, provided he has no notice of any other claim or better title to the goods.

Judges:

Stuart-Smith LJ

Citations:

Times 26-Jan-2000, Gazette 20-Jan-2000, [2000] 1 Lloyds Rep 211 (CA, [2000] 1 All ER (Comm) 91

Jurisdiction:

England and Wales

Citing:

Appeal from – Motis Exports Ltd v Dampskibsselskabet Af 1912, Aktieselskab and Another ComC 1-Mar-1999
Where goods were supposed only to be handed over by a shipper on receipt of a valid bill of lading, but were instead handed over for fraudulent bill, the shipper remained liable to the owners.
ComC . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Commercial

Updated: 11 May 2022; Ref: scu.83876

Lonrho Plc and Others v Fayed and Others (No 5): CA 27 Jul 1993

Defamatory statements causing pecuniary loss may give rise to an action in tort only. The boundaries set by the tort of defamation are not to be side-stepped by allowing a claim in contract that would not succeed in defamation. A claimant cannot, by an action in conspiracy, recover damages for injury to reputation if the defendants have combined to publish the truth about him. But a claim in conspiracy requires proof of actual pecuniary loss (none being presumed, as they would be in a claim in libel). No such loss had been pleaded.
Dillon LJ said: ‘ A further issue is whether, in the case of Lonrho plc, injury to business reputation can be recovered as a form of injury to property, sc goodwill; that involves considering what is meant by goodwill and – on the way the case has been argued by Mr Beveridge – whether fluctuations in the share price of a company reflect its goodwill and reputation.’ and ‘To prove loss of orders and loss of trade is another matter; that is recognisable pecuniary damage. The claim in respect of the joint venture with Iranian interests referred to in part II of schedule 2 to the particulars of damage could come in under this heading if a link between the loss of the venture and Miss Pollard’s campaign is sufficiently proved. Such loss of orders, for example, would involve injury to the goodwill of a business which may be one of the most important assets of the business. But goodwill in that sense must have the meaning put on that word in Trego v Hunt [1896] AC 7 esp at 17-18, 24, [1895-9] All ER Rep 804 esp at 809-810, 813 per Lord Herschell and Lord Macnaghten. It cannot mean some airy-fairy general reputation in the business or commercial community which is unrelated to the buying and selling or dealing with customers which is the essence of the business of any trading company. Again the well-established right to damages in passing off where deceptive goods have been put on the market and passed off as the plaintiff’s goods has a practical relationship to the plaintiff’s business, which is a long way from the allegations of injury to the business goodwill of Lonrho in the particulars: see Draper v Trist [1939] 3 All ER 513 at 519 per Greene MR and A G Spalding and Bros v A W Gamage Ltd (1918) 35 RPC 101 at 116, where Swinfen Eady LJ cited from the speech of Lord Sumner on the hearing of an earlier stage in that case in the House of Lords; those were straightforward deceptive goods cases which bear no resemblance at all to the elaborate allegation of injury to business goodwill or business reputation in the particulars in the present cas. . . Beyond that, Lonrho’s share price is not an aspect of Lonrho’s goodwill in the sense referred to above. The share price of Lonrho is not an asset of Lonrho at all. That the share price may be affected by the perceptions of stock market analysts, financial commentators and business journalists does not mean that the assets of Lonrho are affected by such perceptions or that Lonrho suffers pecuniary damage if its share price falls as a result of the publication of such perceptions . . Accordingly I would refuse to allow amendment to introduce the proposed sub-head (a) in the proposed particulars of the claim by Lonrho, and the whole of schedule 3 there referred to, and also the repetition of schedule 3 in para 1 of part 1 of schedule 4.’
Stuart-Smith LJ said: ‘I turn to the specific heads of damage in the proposed re-re-amendment. (a) ‘Damages for injury to Lonrho’s right of property in the goodwill of its business the value of which was diminished by each and/or all of the conspiratorial acts identified in part I of Schedule 2 hereto.’ With the exception of the allegations in the Esterhuysen proceedings and the demonstration outside Lonrho’s annual general meeting by Miss Pollard, these are all statements made by Miss Pollard. The manner in which goodwill is said to have been damaged is set out in schedule 3. In my opinion this schedule is nothing more than a complaint of injury to reputation with some wholly unspecified and unquantified injury to goodwill, which ranges from damage to the confidence of customers, the ability to attract employees and backers, the perception of stock market analysts, financial commentators and journalists and the impact on Lonrho’s share price. I would refuse leave to amend to include this paragraph. I reach this conclusion without regret because I consider the claim in para (a) even if it were or could be properly quantifiable as virtually untriable. The number of witnesses on both sides would be likely to be legion and how a judge could determine that it was Miss Pollard’s letters and other effusions, assumed for this purpose to be true, rather than other extraneous factors such as poor service, overborrowing, weak managerial control or the caprice of African ministers that cause a loss of business, if any, or adverse opinions of analysts, journalists, staff and others, I do not know.’

Judges:

Dillon LJ, Stuart-Smith LJ

Citations:

Times 27-Jul-1993, [1993] 1 WLR 1489 (abbreviated), [1994] 1 All ER 188

Jurisdiction:

England and Wales

Citing:

Cited – Trego v Hunt HL 1896
The court defined the meaning of the goodwill of a business: ‘What ‘goodwill’ means must depend on the character and nature of the business to which it is attached. Generally speaking, it means much more than what Lord Eldon took it to mean in the . .

Cited by:

Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Collins Stewart Ltd and Another v The Financial Times Ltd QBD 20-Oct-2004
The claimants sought damages for defamation. The claimed that the article had caused very substantial losses (andpound;230 million) to them by affecting their market capitalisation value. The defendant sought to strike out that part of the claim. . .
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Cited – Khader v Aziz and Another QBD 31-Jul-2009
The defendant sought to strike out a claim in defamation. Acting on behalf of his client the solicitor defendant was said to have called a journalist and defamed the claimant. The words were denied.
Held: Assuming (which was denied) that the . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.

Defamation, Contract

Updated: 10 May 2022; Ref: scu.83193

Lim Teng Huan v Ang Swee Chuan: PC 8 Jan 1992

A deed evidencing an agreement could be used in evidence in court even though it might itself be void for uncertainty. A party to the deed was estopped from denying its contents. Having built a house upon one half of jointly owned land, and thus, having acknowledged the joint title, he was not free subsequently to deny that title.

Citations:

Gazette 08-Jan-1992

Jurisdiction:

England and Wales

Estoppel, Contract, Commonwealth

Updated: 10 May 2022; Ref: scu.83067

Humphreys v Oxford University: CA 18 Jan 2000

In a transfer of undertakings, where the employee could show that the transfer of his employment to a new employer would lead to a real detriment, the transfer operated to entitle the employee to terminate his contract vis a vis the first employer and to claim damages for wrongful dismissal. The regulations had to be read so as to comply with the directive under which they had been made, and the intention of the directive was to protect rights, not to remove them.
Roch LJ discussed the need to apply the ECJ rulings on the interpretation of the Acquired Rights Directive: ‘That that is the correct reading and provides the answer to the first question is concluded, in my judgment, by the requirement that the Regulations must be read in a way which gives effect to the Directive as interpreted by the European Court.
Turning to the second question, ‘against whom is the employee to obtain his remedy?’ The European Court has decided that where a transfer of an undertaking takes place an employee is entitled to decide not to continue the contract of employment or employment relationship with the transferee. The Directive cannot be interpreted as obliging the employee to continue his employment relationship with the transferee. Where the employee decides not to continue with the transferee, the court has left it to Member States to provide whether in such cases the contract of employment or employment relationship must be regarded as terminated either by the employee or the employer. Member States may also provide that the contract of employment or employment relationship should be maintained with the transferor.’

Judges:

Roch LJ

Citations:

Times 18-Jan-2000

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

Jurisdiction:

England and Wales

Cited by:

Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 10 May 2022; Ref: scu.81527

Harbour and General Works Ltd v The Environment Agency: CA 22 Oct 1999

Where parties operated under a contract which provided for arbitration provided reference was claimed within a certain time scale, the failure of one party to apply for a reference in time because he had failed to read that part of the contract was not a sufficient reason to allow an extension of time. This applied even though the term was incorporated by reference, and that such applications need not be construed strictly.

Citations:

Times 22-Oct-1999, Gazette 10-Nov-1999, [1999] BLR 409

Jurisdiction:

England and Wales

Cited by:

Cited – J T Mackley and Company Ltd v Gosport Marina Ltd TCC 3-Jul-2002
The claimant challenged the validity of a notice to refer a case to arbitration. The respondent challenged saying that the court had no jurisdiction to hear the objection, and that such issues were to be decided by the arbitrator. The claim related . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract, Construction

Updated: 10 May 2022; Ref: scu.81226

Henry Boot Construction Ltd v GEC Alstom Combiined Cycles Ltd: CA 11 Apr 2000

A contract in Standard Institute of Civil Engineers conditions provided that variations in materials should be costed for in line with the costings schedules. The fact that the schedules were in error did not mean that they could departed from. A second clause limiting the application to situations where this provided a reasonable effect could not apply unless the prerequisites of the subsequent clause also applied, and the alterations in materials or works were substantial.

Citations:

Times 11-Apr-2000, Gazette 28-Apr-2000

Jurisdiction:

England and Wales

Contract, Construction

Updated: 10 May 2022; Ref: scu.81325

Garrow v Society of Lloyd’s: CA 28 Oct 1999

A proper counterclaim against Lloyd’s of London for fraudulent misrepresentation with an amount at stake equal to the amount claimed was a proper basis for setting aside a statutory demand for a sum due to Lloyd’s, despite the existence of a deed requiring members to ‘pay now and sue later’ which purported to disallow counterclaims and set-off.

Citations:

Times 28-Oct-1999, Gazette 03-Nov-1999

Jurisdiction:

England and Wales

Citing:

Appeal from – Garrow v Society of Lloyd’s ChD 18-Jun-1999
Lloyds sought to claim against the Names on a ‘pay now, sue later’ clause.
Held: The power to order a stay of execution for possession remained and could be exercised in an appropriate case even though a cross-claim under which it was . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 10 May 2022; Ref: scu.80758

Dodson v Peter H Dodson Insurance Services (A Firm): CA 24 Jan 2001

The driver was insured under a policy in his own name which referred to a particular vehicle, but which also provided him with third party cover when driving another motor vehicle with the owner’s consent. He disposed of his own car, but asked whether he would be covered to drive his mothers vehicle. She said that he would be. He drove, caused an accident, and became liable in damages. Each policy must be interpreted in the light of the actual words used, but the third party cover was a secondary policy which continued, and was not dependent upon his continued ownership of the nominated vehicle. There was no provision of any period in which any replacement vehicle had to be acquired and no obligation to inform the insurers of the disposal of the insured vehicle. He only had to notify the insurers of a new vehicle within seven days. To hold that the policy terminated on disposal of the vehicle unless replaced immediately by another would deprive him of cover when he might most need it. There was little ambiguity here, but the policy should be construed against the insurers.

Judges:

Mance LJ

Citations:

Times 24-Jan-2001, Gazette 25-Jan-2001, [2001] 1 Lloyd’s Rep 520

Jurisdiction:

England and Wales

Cited by:

Cited – GE Frankona Reinsurance Ltd v CMM Trust No.1400 (the ‘Newfoundland Explorer’) AdCt 22-Mar-2006
The owner sought to claim under his insurance policy. The yacht was, in the policy warranted to be fully crewed at all times. The owner had left the boat to return a few hours later when it was found on fire.
Held: The insurance claim failed. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 10 May 2022; Ref: scu.80084

ANC Ltd v Clark Goldring and Page Ltd and Another: CA 31 May 2000

The assignment of the fruits of an action for damages was a sale of property within section 436 of the Act, it was not within the exemption for champerty provided by the Act to a liquidator which arose from the statutory power of sale. The assignment of a cause of action assigned the right to pursue an action, but an assignment of the fruits of an action took place only in equity, and the assignee acquired no interest in the action itself.

Citations:

Times 31-May-2000

Statutes:

Insolvency Act 1986 436

Jurisdiction:

England and Wales

Contract, Insolvency

Updated: 10 May 2022; Ref: scu.77783

James Macara v Barclay: CA 1944

The court declined to express a view on the use of section 49(2) to order the return of a deposit.

Citations:

[1944] 2 All ER 31

Statutes:

Law of Property Act 1925 49(1)

Cited by:

Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 10 May 2022; Ref: scu.279043

The ‘Arsa’: 1925

The court considered whether an outlet valve in the hull of a shape amounted to ‘machinery’.

Citations:

(1926) 24 Ll L Rep 219, (1925) 23 Ll L Rep 273

Jurisdiction:

England and Wales

Cited by:

Cited – Reilly v National Insurance and Guarantee Corporation Ltd CA 19-Dec-2008
The claimant sold fire extinguishers. Three failed, resulting in damage to the purchaser’s properties. His insurers refused to pay an indemnity saying that the failure was the failure of a piece of machinery (the switchgear) and was not covered by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.279050

L Albert and Son v Armstrong Rubber Co: 1949

(United States Court of Appeals, Second Circuit) A purchaser of machines designed to recondition rubber sought damages for breach of contract, namely, the cost of the foundation on which the machines were placed. However, the purchaser did not prove the earnings he would have received from the machines had they been in conformity with the contract. Nor did the defendant prove that the plaintiff would not have recovered his expenditure had the contract been performed. It appears that it was a case where it was difficult to know what the result of the contract would have been.
Held: Learned Hand CJ discussed a plaintiff’s choice of damages claim for breach of contract: ‘In cases where the venture would have proved profitable to the promisee there is no reason why he should not recover his expenses. On the other hand, on those occasions in which the performance would not have covered the promisee’s outlay, such a result imposes the risk of the promisee’s contract upon the promisor. We cannot agree that the promisor’s default in performance should under this guise make him an insurer of the promisee’s venture; yet it does not follow that the breach should not throw upon him the duty of showing that the value of the performance would in fact have been less than the promisee’s outlay. It is often very hard to learn what the value of the performance would have been; and it is a common expedient, and a just one, in such situations to put the peril of the answer upon that party who by his wrong has made the issue relevant to the rights of the other. On principle, therefore, the proper solution would seem to be that the promisee may recover his outlay in preparation for the performance, subject to the privilege of the promisor to reduce it by as much as he can show that the promisee would have lost, if the contract had been performed.’

Judges:

Learned Hand CJ

Citations:

(1949) 178 F. 2d 182

Jurisdiction:

United States

Cited by:

Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Cited – Bowlay Logging Limited v Domtar Limited 1978
(Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .
Cited – C and P Haulage v Middleton CA 27-Jun-1983
The parties entered into an agreement allowing the defendant to occupy the plaintiff’s land. They had disputed whether it was a licence or a lease. The occupier had expended sums on improving the premises, but had then been summarily ejected. He now . .
Lists of cited by and citing cases may be incomplete.

International, Contract, Damages

Updated: 10 May 2022; Ref: scu.278876

Scott v Dawson: 1862

Citations:

(1862) 24 D 440

Jurisdiction:

England and Wales

Cited by:

Cited – Aitken v Standard Life Assurance Ltd SCS 3-Dec-2008
The pursuer averred that the defendant, his pension provider, had wrongfully reduced its final bonus by ten per cent without notifying him. He sought to imply a term into the contract to provide such an effect, saying that the contract promised an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.278433

Cole v Rose: 1978

The vendor had purported to rescind the contract and retain the deposit, while selling to another purchaser at a higher price.
Held: The purchaser was entitled to return of the deposit, because the notice to complete had been ineffective. After referring to Schindler, Mervin Davies J said: ‘With those observations in mind, it seems that one can contemplate an order under s 49(2) only if there are some special circumstances in the particular matter, being circumstances that suggest that it is perhaps unfair or inequitable that the purchaser should lose his deposit. I cannot see any special circumstances in the present case. It is a straightforward case of a contract for sale that was not completed because the purchaser could not find the purchase price in time.’

Judges:

Mervyn Davies QC J

Citations:

[1978] 3 All ER 1121

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Citing:

Cited – Schindler v Pigault 1975
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2).
Held: He was entitled to the repayment of the deposit on the first ground. The court went . .

Cited by:

Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 10 May 2022; Ref: scu.279044

Crantrave Ltd (In Liquidation) v Lloyd’s Bank Plc: CA 2002

A payment made by a person without compulsion, intending to discharge another’s debt, will not discharge that debt unless he acted with that other’s authority or if that other subsequently ratifies the payment.

Judges:

Pill LJ

Citations:

[2002] All ER (Comm) 89

Jurisdiction:

England and Wales

Citing:

See Also – Crantrave Ltd (In Liquidation) v Lloyd’s Bank Plc CA 18-May-2000
The bank received a garnishee order nisi, but acted before it was made absolute to pay the judgment creditor.
Held: The bank had no defence against the customer claiming restitution relying on the equitable doctrine that one person paying the . .

Cited by:

Cited – Treasure and Son Ltd v Dawes TCC 15-Sep-2008
The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.276499

Jacobsen, Sons and Co v Underwood: 1894

Citations:

(1894) 21 R 654

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.

Scotland, Contract

Updated: 10 May 2022; Ref: scu.276447

English v Donnelly: 1958

An agreement to subject to a foreign law a relationship which is in all other respects domestic equates with or is analogous to a contrary agreement.

Citations:

1958 SC 494

Cited by:

Cited – Office of Fair Trading v Lloyds TSB Bank PlC and Others HL 31-Oct-2007
The House was asked whether the liability of a credit card company under the 1974 Act applied where the contract was performed abroad and subject to foreign law.
Held: The principle which disapplied an English statute in an extra-territorial . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 10 May 2022; Ref: scu.276399

Toepfer v Warinco AG: 1978

The buyer’s representatives had failed to see that the cargo was coarse-ground meal rather than fine-ground meal. The seller defended pleading waiver, based on this omission.
Held: The defence failed because the buyer’s supervisor had failed to spot the discrepancy. The omission amounted to a failure to mitigate such that the buyers were only entitled to nominal damages. It is not necessary that an arbitration award should contain express findings of fact, provided that the necessary findings may be ‘spelled out’.

Judges:

Brandon J

Citations:

[1978] Lloyds Rep 569

Jurisdiction:

England and Wales

Cited by:

Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 10 May 2022; Ref: scu.277766

Morrell v Studd and Millington: 1913

The fact that a date has not been inserted into a deed does not generally affect its validity, which usually takes effect from the date of its delivery. Parol evidence is admissible to show when it was written and from what date it was intended to operate.
A vendor may waive a provision that the balance of the purchase price be secured to his satisfaction and could sue the purchaser for specific performance after foregoing that provision which was one solely for his benefit. However, when a contract is once made, no conduct or verbal waiver can be relied upon to substitute a different term from one appearing in the contract itself.

Judges:

Astbury J

Citations:

[1913] 2 Ch 648

Jurisdiction:

England and Wales

Cited by:

Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.277762

Rawlings v General Trading Co: 1920

Prospective bidders at an auction of military surplus stores had agreed that one should bid for their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods were knocked down to the defendant, but he went back on the agreement, which the plaintiff then sued to enforce.
Held: The action was dismissed. At any rate where goods were the property of the public, it was against public policy that people should combine at an auction to procure that goods were sold at a price considerably below their fair value, with the necessary result that the public were defrauded. It was the equivalent of secretly using a puffer to drive up the price.

Citations:

[1920] 3 KB 30

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rawlings v General Trading Co CA 1921
Prospective bidders at an auction of military surplus stores agreed that only one should bid. Thus the defendant was to bid on their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods . .
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: 10 May 2022; Ref: scu.270737

Clarke v Earl Dunraven: 1897

A court may be able to hold that there is a contract even though it is difficult or impossible to analyse the transaction in terms of offer and acceptance. ‘You should look at the correspondence as a whole and at the conduct of the parties and see therefrom whether the parties have come to an agreement on everything that was material. If by their correspondence and their conduct you can see an agreement on all material terms-which was intended thenceforward to be binding – then there is a binding contract in law even though all the formalities have not been gone through: see Brogden v. Metropolitan Railway Co. (1877) 2 App. Cas. 666.’

Citations:

[1897] AC 59

Cited by:

Cited – Gibson v Manchester City Council HL 8-Mar-1979
The plaintiff sought specific performance of what he said was a contract for the sale of land.
Held: The appeal succeeded. In a case where a contract is alleged to have been made by an exchange of correspondence between the parties, in which . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.272803

Distington Hematite Iron Co. v Possehl and Co: 1916

Rowlatt J said: ‘War does not create any contract.’

Judges:

Rowlatt J

Citations:

[1916] 1 KB 811

Cited by:

Cited – Metropolitan Water Board v Dick Kerr and Co Ltd HL 26-Nov-1917
In July 1914 the appellants contracted with the respondents, a firm of contractors, for the construction of a reservoir which was to take six years to build. The work was started, but in February 1916 the Minister of Munitions ordered it to cease . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.266314

London and North Western Railway Co v Neilson: HL 1922

Lord Buckmaster said: ‘My Lords, the common law imposes upon the carriers of goods definite and well-known liabilities for the protection of owners. These liabilities are frequently modified by the terms of express contracts, but except to the extent to which plain language effects alteration they still remain and cannot be removed by subtle implications or ambiguous words. No doubt has found place in any of the judgments in this case as to the soundness of this principle and none exists.’

Judges:

Lord Dunedin, Lord Buckmaster, Lord Atkinson, Lord Sumner

Citations:

(1922) 38 TLR 653, [1922] 2 AC 263

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 10 May 2022; Ref: scu.266864

Baily v De Crespigny: QBD 1869

A lessor had covenanted that neither he nor his assigns would build on a piece of land adjoining the demised premises. A railway company, under powers derived from a subsequent private Act, compulsorily acquired the land and erected a station on it.
Held: This relieved the lessor from his liability under the lease.
Liability to perform a contract may be discharged where events occur which would mean that continued liability would be ‘not to maintain the original contract, but to substitute a different contract for it.’
Hannen J said: ‘to hold a man liable by words in a sense affixed by legislation subsequent to the contract is to impose on him a deal he never made.’

Judges:

Hannen J

Citations:

[1869] LR 4 QB 180, (186) LR 4 QB 180

Jurisdiction:

England and Wales

Citing:

Cited – Brewster v Kitchell 1795
‘Where H covenants not do to an act or thing which was lawful to do, and an Act of Parliament comes after and compels him to do it, the statute repeals the covenant. So if H covenants to do a thing which is lawful, and an Act of Parliament comes in . .

Cited by:

Cited – Metropolitan Water Board v Dick Kerr and Co Ltd HL 26-Nov-1917
In July 1914 the appellants contracted with the respondents, a firm of contractors, for the construction of a reservoir which was to take six years to build. The work was started, but in February 1916 the Minister of Munitions ordered it to cease . .
Cited – Islwyn Borough Council and Another v Newport Borough Council CA 28-Jun-1993
Three local authorities disputed whether a contract had been made between them, and if so its terms, as to the financial support of a leisure centre.
Held: Later legislation need not frustrate agreement between the parties.
Hirts LJ said: . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.266313

Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd: 1994

The bookmaker defendant received a broadcast information service for which he was prepared to pay. That service carried another information service (‘BAGS’) for which the second provider also sought payment. The bookmaker was not prepared to pay for that, and said so. However the two services were not severable – one could not receive the first without the second. BAGS sought to claim from the bookmaker inter alia on the footing that he had received a service, benefited from it and knew that BAGS wanted payment for it in the sense that it was not free.
Held: Aldous J asked and answered the question as follows: ‘Does the law impose a duty upon a person to pay, when he receives and uses a service knowing that it is not being offered free; when he makes it clear to the provider of the service that he does not want the service and that he will not pay for it? The answer is, I believe, no . . When a party makes it clear to the provider of a service that he will not pay for it or does not want it, then it cannot be against the conscience of that man that he should refuse to pay for the service.’ and ‘If the provider of the service knows that the recipient does not intend to pay, he cannot complain if the recipient does not ultimately pay. In such circumstances, the law will not help him to obtain recompense unless he has some proprietary or contractual right.’

Judges:

Aldous J

Citations:

[1994] FSR 723

Cited by:

Distinguished on the facts – Greater Manchester Police v Wigan Athletic AFC Ltd ChD 21-Dec-2007
The claimant sought payment under section 25 from the defendant football club for the costs of policing football matches. The defendant said that the sums were not due since the events had been over-policed, and had not been agreed or requested.
Cited – Greater Manchester Police v Wigan Athletic AFC Ltd CA 19-Dec-2008
The parties disputed the amounts payable by a football club to the police for the attendance of police officers at matches. The defendant appealed against a finding that it had requested the services for which charges had been made under section 25 . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 10 May 2022; Ref: scu.262973

Black v S Freeman and Co: 1910

(High Court of Australia) A thief stole money from the husband, and gave it to the victim’s wife. The victim sought to recover it from her.
Held: The money was repayable. Once stolen it was subject to a trust in favour of the victim wich could not be defeated. O’Connor J said: ‘Where money has been stolen, it is trust money in the hands of the thief, and he cannot divest it of that character. If he pays it over to another person, then it may be followed into that other person’s hands. If, of course, that other person shows that it has come to him bona fide for valuable consideration, and without notice, it then may lose its character as trust money and cannot be recovered. But if it is handed over merely as a gift, it does not matter whether there is notice or not.’

Judges:

O’Connor J

Citations:

(1910) 12 CLR 105

Jurisdiction:

Australia

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: 10 May 2022; Ref: scu.259419

Young v Timmins: 1831

The servant had agreed not to work for anyone else bu the employer, but he might have been given no work and he received no remuneration for considerable periods.
Held: He had been deprived of a livelihood, and the agreement was in restraint of trade.

Citations:

(1831) C and J 331

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 10 May 2022; Ref: scu.259686

W J Tatem Ltd v Gamboa: 1939

The court considered a charterparty of one month’s duration, at a very high rate of freight, limited to trade from the northern ports in the hands of the Republican Government of Spain to ports in France and which made plain that the specific purpose of the charter was the evacuation of the civil population from North Spain. After the completion of only one voyage, the ship was seized by the Nationalists and no more could be done with it.
Held: It was clear that the foundation of the contract had been destroyed as soon as the vessel was seized – because the charterer was unable to make use of it or return it to the owners. The contract was frustrated from that time.

Judges:

Goddard J

Citations:

[1939] 1 KB 132

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: 10 May 2022; Ref: scu.259070

Carlisle and Cumberland Banking Company v Bragg: 1911

A party wishing to establish a plea of non est factum in order to avoid liability under a deed, must show that he had taken care in signing the document.
Held: There could not be negligence in the execution of a document unless a duty was owed to the person who acted upon it.

Citations:

[1911] 1 KB 489, 80 LJKB 472

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 – Alex Lawrie Factors Limited v Morgan and Others CA 5-Jul-1999
A statement of truth or affidavit must reflect the words and thoughts of the witness who signed it. It is not appropriate to include matters about which the witness could not themselves give evidence, including particularly complex arguments sought . .
Cited – Gallie v Lee HL 1971
Lord Wilberforce said that the principles of non est factum are designed to protect also innocent third parties who may rely upon a document signed apparently correctly. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.253147

Hardman v Falk: 1955

Canada – ‘The contract of a lunatic is voidable not void: see York Glass Co. v. Jubb, Courts of equity will not interfere if a contract with a lunatic is made in good faith without any knowledge of the incapacity of the lunatic and no advantage is taken. If the contract is fair and the respondent had no knowledge that the appellant was a lunatic, the appellant is without a remedy: see Wilson v. The King.’

Citations:

[1955] 3 DLR 129

Jurisdiction:

Canada

Cited 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 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, Commonwealth

Updated: 10 May 2022; Ref: scu.252476

Foster v MacKinnon: 1869

The court considered a plea of non est factum.
Held: Byles J set out situations where the plea was available: ‘It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs ; then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature, in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.’ and ‘But the position that, if a grantor or covenantor be deceived or misled as to the actual contents of the deed, does not bind him, is supported by many authorities.’ And ‘The defendant never intended to sign that contract, or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the actual contents of the instrument.’

Judges:

Byles J

Citations:

(1869) LR 4 CP 704

Jurisdiction:

England and Wales

Cited by:

Cited – Howatson v Webb ChD 1907
The defendant, a solicitor’s clerk, pleaded non est factum to an action on a mortgage deed he had signed. He said that he had thought it to be a deed transferring property held as nominee for the solicitor.
Held: The court should make . .
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: 10 May 2022; Ref: scu.253151

Galaxy Energy v Bayoil: CA 2001

The court equated reasonable efforts with due diligence.

Judges:

Rix LJ

Citations:

[2001] 1 Lloyd’s Rep 512

Jurisdiction:

England and Wales

Cited by:

Cited – Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc ComC 21-Feb-2007
The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.251420

Johnson v EBS Pensioner Trustees Limited: CA 2002

The court considered a request for rescission. A guarantee had been given by one of the defendants as security for a loan made by solicitors to his company. He complained that the solicitor acting for him had a conflict of interest and had been in breach of his fiduciary duty by failing to disclose that his firm received service charges on the loan.
Held: Rescission had been properly refused. Rescission was not available as of right, but was discretionary. Dyson LJ: ‘When exercising its equitable jurisdiction the court considers what fairness requires not only when addressing the question of the precise form of relief, but also when considering whether the remedy should be granted at all.’ However, the court ordered the solicitor to account for the service charge to his client.

Judges:

Mummery and Dyson LJJ and Douglas Brown J

Citations:

[2002] LlR PN 309

Jurisdiction:

England and Wales

Cited by:

Cited – Wilson and Another v Hurstanger Ltd CA 4-Apr-2007
The company sought to enforce its loan agreement and charge over the defendants’ property. The defendants appealed saying that the agreement was unenforceable under the Act, since a commission had been paid to the introducing broker, and his fee had . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.251000

Jolley v Carmel Limited: 2000

Kim Lewison QC said: ‘Where a contract is conditional upon the grant of some permission, the courts often imply terms about obtaining it. There is a spectrum of possible implications. The implication might be one to use best endeavours to obtain it (see Fischer v Toumazos [1991] 2 EGLR 204), to use all reasonable efforts to obtain it (see Hargreaves Transport v Lynch [1969] 1 WLR 215) or to use reasonable efforts to do so. The term alleged in this case [to use reasonable efforts] is at the lowest end of the spectrum.’

Judges:

Kim Lewison QC

Citations:

[2000] 2 EGLR 154

Cited by:

Cited – Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc ComC 21-Feb-2007
The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.251421

Union of India v Aaby’s Rederi A/S, The Evje: HL 1975

Lord Dilhorne said of the words ‘to be settled in London’: ‘At first sight those words appear to me to mean no more and no less than that the contributions to be made have to be determined in London and paid there, and that implies determined in accordance with English law.’ The phrase ‘to be settled in London’ did not to take the dispute out of the scope of an arbitration clause.
Neither Lord Salmond nor Lord Dilhorne could see a difference between clauses poviding for arbitration of disputes ‘arising under’ and ‘arising out of’ a contract.

Judges:

Viscount Dilhorne, Lord Salmon

Citations:

[1975] AC 797

Jurisdiction:

England and Wales

Cited by:

Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 10 May 2022; Ref: scu.248209

Alexander v Vane: 1836

The Plaintiff had given an oral guarantee to P that the Defendant would pay for certain goods ordered by him from P: if the Defendant did not pay P for the goods, he (the Plaintiff) would do so. The Defendant did not pay the full amount due and the Plaintiff did so in his place. He then sued the Defendant for the amount so paid. The Defendant resisted the claim saying that the Plaintiff could not have been made to pay, because the guarantee, not being in or evidenced in writing, was unenforceable under the Statute of Frauds.
Held: The Defendant was liable notwithstanding this argument. Lord Abinger CB said: ‘the promise was, that, if the Defendant did not pay, the Plaintiff would; there was therefore an agreement, that, if the money was paid for the Defendant, it might be recovered from him.’

Judges:

Lord Abinger CB, Baron Parke

Citations:

(1836) 1 MandW 511

Cited by:

Helpful – Re Chetwynd’s Estate CA 1938
A liability arose on a joint and several promissory note, where it was clear that one of the two parties (C) was the principal debtor and the other (S) was, as between them, in the position of a guarantor. The note did not comply with the 1927 Act. . .
Cited – Scottish and Newcastle Plc v Raguz CA 6-Mar-2007
The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.249879

Drimmie v Davies: 1899

Citations:

[1899] IR 176

Cited by:

Mentioned – 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: 10 May 2022; Ref: scu.251051

Nunes v Davies Laing and Dick Limited: 1985

The court set out the test for a valid counter-notice: ‘namely that the counternotice should be in terms which are sufficiently clear to bring home to the ordinary landlord that the tenant is purporting to exercise his right . . ‘

Judges:

Sir Nicolas Browne-Wilkinson V-C

Citations:

[1985] 51 PandCR 310

Cited by:

Cited – Rennie v Westbury Homes (Holdings) Ltd ChD 7-Feb-2007
The parties had entered into an option agreement for development of land. The developer purported to exercise an option extendng the applicable period, but having accepted the funds, the land owner denied that it had been validly exercised.
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.248458

R and H Hall Ltd v WH Pim Junr and Co Ltd: HL 1928

Pim sold a cargo of wheat to Hall at 51s 9d a quarter. Hall had agreed to sell a similar cargo to Williams at 56s 9d a quarter, and Williams to sell again Suzuki at 59s 3d a quarter. Pim bought a cargo of wheat on board the ‘S.S. Indianic’ at 60s a quarter. Pim later secured agreement with all concerned that the sales from Pim to Hall and from Hall to Williams and from Williams to Suzuki should be treated, in each case, as resales of the cargo the subject of the preceding purchase in the chain. Pim gave notice appropriating the Indianic cargo to its contract with Hall and that notice was passed down the chain. Pim sold the Indianic cargo to Rank at 59s 11.5d a quarter. When the cargo arrived the market price was 53s 9d a quarter. Having sold the cargo to Rank Pim could not deliver the documents covering the cargo to Hall. The Court of Appeal had held that Hall’s damages were limited to the difference between the market (53s 9d) and the contract (51s 9d) price at the date of the breach. Hall claimed the difference between the price at which they had bought (51s 9d) and the price (56s 9d) under their sub-sale to Williams.
Held: The House restored the decision of Rowlatt J that Hall was entitled to recover the difference between the price at which it had bought and the price at which it had resold the cargo together with an indemnity for the damages and costs which Hall would have to pay to the buyers who had brought from them. It treated the question as one of the application of the rule in Hadley v Baxendale.
Viscount Haldane said the contract was not merely for the sale of corn in bulk but for the sale of the cargo of an individual ship, either specifically identified or to be identified, by which the seller contracted to put the buyer in a position to fulfil such sub-contract as he might make. It did not matter whether the buyer was likely to enter into a sub-contract. He reached this conclusion on the terms of the contract alone without reference to what took place between the parties after the contract was made. Condition 1 of the contract had provided for notice of appropriation to be given by Pim, ‘and by each other seller’; the arbitration clause referred to intermediate buyers and sellers and to ‘the last buyer’; and the strike clause referred to notices being ‘passed on in due course’.
Viscount Dunedin said that both parties knew it was common practice to resell cargoes whilst afloat, that, apart from common knowledge, the contract itself showed this, and that the correspondence as to the actual appropriation of the vessel was additional proof, if proof were needed, of the familiarity of Pim with the practice of successive resales of cargo afloat. Pim knew as soon as it nominated a cargo that only delivery of that cargo could satisfy the contract, and it was sufficient to give rise to liability for loss of profit that there was an even chance of a sub-sale taking place.
Lord Shaw agreed with Viscount Haldane: ‘My principal reason is that I think that the two parties had actually provided for the very case of sub-sales’. He stated the proposition that a ‘not unlikely’ result of the breach must be reckoned to be within the contemplation of the parties as to its breach. He deprecated an ‘ultra analysis’ of Baron Alderson’s sentence into two portions ‘which are to be reckoned as necessarily and always two distinct and different cases’ and said: ‘These two things, arising naturally from or the probable result of the breach, need not be antithetically treated; they may run into each other and, indeed, be one. I think for instance, that in this case, where the string of sales was to the knowledge of the breaker of the contract within the very scope of the conditions of his bargain, it was fairly and reasonably to be expected, not only, to use the language of the judgment as ‘arising naturally i.e. according to the usual course of things, from such breach’, but also ‘such as may reasonably be supposed to have been in the contemplation of both parties, at the time that they made the contract, as the probable result of the breach of it’. What may be regarded as arising naturally from the breach, may itself be dependent on what is known to the parties at the time of the contract as a possible result of the breach.
Lord Phillimore thought the question to be one of contract. Notice or knowledge of an intended use would not do of itself: ‘But if the tribunal which tries the case comes to the conclusion that he contracted to sell or to carry on terms that he should be responsible for damage which might accrue from his failure to provide for any one of certain objects then he must be held liable’. The contract terms were such that the sellers ‘must be taken to have consented’ to a state of affairs whereby the purchasers would sell on in a string of sales and ‘thereby to have made themselves liable to pay to the appellants their profit on resale’.
Lord Blanesburgh held that it must be taken to have been within the contemplation of the parties that in the event of default by the sellers in tendering documents ‘their liability to their buyers in damages would be in exact correspondence with what it would have been if the contract had been specific all through and if to the knowledge of the sellers the sub-contract had at the date of that contract then existed or been in contemplation’.

Judges:

Viscount Haldane, Viscount Dunedin, Lord Shaw, Lord Phillimore, Lord Blanesburgh

Citations:

[1928] 30 LLR 159

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – James Finlay and Co Ltd v N V Kwik Tong HM CA 1929
It will be regarded as unreasonable to require a claimant to take steps which are likely to injure its commercial reputation, or otherwise t in a way it perceives to be commercially unwise, as a mitigation of damages.
Sankey LJ said of the . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 10 May 2022; Ref: scu.246868

London and Overseas Freighters v Timber Shipping Co SA “The London Explorer”: HL 1972

The London Explorer was under a charter where the hire was ‘to continue until the hour of the day of her redelivery’. The charterers redelivered the ship about 3 months late because, although she had set out on a legitimate last voyage, she had been delayed by strikes at her last two discharging ports.
Held: The owners recovered for the additional hire at the charterparty rate even though the market rate during the overrun period was less than the charterparty rate.
Lord Morris: ‘Even though the time set out in a charterparty is not made of the essence so that continued use of the vessel after the stated time will not at once have the result that such continued use will be in breach of contract, it will be necessary that redelivery should be within a reasonable time. It might well be . . that with a clause similar to clause 4 a charterer would be liable to pay hire at the contractual rate to the time of actual redelivery and in addition (if the current rate exceeded the contractual rate) to pay damages in respect of his failure to redeliver within a reasonable time’.
Lord Reid said: ‘There is a controversy as to whether one can ever look at deleted words in an agreement. If the words were first inserted by the draftsman of the agreement and then deleted before signature then I have no doubt that they must not be considered in construing the agreement. They are in the same position as any other preliminary suggestion put forward and rejected before the final agreement was made. But it appears to me that striking out words from a printed form is quite a different matter. The process of adapting a printed form to make it express the parties’ intentions requires two things to be done. Those parts which are not to be part of the agreement are struck out and words are inserted to complete the rest of the form so as to express the agreement. There is no inference that in striking out words the parties had second thoughts: the words struck out were never put there by the parties or any of them or by their draftsman.’

Judges:

Lord Morris, Lord Reid

Citations:

[1971] 1 Lloyds Rep 523, [1972] AC 1

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 10 May 2022; Ref: scu.246742

Armstrong v Jackson: 1917

Rescission was available to a defrauded principal even where the contract had been fully performed.

Citations:

[1917] 2 KB 822

Cited by:

Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.245562

Inland Revenue Commissioners v Raphael and Ezra: HL 1935

Parties to a contract should be presumed to have intended what in fact they have said.
The function of the recitals in a lease is to narrate the history leading up to the making of the lease.
Lord Wright said: ‘ . . the principle of the common law has been to adopt an objective standard of construction and to exclude general evidence of actual intention of the parties; the reason for this has been that otherwise all certainty would be taken from the words in which the parties have recorded their agreement or their dispositions of property. If in some cases hardship or injustice may be effected by this rule of law, such hardship or injustice can generally be obviated by the power in equity to reform the contract, in proper cases and on proper evidence that there has been a real intention and a real mistake in expressing that intention: these matters may be established, as they generally are, by extrinsic evidence. The Court will thus reform or re-write the clauses in order to give effect to the real intention. But that is not construction, but rectification.’

Judges:

Lord Wright

Citations:

[1935] AC 96

Jurisdiction:

England and Wales

Cited by:

Cited – Stone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 10 May 2022; Ref: scu.244793

Mottram Consultants Ltd v Bernard Sunley and Sons Ltd: HL 1975

Stone panels which had been fixed to the external walls of a school fell off, owing to defective fixing by the contractor.
Held: The contractor was liable for the cost of reinstating the stone panels, calculated at the date when the defect was discovered.
The parties disputed the interpretation of a building contract. The issue was whether or not it was the common intention of the parties to deny the right to the defendant to set-off against the amount claimed in a certificate. The certificates were issued by an architect. The House considered whether there existed a general rule for construing a contract, ‘namely, that one should approach each case without any ‘parti pris’ in favour or against the existence of a right of set off, though one must bear in mind the principle established in Mondel v Steel.’
Held: Even if there was a magic formula, meaning that the words ‘set-off’ or equivalent had to be used in express terms, then the failure to use it does not necessarily mean that that was not what the parties intended in the particular case. Lord Cross referred to the fact that the contract showed clearly that the proprietor was not entitled to withhold payment because of some allegation that there was an error made, and: ‘It was for the architect to put that right if need be in a monthly certificate. I think therefore that the Master was right to give Sunley judgment for the full sum claimed. . ‘
Lord Cross of Chelsea said: ‘When the parties use a printed form and delete parts of it one can, in my opinion pay regard to what has been deleted as part of the surrounding circumstances in the light of which one must construe what they have chosen to leave in. The fact that they deleted (iii) shows that these parties directed their minds (inter alia) to the question of deductions under the principle of Mondel v Steel [(1841) 8 M. and W. 858] and decided that no such deductions should be allowed.’

Judges:

Lord Cross of Chelsea, Lord Hodgson and Lord Wilberforce

Citations:

[1975] 2 Lloyd’s Rep 197

Jurisdiction:

England and Wales

Cited by:

Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 10 May 2022; Ref: scu.244717

Tidebrook Maritime Corporation v Vitol SA of Geneva: CA 5 Jul 2006

The charterer had given notice to the shipowner requiring the ship to be ready early under the charter. The shipowner appealed refusal of its claim for payment for the period by which the charter had been brought forward.
Held: The appeal succeeded.

Citations:

Times 04-Aug-2006

Jurisdiction:

England and Wales

Transport, Contract

Updated: 10 May 2022; Ref: scu.244716

Abram Steamship Company v Westville Shipping Company: HL 1923

The defendant argued for rescission of a shipbuilding contract for misrepresentation.
Held: Rescission in the general law of contract is by act of the innocent party operating independently of the court. When a contract is avoided the remedies are restitutionary.

Judges:

Lord Atkinson

Citations:

[1923] AC 773

Jurisdiction:

England and Wales

Cited by:

Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.244665

Daks Simpson Group plc v Kuiper: 1994

The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord Sutherland: ‘I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice.’ and ‘ ‘Without prejudice’ in my view means, without prejudice to the whole rights and pleas of the party making the statement. If, however, someone makes a clear and unequivocal admission or statement of fact, it is difficult to see what rights or pleas could be attached to such a statement or admission other than perhaps to deny the truth of the admission which was made. I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice. I would adopt what is said by Lord Wylie in Watson-Towers and the Canadian view expressed in Kirschbaum.’

Judges:

Lord Sutherland

Citations:

1994 SLT 689

Citing:

Followed – Watson-Towers Ltd v McPhail 1986
The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer’s evidence consisted of a letter from the defender making an offer expressed to be without . .
Followed – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Aproved – Richardson v Quercus Limited IHCS 24-Dec-1998
The pursuer owned a flat on the second and top floors of a building damaged by renovation works carried out by the defenders to the basement and ground floor of the same building. He relied on a letter by the defenders’ loss adjusters confirming . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 10 May 2022; Ref: scu.243124

Spence v Crawford: HL 1939

The vendor of shares sought rescission of a contract for their sale.
Held: He succeeded. Express orders for their return were made.
Lord Wright said: ‘Restoration, however, is essential to the idea of restitution. To take the simplest case, if a plaintiff who has been defrauded seeks to have the contract annulled and his money or property restored to him it would be inequitable if he did not also restore what he had got under the contract from the defendant. Though the defendant has been fraudulent, he must not be robbed, nor must the plaintiff be unjustly enriched, as he would be if he both got back what he had parted with and kept what he had received in return. The purpose of the relief is not punishment, but compensation. The rule is stated as requiring the restoration of both parties to the status quo ante . .’

Judges:

Lord Wright, Lord Thankerton

Citations:

[1939] 3 All ER 271, [1939] SC (HL) 52

Jurisdiction:

Scotland

Cited by:

Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 10 May 2022; Ref: scu.244662

Rose and Frank Co v J R Crompton and Bros Ltd: CA 1923

The court considered whether a contract had been brought into existence.
Held: Scrutton LJ said: ‘Now it is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement does not give rise to legal relations. The reason for this is that the parties do not intend that their agreement shall give rise to legal relations. This intention may be implied from the subject matter of the agreement, but it may also be expressed by the parties. In social and family relations such an intention is readily implied, while in business matters the opposite result would ordinarily follow.’
Atkin LJ said: ‘To create a contract there must be a comon intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly. Such an intention ordinarily will be inferred when parties enter into an agreement which in other respects conforms to the rules of law as to the formation of contracts. It may be negatived impliedly by te nature of the agreed promise or promises, as in the case of offer and acceptance of hospitality, or some agreements made in the course of family life between members of a family.’

Judges:

Scrutton LJ

Citations:

[1923] 2 KB 261, [1924] All ER Rep 245

Jurisdiction:

England and Wales

Cited by:

Cited – Edwards v Skyways Ltd QBD 1964
There had been a negotiation between representatives of the British Airline Pilots Association and the airline company regarding pension rights of pilots who were made redundant. The company contended that the representation made by it in the course . .
Cited – Esso Petroleum Limited v Commissioners of Customs and Excise HL 10-Dec-1975
The company set up a scheme to promote their petrol sales. They distributed coins showing the heads of members of the English football team for the 1970 World Cup. One coin was given with each for gallons of petrol. The Commissioners said that the . .
Appeal from – Rose and Frank and Co v JR Crompton and Bros Ltd HL 5-Dec-1924
For a contract to come into existence there has to be not only an intention to create legal relations but an agreement as to the terms of the contract. In a commercial contect there is a presumption of an intention to create legal relations. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.242893

Edwards v Skyways Ltd: QBD 1964

There had been a negotiation between representatives of the British Airline Pilots Association and the airline company regarding pension rights of pilots who were made redundant. The company contended that the representation made by it in the course of negotiations was not intended to give rise to legal relations, and the plaintiff sought to enforce the (expressed to be) ex-gratia payment. The court was asked whether a contract had been made between the parties.
Held: The promise and agreement made by the airline was made in the context of a business relationship and not in a domestic or social context, and therefore, the onus would be on the party denying that legal relations were intended to show that there was no intention to create legal relations.
Megaw LJ said: ‘In the present case, the subject matter of the agreement is business relations’ not social or domestic matters. There was a meeting of minds – an intention to agree. There was admittedly, consideration for the company’s promise. I accept the proposition of counsel for the plaintiff that in a case of this nature the onus is on the party who asserts that no legal effect was intended, and the onus is a heavy one.’
The use of a phrase such as ‘without prejudice’ should normally be interpreted as meaning that the party agreeing to pay ‘does not admit any pre-existing liability on his part’

Judges:

Megaw J

Citations:

[1964] 1 All ER 494, [1964] 1 WLR 349

Jurisdiction:

England and Wales

Citing:

Cited – Rose and Frank Co v J R Crompton and Bros Ltd CA 1923
The court considered whether a contract had been brought into existence.
Held: Scrutton LJ said: ‘Now it is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement does not give rise to . .

Cited by:

Cited – Esso Petroleum Limited v Commissioners of Customs and Excise HL 10-Dec-1975
The company set up a scheme to promote their petrol sales. They distributed coins showing the heads of members of the English football team for the 1970 World Cup. One coin was given with each for gallons of petrol. The Commissioners said that the . .
Cited – Judge v Crown Leisure Ltd CA 21-Apr-2005
The claimant appealed against dismissal at the ET and EAT of his claim for constructive dismissal. The court considered whether the employer had made a promise to the employee.
Held: Smith LJ said: ‘In my view, with respect, [the claimant’s . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.242894

in re A and K Holdings Pty Ltd: 1964

(Supreme Court of Victoria) A company (‘Castley Brothers’) in a group was in financial difficulties, and ten other companies in the group, one of which was A and K Holdings, executed a deed of guarantee which was expressed to be in favour of unsecured creditors of it. No unsecured creditors of Castley Brothers were parties to the deed, nor was an attempt made to establish a trustee for unsecured creditors and to join it as a party to the deed. Later a creditor of Castley Brothers sought to enforce the guarantee against A and K Holdings by petitioning for that company to be wound up. It was argued in opposition to the petition that the deed was ineffective, because it was addressed to no-one, nor could any intended beneficiary of the deed have been identified at the date when it was made.
Held: The guarantee was enforceable by a creditor of Castley Brothers directly against A and K Holdings. The deed took effect as ‘an immediately operative deed poll – a unilateral document made by each of the ten guarantor companies – but not intended to be executed by any other party’.

Judges:

Sholl J

Citations:

[1964] VR 257

Jurisdiction:

Australia

Cited by:

Cited – Moody and Another v Condor Insurance Ltd and Another ChD 3-Feb-2006
The claimants sought to enforce a deed of guarantee. The defendants argued that the claimant had no entitlement to enforce the deed, not being parties to it, and that they would be able to set aside the deed as against the company whose debts they . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.238872

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.

Judges:

Lord Brougham LC

Citations:

(1830) 3 Wilson and Shaw 398

Citing:

Cited – 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. . .

Cited by:

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: 10 May 2022; Ref: scu.236535

Amalgamated Building Contractors v Waltham Holy Cross Urban District Council: 1952

Where a contract made explicit allowance for extensions of time for performance, extensions could be granted retrospectively.

Citations:

[1952] 2 All ER 452

Cited by:

Cited – Shawton Engineering Ltd v Dgp International Ltd (T/A Design Group Partnership) and Another CA 18-Nov-2005
There had been a very substantial construction project, in which certain facets of design were sub-contracted and sub-contracted again to the parties. There were substantial delays and a sub-contractor purported to terminate the contract for failing . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.237280

Byrne v van Tienhoven and Co: 1880

The defendant offered by a letter to the plaintiffs to sell them goods at a certain price. They later wrote to the plaintiffs to withdraw the offer. Before they knew of the revocation, the plaintiffs accepted the offer by telegram. The defendants denied that any contract had been made.
Held: The contract was made. The revocation would only became effective when it was received by the plaintiffs, by which time, the contract had been made.
Lindley LJ said: ‘It may be taken as now settled that where an offer is made and accepted by letters sent through the post, the contract is completed the moment the letter accepting the offer is posted: Harris’ Case (1872) LR 7 Ch 587; Dunlop -v- Higgins (1848) 1 HLC 381, even although it never reaches its destination. When, however these authorities are looked at, it will be seen that they are based upon the principle that the writer of the offer has expressly or impliedly assented to treat an answer to him by a letter duly posted as as sufficient acceptance and notification to himself, or, in other words, he has made the post office his agent to receive the acceptance and notification of it. But this principle appears to me to be inapplicable to the case of the withdrawal of an offer. In this particular case I can find no evidence of any authority in fact given by the plaintiffs to the defendants to notify a withdrawal of their offer by merely posting a letter; and there is no legal principle or decision which compels me to hold, contrary to the fact, that the letter of the 8th of October is to be treated as communicated to the plinatiff on that day or on any day before the 20th, when the letter reached them. But before that letter had reached the plaintiffs they had accepted the offer, both by telegram and by post; and they had themselves resold the tin plates at a profit. In my opinion the withdrawal by the defendants on the 8th October of their offer of the 1st was inoperative; and a complete contract binding on both parties entered into on the 11th of October, when the plaintiffs accepted the offer of the 1st, which they had no reason to suppose had been withdrawn. Before leaving this part of the case it may be as well to point out the extreme injustice and inconvenience which any other conclusion would produce. If the defendants’ contention were to prevail no person who had received an offer by post and had accepted it would know his position until he had waited such a time as to be quite sure that a letter withdrawing the offer had not been posted before his acceptance of it. It appears to me that a letter withdrawing the offer had not been posted before his acceptance of it. It appears to me that both legal principles, and practical convenience require that a person who has accepted an offer not known to him to have been revoked, shall be in a position safely to act upon the footing that the offer and acceptance constitute a contract binding on both parties.’

Judges:

Lindley J

Citations:

(1880) 5 CPD 344 (CP)

Citing:

Explained – Cooke v Oxley 14-May-1790
A. having proposed to sell goods to B., gave him a, certain time at his request to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A. ; yet A. was not liable in an action for not . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 May 2022; Ref: scu.229855

Intraco Limited v Notis Shipping Corporation: CA 1981

‘Demand bonds’ are a specialised form of irrevocable instrument, developed by the banking world for its commercial customers. They have been accepted by the courts as the equivalent of irrevocable letters of credit, and have been described as part of ‘the lifeblood of commerce’ Donaldson LJ: ‘Thrombosis will occur if, unless fraud is involved, the courts intervene and thereby disturb the mercantile practice of treating rights thereunder as being the equivalent of cash in hand.’

Judges:

Donaldson LJ

Citations:

[1981] 2 Lloyd’s Rep 256

Jurisdiction:

England and Wales

Cited by:

Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 09 May 2022; Ref: scu.225901

Pickering v Sojex Services UK: 1982

An agreement by a chartered surveyor to take payment for negotiating a reduction in rateable value conditional upon success was not champertous since no litigation was envisaged.

Judges:

Kilner-Brown J

Citations:

[1982] 262 EG 770

Jurisdiction:

England and Wales

Cited by:

Cited – Picton Jones and Co v Arcadia Developments 1989
The plaintiff chartered surveyors agreed to act in the purchase of amusement arcades, on the basis that their fees would be payable ‘in the event of ultimate success.’ The work involved applications for gaming licences and planning permissions. The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.223961

Sotiros Shipping Inc v Sameiet: The Solholt: 1981

The seller did not deliver the vessel by the contractual date for delivery. The buyer exercised his right to cancel and to recover his deposit. He also claimed damages because the vessel was worth $500,000 more on the delivery date than she had been when the contract was made.
Held: A reasonable buyer would have offered, after cancellation, to take the vessel after all and that his loss was attributable to his own unreasonable conduct in failing to make such an offer (which would have been accepted by the seller).
The expression that a vessel had been ‘fixed subject to details’ means that ‘the main terms were agreed, but until the subsidiary terms and the details had also been agreed no contract existed’.

Judges:

Staughton J

Citations:

[1981] 2 Lloyd’s Rep 574

Jurisdiction:

England and Wales

Cited by:

Appeal from – Sotiros Shipping Inc v Sameiet; The Solholt CA 1983
The seller had failed to deliver the vessel he had sold by the delivery date. The buyer cancelled and requested return of his deposit, also claiming damages because the vessel was worth $500,000 more on the delivery date than she had been when the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 09 May 2022; Ref: scu.223527

Millichamp v Jones: 1982

A contract contained a clause 3 with a provision for the option to be exercisable by notice and in clause 5 the provision that ‘upon exercise of the . . option the intending purchasers shall pay to . . stakeholders by way of deposit . .’ Warner J held that payment of the deposit was not a condition precedent failure to fulfil which would prevent a bilateral contract coming into existence and the question was whether it constituted a sufficient breach to entitle the other party to treat that contract as discharged. The Plaintiff was entitled to some indulgence in relation to time as a matter de minimis. The obligation to pay a deposit was a term of the contract not a condition precedent.

Judges:

Warner J

Citations:

[1982] 1 WLR 1422, [1983] 1 All ER 267

Jurisdiction:

England and Wales

Cited by:

Approved – Damon Compania Naviera SA v Hapag-Lloyd International SA ‘The Blankenstein’ CA 1985
The buyers sought to rely on their own failure to pay a deposit to escape from a contract.
Held: They failed. A contract had been entered into by the ‘principals’, though the intention was that upon nomination by them there should be a . .
Cited – Haugland Tankers As v RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As ComC 9-Mar-2005
An option agreement was granted for the sale of a ship hull. The option was excercised but the defendant claimed the commitment fee required was not paid.
Held: The exercise of an option had to be in the precise terms set out in the contract. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.223448

British Workman’s and General Assurance Co Ltd v Wilkinson: 1900

The company sought interdict against an insurance agent who had left their service, to prevent him from trying to induce their other agents to leave and their customers to transfer their insurances. The agent’s written contract of employment did not contain any prohibition of this type of conduct but the contract had followed on a letter of application by the agent in which he had expressly agreed that, on the termination of the engagement, he would ‘not interfere with the Company’s agents, assurants, or business in any way whatever’.
Held: This was part of the contract: ‘It may not have been incorporated in the document which announced the respondent’s appointment, and in doing so professed to set out the terms of employment. But it was included in his application, and was at least a collateral undertaking on the faith of which he must be held to have been employed.’

Judges:

Lord Kyllachy

Citations:

(1900) 8 SLT 67

Jurisdiction:

Scotland

Contract

Updated: 09 May 2022; Ref: scu.223193

White v Bluett: 1853

The son complained at his father’s disposition of his property. He had given his father a promissory note. His father said that he would release the son from the promissiory note if the son ceased to complain.
Held: The promissory note could be enforced. The son’s promise was too vague, and gave no consideration, since he had only refrained from doing what he had no right to do.

Judges:

Pollock CB

Citations:

(1853) 23 LJ Ex 36, (1853) LTOS 123, (1853) 2 WR 75, (1853) 2 CLR 301

Jurisdiction:

England and Wales

Contract

Updated: 09 May 2022; Ref: scu.222035

Anderson v Daniel: CA 1924

Sellers of artificial fertilisers were required by law to include in their invoices details of the mixes used. The claimant seller sought payment under an invoice which failed to include the relevant information.
Held: The contract was valid when formed, but became unlawful in its performance. A party involved in such illegality could not claim under it: ‘When the policy of the Act in question is to protect the general public or a class of persons by requiring that a contract shall be accompanied by certain formalities or conditions, and a penalty is imposed on the person omitting those formalities or conditions, the contract and its performance without those formalities is illegal, and cannot be sued upon by the party liable to the penalties’

Judges:

Scrutton LJ

Citations:

[1924] 1 KB 138

Jurisdiction:

England and Wales

Cited by:

Cited – Garbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.222037

Dutton v Poole: CEC 1679

(Exchequer Chamber) Upheld

Citations:

(1679) T Raym 302, 83 ER 156

Jurisdiction:

England and Wales

Citing:

Appeal from – Dutton v Poole KBD 1678
A son made a promise to his father that, in return for his father not selling a wood, he would pay andpound;1000 to his sister. The father refrained from selling the wood, but the son did not pay. It was held that the sister could sue, on the ground . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.222002

Carnegie v Waugh: 1823

The tutors and curators of an infant executed an agreement for a lease with another, for an annual rent to be paid to the infant.
Held: The child could sue on the instrument, even though he was not a party to it.

Citations:

(1823) 1 LJ (OS) KB 89

Jurisdiction:

England and Wales

Contract

Updated: 09 May 2022; Ref: scu.222004