Category: Contract

Bourne v Mason: 1669

A party cannot sue under a contract entered into between others on the basis that he has not given consideration.

Citations:

86 ER 5, (1669) 1 Ventr 6

Jurisdiction:

England and Wales

Contract

Updated: 09 May 2022; Ref: scu.222006

Phillips v Bateman: 1812

A, was faced with a run on a banking house, and promised to support the bank with andpound;30,000. Note holders stopped withdrawing their money, but the bank subsequently stopped paying out.
Held: A was not liable to an action by individual holders of bank notes, under the doctrine of privity of contract.

Citations:

104 ER 1124, (1812) 16 East 356

Jurisdiction:

England and Wales

Contract, Banking

Updated: 09 May 2022; Ref: scu.222003

Gandy v Gandy: 1885

In spite of earlier cases to the contrary, Tweddle v Atkinson had laid down ‘the true common law doctrine’.

Judges:

Bowen LJ

Citations:

(1885) 30 ChD 57

Jurisdiction:

England and Wales

Citing:

Confirmed – Tweddle v Atkinson, Executor of Guy, Deceased QBD 7-Jun-1861
An agreement was made by the fathers of a bride and groom to pay the groom a sum of money. When the bride’s father failed to pay, the groom sued.
Held: The claim failed. Wightman J said that no stranger to the consideration could take . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.222007

Marchington v Vernon: 1797

Independently of the rules prevailing in mercantile transactions, where one person makes a promise to another for the benefit of a third, the third may maintain an action upon it.

Judges:

Buller J

Citations:

(1797) 1 Bos and P 101 n (c), 126 ER 801 n (c)

Jurisdiction:

England and Wales

Contract

Updated: 09 May 2022; Ref: scu.222001

Price v Easton: 1833

At common law, only the parties to the contract themselves can obtain rights and incur reciprocal obligations.

Citations:

(1833) 4 B and Ad 433, [1833] EngR 334, (1833) 4 B and Ad 433, (1833) 110 ER 518

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 09 May 2022; Ref: scu.221998

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

Brys and Gylsen v J and J Drysdale and Co: 1920

A literal interpretation of the Rules indicates that, where shippers and consignees select and pay for stevedoring, cargo claimants may recover compensation from owners for the negligence of cargo owners or the negligence of their stevedores, but ‘It would be an odd state of things if one were to hold that a shipowner who has no contract whatever with the stevedore, and who cannot say to the stevedore: You have broken your contract with me, and therefore I will not have you any longer in my vessel; and who has no control over what is to be paid to the stevedore, should be responsible for the failure of the stevedore to do his duty.’

Judges:

Greer J

Citations:

(1920) 4 Ll L Rep 24

Statutes:

Hague-Visby Rules

Cited by:

Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 09 May 2022; Ref: scu.219888

Foster v Driscoll, Lindsay v Attfield, Lindsay v Driscoll: 1929

During the American prohibition, a group in England and Scotland planned to ship 7,500 cases of whisky to North America, and hoped to make extraordinary profits. But they fell out and resorted to litigation between themselves.
Held: Sankey LJ said: ‘An English contract should and will be held invalid on account of illegality if the real object and intention of the parties necessitates them joining in an endeavour to perform in a foreign and friendly country some act which is illegal by the law of such country notwithstanding the fact that there may be, in a certain event, alternative modes or places of performing which permit the contract to be performed legally.’
The rule that where one party to a contract intends it to be performed in an unlawful way it will not be enforced at his behest, is only part of the wider principle that if both parties have that intent, neither can enforce it.

Judges:

Sankey LJ

Citations:

[1929] KB 287, [1928] All ER Rep 130

Cited by:

Cited – Regazzoni v Sethia HL 1957
The House considered a mutual intention of both parties to perform a contract, which was not illegal on its face, but in a manner which was contrary to the law of the place where it was to be performed.
Held: Lord Reid said: ‘To my mind, the . .
Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Cited – Soleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.200481

Bigos v Bousted: 1951

The defendant sought to send his family abroad for his daughter’s health, but wanted to provide more money than would be allowed under exchange controls. He entered into an unlawful arrangement with the plaintiff an Italian national to get around the controls, providing security for his repayment. The plaintiff sought to enforce the security, but abandoned that claim for its illegality. The defendant sought the return of his security saying that since the contract was yet executory, it was not yet illegal.
Held: The reason it had not gone ahead was not due to any repentance of its illegality, but rather frustration by the plaintiff. The parties were in pari delicto, and the court would not come to his aid to recover the security deposited.
Pritchard J said: ‘If a particular case may be held to fall within the category of repentance cases, I think the law is that the court will help a person who repents, provided his repentance comes before the illegal purpose has been substantially performed. If I were able, in this case, to take the view that the defendant had brought himself within that sphere of the authorities, it might well be that I would have been able to help him by saying that his repentance had come before the illegal purpose had been substantially performed, but I do not take that view. I think, however, that this case falls within the category of cases which I call the frustration cases, and that it is proper to regard it as in the same category as Alexander v. Rayson [1936] 1 KB 169 and Berg v. Sadler and Moore [1937] 2 KB 158, rather than as in the category of cases such as Taylor v. Bowers (1876) 1 QBD 291 and Kearley v. Thomson (1890) 24 QBD 742, and, to some extent, Hermann v. Charlesworth [1905] 2 KB 123.’

Judges:

Pritchard J

Citations:

[1951] 1 All ER 92

Statutes:

Exchange Control Act 1947

Cited by:

Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.200486

Youell v Bland Welch and Co Ltd (No 1): QBD 1990

The insurance slip was superseded by a formal policy. This was agreed but the defendant reinsurers submitted that the slip could be looked at as an aid to the construction of the policy.
Held: It was inadmissible: ‘The drafting of the slip formed no part of the relevant matrix in this case. That matrix was the background to the commercial adventure that formed the subject matter of the contract, not the mechanism by which the parties set about negotiating and reaching agreement . . the strict application of the parol evidence rule has a particular justification in a case such as the present. An insurance slip customarily sets out a shorthand version of the contract of insurance, in terms which may be neither clear nor complete. Where, as here, the slip provides for the formal wording to be agreed by the leading underwriter, the other subscribers to the risk anticipate and agree that the leading underwriter will, on their behalf, agree the final wording of the slip and that of the formal contract which is embodied in the policy give rise to the possibility that the natural meaning of the slip differs from that of the policy, the natural assumption is and should be that the wording of the policy has been designed the better to reflect the agreement between the parties. To refer to the slip as an aid to the construction of the policy runs counter to one of the objects of replacing the slip with the policy.’ and ”In the context of contracts of insurance the Courts have been particularly ready to depart from a literal meaning of the words used in order to produce a result that makes commercial sense ‘

Judges:

Phillips J

Citations:

[1990] 2 Lloyd’s Rep 423

Citing:

See also – Youell v Bland Welch and Co Ltd (‘The Superhulls Cover-Case) (No 2) QBD 1990
In estoppel it is necessary for there to have been an unequivocal representation of fact by words or conduct: ‘A party can represent that he will not enforce a specific legal right by words or conduct. He can say so expressly – this of course he can . .

Cited by:

See also – Youell v Bland Welch and Co Ltd (‘The Superhulls Cover-Case) (No 2) QBD 1990
In estoppel it is necessary for there to have been an unequivocal representation of fact by words or conduct: ‘A party can represent that he will not enforce a specific legal right by words or conduct. He can say so expressly – this of course he can . .
Appeal from – Youell and Others v Bland Welch and Co Ltd and Others CA 1992
The court considered whether an underwiter’s slip was admissible when construing the policy which followed.
Held: Staughton LJ said: ‘It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 09 May 2022; Ref: scu.199923

Taylor v Hamer: CA 2002

The parties were buyers and sellers of land. The seller’s husband removed a large area of flagstones after the buyer’s first inspection but before exchange. He seeded over the land so that, on a second inspection by the buyer’s solicitor, the removal was not obvious. The solicitor, did not appreciate that the flagstones had been removed, but, seeing a pile of flagstones asked about them. He was told (deceitfully) that these had not been taken from the property, and that they were not included in the sale, but were to be removed by the seller, as in fact happened. The contract contained a deemed inspection clause and Standard Condition 3.2.1. An incomplete schedule of fixtures and fittings to be included or excluded did not mention the flagstones. Standard Condition 5.1.1 referred to the ‘physical state . . at the date of the contract’). An entire agreement clause precluded reliance on statements or representations other than those contained in written replies to preliminary inquiries. The parties disputed the effect of the clause in relation to replies to preliminary inquiries.
Held: (By majority) The buyer had a contractual claim. The reference to the property being sold was to be interpreted to refer to the property with the fixtures which the buyer saw on his inspection, or reasonably believed to be included in his sale when he made his initial offer.
Sedley LJ said: ‘In the manner seminally described by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society . . the meaning to be ascribed to ‘the Property’ is the meaning it would be given by a reasonable person who knows what the parties knew at the time they contracted . . It includes the facts that the claimant had been shown premises which included the flagged dog garden and that he had not been told before contract that this was no longer part of the realty. In my judgment such facts are not within the exclusion zone of prior negotiation and subjective intent described in Lord Hoffmann’s third principle . . They are the normal means by which the subject matter of any offer and acceptance is identified.
This would probably be enough . . to make the flagstones part of ‘the Property’ for which the parties went on to exchange contracts. But here, additionally, the vendor deliberately induced the buyer, through his solicitor, to believe that there had been no such alteration. To Arden LJ’s question: why tell this lie? Ms Hargreaves [Counsel for the Seller] had no answer.
Against this background of fact any reasonable person, in my judgment, would have understood the property which was being bid for and contracted for to include the flagstones in the dog garden. The case falls outside the caveat emptor paradigm . . because the vendor, by his conduct in inviting an offer for the property as shown to the purchaser and without any explicit subtraction from it, represented that it was to include the flagged garden.
In everyday house purchases people are entitled to be confident that, unless some different agreement is reached and recorded, the property which is to pass includes its fixtures. If before the sale takes place the seller has given the buyer no reason to think that the fixtures (at least those the buyer knows of) are not part of the premises for which an offer is being invited, simple morality says that he cannot remove them without telling the buyer that they are no longer for sale. To fail to do so is to invite a bid for something which is no longer what the bidder still reasonably believes it to be; not to put too fine a point on it, it is cheating. Surreptitiously removing fixtures does not mean that the seller is stealing them, for they are his. It means that if the sale goes through he will be failing to convey what the eventual buyer has become entitled to have conveyed.’

Judges:

Arden, Sedley LJJ

Citations:

[2002] EWCA Civ 1130, [2003] 1 EGLR 103

Jurisdiction:

England and Wales

Cited by:

Cited – Sykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
Cited – Wickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 09 May 2022; Ref: scu.194793

O’Dea v Allstates Leasing System (WA) Pty Ltd: 17 Feb 1983

High Court of Australia – Contract – Breach – Penalty – Hire of vehicle for term – Liability of lessee on repossession before end of term – Provision that entire rent for term due at commencement of term – Entire rent not payable if instalments duly paid – Provision entitling lessor to retain possession and sue for total rent – No credit for accelerated payment – No credit for proceeds of sale of vehicle – Whether penalty – Equitable relief against forfeiture.

Judges:

Gibbs C.J.(1), Murphy(2), Wilson(3), Brennan(4) and Deane(5) JJ

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.593104

Wallingford v Mutual Society: HL 1880

Lord Hatherley said: ‘Now I take it to be as settled as anything well can be by repeated decisions, that the mere averment of fraud, in general terms, is not sufficient for any practical purpose in [a pleading]. Fraud may be alleged in the largest and most sweeping terms imaginable. What you have to do is, if it be matter of account, to point out a specific error, and bring evidence of that error, and establish it by that evidence. Nobody can be expected to meet a case, and still less to dispose of a case, summarily upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest.’
Lord Selbourne LC said: ‘With regards to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon; in a manner which would enable any Court to understand what it was that was alleged to be fraudulent.’

Judges:

Lord Hatherley, Lord Selbourne LC, (Lord Blackburn

Citations:

(1880) 5 App Cas 685

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice, Torts – Other

Updated: 09 May 2022; Ref: scu.592688

Thompson v T Lohan (Plant Hire) Ltd: CA 1987

The plaintiff’s husband had been killed as the result of the driver’s negligence in operating an excavator which had been hired by the second defendants for work at their quarry. The contract was subject to the CPA (Contractors’ Plant Association conditions of hire) terms which provided that drivers be regarded as the servants or agents of the hirer who, alone, should be responsible for all claims arising in connection with the operation of the plant.
Held: Terms and conditions may be incorporated by reference to specific terms and conditions in common use in the relevant industry. Condition 8 was not caught by UCTA 1977 and was effective to transfer liability to the hirers. Section 2(1) had no effect because liability was not excluded towards the victim of the negligent act, Mr Thompson. It only excluded liability towards T Lohan themselves. It transferred liability.
Fox LJ said: ‘As to the position of the two individuals principally concerned, Mr. Pinder was the quarry manager of the third party, and Mr. Danby was a director of Lohan. Mr. Pinder had previously hired from Lohan and knew that Lohan traded on the C.P.A. model terms – and the judge so found.’, ‘As to the position of the two individuals principally concerned, Mr. Pinder was the quarry manager of the third party, and Mr. Danby was a director of Lohan. Mr. Pinder had previously hired from Lohan and knew that Lohan traded on the C.P.A. model terms – and the judge so found.’ and of the CPA agreement: ‘The purpose of clause 8 was that, as between Lohan and the third party, Mr Hill should be regarded as the servant of the third party, who would be liable for his negligence accordingly. In my view, therefore, clause 8 is effective, at common law, as between the parties according to its tenor.’

Citations:

[1987] 1 WLR 649, [1987] 2 All ER 631

Statutes:

Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Contract, Personal Injury

Updated: 09 May 2022; Ref: scu.595469

Imperial Tobacco Company (of Great Britain) and Ireland v Parslay: CA 1936

Lord Wright MR said: ‘A millionaire may enter into a contract in which he is to pay liquidated damages, or a poor man may enter into a similar contract with a millionaire, but in each case the question is exactly the same, namely, whether the sum stipulated as damages for the breach was exorbitant or extravagant . .’

Judges:

Lord Wright MR

Citations:

[1936] 2 All ER 515

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.593102

Ringrow Pty Ltd v BP Australia Pty Ltd: 17 Nov 2005

High Court of Australia – Contract – Penalty – Agreement to purchase service station from distributor of fuel – Collateral agreement requiring fuel to be purchased exclusively from distributor – Breach of collateral agreement – Termination of collateral agreement by distributor pursuant to contractual power – Option to buy back service station exercisable by distributor on termination of collateral agreement – Whether option void and unenforceable as a penalty – Whether exercise of option oppressive or extravagant and unconscionable compared with genuine pre-estimate of damage – Relevance of proportionality to penalty questions.
GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ. These appeals concern the effect of contracts by which each of Ringrow Pty Ltd, Ultimate Fuel Pty Ltd and Nader-One Pty Ltd bought service stations from BP Australia Pty Ltd. The identical point arises in each appeal and it is convenient to confine analysis to the first appeal.

Judges:

Lgleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon JJ

Citations:

(2005) 222 ALR 306, [2005] HCA 71, (2005) 224 CLR 656, (2005) 222 ALR 306, (2005) 80 ALJR 219

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.593105

Else (1982) Ltd v Parkland Holdings Ltd: CA 1994

Hoffmann LJ spoke of the giving of relief in the context of a penalty: ‘mechanical in effect and involves no exercise of discretion at all.’

Judges:

Hoffmann LJ

Citations:

[1994] 1 BCLC 130

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.592684

Andrews v Australia and New Zealand Banking Group Ltd: 6 Sep 2012

Austlii High Court of Australia – Banker and customer – Penalty doctrine – Consumer and commercial credit card accounts – Honour fee – Dishonour fee – Late payment fee – Non-payment fee – Over limit fee – Whether those fees penalties – Whether penalty doctrine limited to circumstances where there is breach of contract – Significance of law respecting penal bonds – Grounds for equitable intervention – Whether penalty doctrine now wholly a rule of common law.
Equity – Doctrines and remedies – Relief against penalties – Significance of law respecting penal bonds – Whether relief available only in cases of breach of contract – Whether penalty doctrine now wholly a rule of common law.
Words and phrases – ‘bond’, ‘condition’, ‘dishonour fee’, ‘exception fees’, ‘honour fee’, ‘penalty’.

Judges:

French CJ, Gummow, Crennan, Kiefel, Bell JJ

Citations:

[2012] HCA 30, (2012) 247 CLR 205, (2012) 290 ALR 595, [2012] ASC 155, (2012) 86 ALJR 1002

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Banking

Updated: 09 May 2022; Ref: scu.593106

In re Dagenham (Thames) Dock Co; Ex parte Hulse: CA 1873

The Court of Appeal in chancery heard an appeal from the Master of the Rolls from his refusal of the Master of the Rolls to make a declaration in the winding up of the purchaser company. The purchaser had sought a direction that if the balance of the purchase monies were paid with interest it should be relieved from termination of the contract brought about by its not paying the purchase money by the due date. The Lord Justices held that the forfeiture was in the nature of penalty from which the court would relieve. Relief was to be granted, not against the forfeiture of the instalments, but against the forfeiture of the estate under a contract which involved the retention of the purchase money. The Court granted the purchaser, who had been in possession for five years and carried out improvements, further time to pay the second and final instalment of a purchase price on the ground that the clause requiring him to vacate and to forfeit the first instalment for not having paid the second instalment on time, was a ‘penalty’.

Citations:

(1873) LR 8 Ch App 1022

Jurisdiction:

England and Wales

Cited by:

Approved – Kilmer v The British Columbia Orchard Lands Limited PC 26-Feb-1913
British Columbia . .
Cited – Legione v Hateley 1982
(High Court of Australia) Purchasers of land were put on notice that unless they paid the price by 10th August the contract of sale would be rescinded. On 9th August the purchasers’ solicitor telephoned the vendor’s solicitors and spoke to the . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 09 May 2022; Ref: scu.593110

Erith Contractors Limited v Costain Civil Engineering Limited: 1994

The meaning and effect of clause 18(2) was considered.
Held: It was axiomatic that if the contractor requires the sub-contract dispute to be dealt with jointly with the main contract dispute with the employer in accordance with the provisions of clause 66 of the main contract, he is under an obligation to take the necessary steps to have the two disputes dealt with in accordance with clause 66.

Judges:

His Honour John Lloyd Q.C

Citations:

[1994] ADRLJ 123

Jurisdiction:

England and Wales

Cited by:

Cited – Lafarge Redlands Aggregates Limited (Formerly Redland Aggregates Limited) v Shephard Hill Civil Engineering Limited HL 27-Jul-2000
Once a main contractor chose, under the standard form contract, to have his dispute with one sub-contractor referred to arbitration as part of another dispute with a different contractor, he should complete the procedure within a reasonable time. It . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction

Updated: 09 May 2022; Ref: scu.191138

Mallan v May: 1844

The court considered the possible consequences of interpretation of a contract: ‘We must apply the ordinary rules of construction to this instrument; and though, by so doing, we may, in some instances, probably in this, defeat the real intention of the parties, such a course tends to establish a greater degree of certainty in the administration of the law.’

Judges:

Pollock CB

Citations:

(1844) 13 M and W 511

Jurisdiction:

England and Wales

Cited by:

Cited – AIB Group (UK) Plc (Formerly Allied Irish Banks Plc and AIB Finance Limited) v Martin and Another HL 13-Dec-2001
Where a mortgage was taken out by business partners, their liability was joint and several. Partners had taken out a loan, but the terms of the mortgage appeared to make each debtor liable for all sums due from either of them, including for debts to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.191135

Wright v Tennent Caledonian Breweries Ltd: IHCS 1991

The court sought to construe a deed of variation of a loan agreement. In the case of two or more individuals, the obligations and conditions affecting the borrower were to be binding on the individuals ‘jointly and severally’. Despite this, one of the debtors submitted that her liability under the loan agreement was only pro rata, because it would have required clear provisions in the deed of variation to incorporate the joint and several liability into the loan agreement.
Held: The court rejected that argument. Lord Allanbridge: ‘In my opinion the statement in clause 1.03 of the deed of variation that the obligations and conditions affecting the borrower shall be binding on two or more persons jointly and severally goes beyond a mere definition of the expression ‘the borrower’. It is concerned not with the question who is to be taken to be the borrower – that is to say, with the person or persons to whom that expression extends – but with the measure of the obligations undertaken by those persons in that capacity.’ The whole structure of the loan agreement as varied ‘including the use of the expression ‘the borrower’ in the singular at the outset to describe the two persons who are to receive the loan’ confirmed his view that the debtors’ liability under the agreement was joint and several (as opposed to pro rata).

Judges:

Lord Allanbridge, Lord Sutherland Lord President Hope

Citations:

1991 SLT 823

Jurisdiction:

Scotland

Cited by:

Cited – AIB Group (UK) Plc (Formerly Allied Irish Banks Plc and AIB Finance Limited) v Martin and Another HL 13-Dec-2001
Where a mortgage was taken out by business partners, their liability was joint and several. Partners had taken out a loan, but the terms of the mortgage appeared to make each debtor liable for all sums due from either of them, including for debts to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.191136

Tharsis Sulpur v McElroy and Sons: HL 1878

A contractor asked to carry out works was entitled to be paid on a quantum meruit basis if no price appeared to have been set under the contract.

Judges:

Lord Chancellor Cairns

Citations:

(1878) 5 R (HL) 171

Cited by:

Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 May 2022; Ref: scu.185450

Uren v First National Home Finance Ltd: ChD 10 Nov 2005

The claimant sought damages on the basis that the defendant had an enrichment of the defendant which the court should consider unfair.
Held: There was no general free-standing claim of unjust enrichment. The claimant was obliged to include a claim for unjust enrichment as part of the familiar and developing law of restitutionary claims. The claim failed.

Judges:

Mann J

Citations:

Times 17-Nov-2005, [2005] EWHC 2529 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Contract

Updated: 09 May 2022; Ref: scu.235143

Mixnams Properties Ltd v Chertsey Urban District Council: HL 1965

The local authority was not entitled under the 1960 Act to lay down conditions relating to the licensee’s powers of letting or licensing caravan spaces to its customers. The freedom to contract is a fundamental right, and that if Parliament intends to empower a third party to make conditions which regulate the terms of contracts to be made between others then, even where there is an appeal to a court of law against such conditions, it must do so in clear terms. Viscount Dilhorne: ‘In the present case there appears to me to be a fundamental difference between prescribing what must or must not be done on a site and restricting the site owner’s ordinary freedom to contract with his licensees on matters which do not relate to the manner of use of the site. Conditions can make the site owner responsible for the proper use of the site and it is then for him to make such contracts with his licensees as the general law permits. I can find nothing in the Act of 1960 suggesting any intention to authorise local authorities to go beyond laying down conditions relating to the use of sites, and in my opinion the general words in section 5 cannot be read as entitling them to do so.’

Judges:

Lord Upjohn, Viscount Dilhorne

Citations:

[1965] AC 735

Statutes:

Caravan Sites and Control of Development Act 1960

Jurisdiction:

England and Wales

Cited by:

Cited – Stewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Cited – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Contract, Local Government, Licensing

Updated: 09 May 2022; Ref: scu.195471

Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’): HL 28 Mar 2007

The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq war broke out, under which the charterer could have terminated the charter as of right. The defendant asked that the damages be reduced even though this event occurred after the repudiation.
Held: Awards of damages for breach of contract are compensatory. The damages were to be assessed to make allowance for events after the repudiation which reduced them.
Lord Bingham (dissenting) said that the later events should not be taken account of: ‘contracts are made to be performed, not broken. It may prove disadvantageous to break a contract instead of performing it. [I]f, on their repudiation being accepted, the charterers had promptly honoured their secondary obligation to pay damages, the transaction would have been settled well before the Second Gulf War became a reality.’ and ‘the owners were, as the arbitrator held, entitled to be compensated for the value of what they had lost on the date it was lost, and it could not be doubted that what the owners lost at that date was a charterparty with slightly less than four years to run.’ Lord Walker agreed.
Lord Scott of Foscote dismissed the owners appeal and said: ‘The assessment at the date of breach rule is particularly apt to cater for cases where a contract for the sale of goods in respect of which there is a market has been repudiated. The loss caused by the breach to the seller or the buyer, as the case may be, can be measured by the difference between the contract price and the market price at the time of the breach. The seller can re-sell his goods in the market. The buyer can buy substitute goods in the market. Thereby the loss caused by the breach can be fixed.’ but ‘where the contract for sale of goods is not simply a contract for a one-off sale, but is a contract for the supply of goods over some specified period, the application of the general rule may not be in the least apt.’ ‘Certainty is a desideratum and a very important one, particularly in commercial contracts. But it is not a principle and must give way to principle. Otherwise incoherence of principle is the likely result. The achievement of certainty in relation to commercial contracts depends, I would suggest, on firm and settled principles of the law of contract rather than on the tailoring of principle in order to frustrate tactics of delay to which many litigants in many areas of litigation are wont to resort.’
Lord Carswell said that ‘considerations of certainty and finality have in this case to yield to the greater importance of achieving an accurate assessment of the damages based on the loss actually incurred.’
Lod Brown of Eaton-Under-Heywood said: ‘the breach date rule does not require contingencies-such as the likely effect of a suspensive condition-to be judged prior to the date when damages finally come to be assessed.’ and ‘the owners’ argument here seeks to extend the effect of the available market rule well beyond its proper scope and to do so, moreover, at the plain expense of Lord Blackburn’s fundamental principle: to restore the injured party to the same position he would have been in but for the breach, not substantially to improve upon it. It is one thing to say that the injured party, mitigating his loss as the breach date rule requires him to do, thereby takes any future market movement out of the equation and to that extent crystallises the measure of his loss; it is quite another to say, as the owners do here, that it requires the arbitrator or court when finally determining the damages to ignore subsequent events (save where the defendants can demonstrate that at the date of breach some suspensive condition would inevitably-and immediately-have operated to cancel the contract). There is no warrant for giving the rule so extended an application. ‘

Judges:

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2007] UKHL 12, Times 30-Mar-2007, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Golden Strait Corporation v Nippon Yusen Kubishika Kaisha; ‘the Golden Victory’ CA 18-Oct-2005
Measurement of damages for repudiatory breach.
The parties had entered into a charter which was intended to last seven years. The charterers broke the charterparty. A war later occurred which would have cut the contract short in any event.
Cited – B S and N Limited (BVI) v Micado Shipping Limited (Malta) (‘The Seaflower’) 19-Apr-2000
A time charterparty was dated 20 October 1997 for a period of 11 months, maximum 12 months at charterers’ option. It referred to various major oil company approvals, including that of Mobil, all on the point of expiring, and provided that if, during . .
Cited – Jamal v Moolla Dawood, Sons and Co PC 3-Nov-1915
The plaintiff claimed damages from the buyer for his failure to accept shares contracted to be taken on a particular date. Two months after that date the sellers began to re-sell the shares on a rising market.
Held: Damages for breach of . .
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Dodd Properties (Kent) Ltd v Canterbury City Council CA 21-Dec-1979
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – In re Bradberry; National Provincial Bank Ltd v Bradberry ChD 1942
The parties disputed the date of valuation of an annuity during the course of the administration of an estate.
Held: The principle in Bwlfa was applied: ‘where facts are available they are to be preferred to prophecies’, and ‘Why should the . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Carslogie Steamship Co Ltd v Royal Norwegian Government HL 1952
The plaintiff’s vessel had been damaged in a collision, and underwent temporary repairs at Port Glasgow. It was certified as authorised ‘to be confirmed in her present class without fresh record of survey, subject to certain permanent repairs at the . .
Cited – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 15-Nov-2002
The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued.
Held: The property was to be . .
Cited – Curwen v James CA 1963
An appeal court had a discretion to hear relevant evidence of events after the date of judgment, in this case a change in circumstances of the victim’s widow, when considering a claim for damages for personal injury, where that evidence would . .
Cited – Murphy v Stone-Wallwork (Charlton) Ltd HL 1969
It had been assumed at the trial and in the Court of Appeal that the defendants would continue to employ the plaintiff and the assessment of future loss had been based upon that assumption. Shortly after the decision of the case by the Court of . .
Cited – Chapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .
Cited – Jobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
Cited – Aitchison v Gordon Durham and Company Limited CA 30-Jun-1995
A joint venture agreement to develop land had been broken. The parties disputed the date at which damages were to be assessed.
Held: The court took account of what actually happened later to decide what the claimant’s profit would have been. . .
Cited – Dudarec v Andrews and others CA 22-Mar-2006
In a claim for negligence against his former solicitors, the claimant sought damages for the loss of a chance of success in a personal injuries action struck out for want of prosecution seven years earlier.
Held: If the evidence were the same . .
Cited – McKinnon and another v E Survey Ltd (formerly known as GA Valuation and Survey Ltd) ChD 14-Jan-2003
The claimants purchased a house relying upon a survey by the defendants. Although the defendants reported long standing movement of the property, the defendants failed to report that to be saleable, a long investigation would be required, reducing . .
Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited – Jobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
Cited – Platt Site Services Ltd, Barkin Construction Ltd v Re-Source America International Ltd CA 8-Feb-2005
The plaintiff was the bailee of spools which were used to carry optic fibre cables which it was to refurbish. The spools were destroyed by fire.
Held: The company was entitled to recover the cost of replacing the spools, subject to a deduction . .
Cited – Wertheim v The Chicoutimi Pulp Company PC 18-Mar-1910
(Quebec) The buyer sought damages for late delivery of goods calculated on the difference between the market price at the place of delivery when the goods should have been delivered and the market price there when the goods were in fact delivered. . .
Cited – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .
Cited – Woodstock Shipping Co v Kyma Compania Naviera SA (‘The Wave’) 1981
There was a time charter for 24 months, 3 months more or less at charterers’ option. The owners repudiated the charter and the charterers accepted their repudiation on 2 August 1979.
Held: Assessing the charterers’ loss, and allowing for their . .
Cited – SIB International SRL v Metallgesellschaft Corporation (‘The Noel Bay’) CA 1989
The Noel Bay was let on a charterparty to carry oil between ports in Europe, with demurrage provisions. The owners treated the charterer’s failure to nominate a port, as a repudiation. The owners found alternative employment for the ship and sought . .
Cited – Kaines (UK) Ltd v Osterreichische Warrenhandelsgesellschaft Austrowaren Gesellschaft mbH CA 1993
In June 1987 the defendants repudiated a contract to sell the claimant’s crude oil for lifting in September 1987 and for payment in October 1987. The claimants thereupon contracted to buy the oil at a higher price, again for lifting in September . .
Cited – North Sea Energy Holdings Nv (Formerly Midland and Scottish Holdings Nv) v Petroleum Authority of Thailand CA 16-Dec-1998
The buyers repudiated an oil purchase agreement and the sellers accepted their repudiation. The sellers could not show that they would have been able to obtain the oil to sell.
Held: They were not entitled to substantial damages. . .
Cited – B S and N Limited (BVI) v Micado Shipping Limited (Malta) (‘The Seaflower’) 19-Apr-2000
A time charterparty was dated 20 October 1997 for a period of 11 months, maximum 12 months at charterers’ option. It referred to various major oil company approvals, including that of Mobil, all on the point of expiring, and provided that if, during . .
Cited – Dampskibsselskabet ‘Norden’ A/S v Andre and Cie S A ComC 30-Jan-2003
A forward freight swap agreement was treated as terminated because of the defendants’ breach of solvency guarantees. The parties agreed that the injured party’s loss was to be measured by the difference between the contract rate and the market rate . .
Cited – Vallejo v Wheeler 1774
Lord Mansfield said: ‘In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in . .
Cited – Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) CA 1983
Charterers of a ship sought relief from forfeiture of the charterparty on equitable grounds.
Held: No jurisdiction existed to grant such a relief. In a commercial agreement between commercial parties, the court had no jurisdiction to relieve a . .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Lavarack v Woods of Colchester Ltd CA 1967
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
At First Instance – Golden Strait Corporation v Nippon Yusen Kubishika Kaisha; ‘the Golden Victory’ TCC 15-Feb-2005
The parties had agreed a charterparty. The defendant repudiated the charter, but the Gulf War in 2003 meant that the the contract would have been frustrated in any event shortly afterwards.
Held: The assessment of damages for repudiation of a . .

Cited by:

Cited – Richmond Adult Community College v McDougall CA 17-Jan-2008
The claimant had been offered and had accepted a job subject to satisfactory health clearance. When that was not received her offer was withdrawn. She had suffered a condition which would affect her daily activities, but had recovered from that . .
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 – McDougall v Richmond Adult Community College EAT 13-Jul-2007
EAT Disability discrimination – Disability
Compulsory admission of a patient under the Mental Health Act is not automatically a disability under the DDA 1995. In the circumstances of this case the severity . .
Cited – Force India Formula One Team Ltd v Etihad Airways PJSC and Another QBD 4-Nov-2009
The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .
Cited – Edwards v Hugh James Ford Simey Solicitors SC 20-Nov-2019
The claimant sought damages saying that the defendant solicitors had failed to secure the incremental award of compensation under the vibration white finger scheme. The central issue was whether evidence which only became available later, but which . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Leading Case

Updated: 09 May 2022; Ref: scu.251021

Borkan General Trading Ltd v Monsoon Trading Ltd: CA 8 Jul 2003

A contract for a tug expressly provided a benefit for a third party. He now sought to claim benefit under it.
Held: If, in the absence of a trust in his favour a third party for whose benefit a contract had expressly been made, could not take that benefit, then a trust would be implied. In this case it had been correct to imply actual authority to contract on behalf of the claimant.

Judges:

Peter Gibson, Clarke LJJ, Dyson J

Citations:

Times 28-Jul-2003

Jurisdiction:

England and Wales

Citing:

Cited – Midland Silicones Ltd v Scruttons Ltd HL 6-Dec-1961
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the . .
Cited – The Mahkutai PC 24-Apr-1996
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 08 May 2022; Ref: scu.185203

Engell v Fitch: ChD 1869

The lease of land was sold at auction. The conditions of sale provided for possessionto be given on completion. The vendors, mortgagees with the right of sale, were unwilling to incur the expense of recovering possession.
Held: The vendor was under a duty to do everything possible to make good title. The ordinary rule which would limit the damages on the purchase of real property did not apply. The purchaser could recover, the deposit expenses of investigating title, the loss of profit on a resale and cost of conveyance to a sub-vendee. The measure was the difference between the price in the contract and the value of land at the time of the breach.

Citations:

(1869) LR 4 QB 659, 10 BandS 738, 38 LJQB 304, 17 WR 894 ex Ch

Jurisdiction:

England and Wales

Cited by:

Cited – Re Daniel, Daniel v Vassall 1917
The vendor of land who, whether through innocent or wiful default, or with or without bad faith, fails to do everything possible to make good title, makes himself liable in damages for the general losses of the purchaser, including any loss of . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Contract

Updated: 08 May 2022; Ref: scu.183264

Alfred C Toepfer v Peter Cremer: CA 1975

The court was asked as to the effect of a telex sent by the buyers to the sellers, notifying them that if a notice of appropriation was not received by the following day, then the buyers would treat the sellers as being in default, under clause 26 of the GAFTA Form 100. In fact the sellers had one more day before the last day of shipment under the contract. No notice of appropriation was received, so the buyers sent a further telex in which they claimed a ‘price fixing’ by arbitration, nominated their arbitrator and invited the sellers to do likewise. It was argued that these actions of the buyers constituted a repudiation of the contract.
Held: The argument failed. On the facts overall, the buyers were not repudiating the contract. The telex giving notice of default was a ‘misapprehension as to the date of default’. He held that the actions of the buyers, taken as a whole, indicated that they were not repudiating the contract but ‘insisting on it and claiming damages under it.’
Scarman LJ pointed out that the arbitrators had not found the action of the buyers to be repudiatory of the contract. He concluded that it was not possible to infer, from the telex, that had the sellers given notice of appropriation on the following day (ie. the last day for shipment), then the buyers would have rejected it. Therefore the telex was not a repudiation.
Lord Denning MR discussed estoppel: ‘When one person has led another to believe that a particular transaction is valid and correct, he cannot thereafter be allowed to say that it is invalid and incorrect where it would be unfair or unjust to allow him to do so. It is a kind of estoppel. He cannot blow hot and cold according as it suits his book.’
The rule that a plaintiff cannot recover for a cause of action which only accrued after the writ was issued, was a rule of practice rather than a rule of law. Moreover, it was a rule of practice which could be departed from whenever the justice of the case required.

Judges:

Lord Denning MR, Orr LJ, Scarman LJ

Citations:

[1975] 2 Lloyd’s Rep 118

Jurisdiction:

England and Wales

Cited by:

Cited – Aker Oil and Gas Technology UK Plc v Sovereign Corporate Limited TCC 15-Jan-2002
The claimants sought payment of a bonus for having completed the construction of a vessel on time. They claimed that certificates estopped the defendants from admitting the bonus to be due. The defendants said the certificates had been issued in . .
Cited – Iqbal v Dean Manson Solicitors CA 15-Feb-2011
The claimant sought protection under the Act from his former employers’ behaviour in making repeated allegations against him. He appealed against the striking out of his claim.
Held: The appeal suceeded. The matter should go to trial. The . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Contract

Updated: 08 May 2022; Ref: scu.183019

Lawrence and Another v Lexcore Holdings Ltd: 1978

Effect of a mistake in a document.

Citations:

[1978] 2 All ER 810

Cited by:

Cited – J S Bloor (Measham) Ltd v Eric Myles Calcott ChD 23-Nov-2001
The tenant had claimed a tenancy under the Act. The landlord sought to assert a proprietary estoppel against them. There was nothing in the 1986 Act to stop the claimants relying on a proprietary estoppel and asserting their claims to occupation. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.183049

Sciuriaga v Powell: 1979

The plaintiff made a claim for the breach of a contract to terminate pregnancy by abortion.
Held: The sole reason for the continuation of the pregnancy was the doctor’s breach of contract. Damages were awarded for pain and suffering and for actual and prospective loss of earnings and for diminution of marriage prospects but not for the maintenance of the child, which were not requested.

Judges:

Watkins J

Citations:

(1979) 123 Solicitors Journal 406

Cited by:

Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 08 May 2022; Ref: scu.182865

Gardano and Giampieri v Greek Petroleum George Mamidakis and Co: 1961

The shipment was made under a candf sale contract, a straight bill of lading, pursuant to a charterparty between the defendant and the claimant shipowner, Gardano. The bill named the Greek Ministry as consignee. The shipowner argued, relying on the 1855 Act that the shipper had lost its title to sue by the transfer of the bill of lading to the consignee.
Held: That argument failed. The section did not operate where property had passed under the express terms of the sale contract not on or by reason of the consignment but ex the loading installation. In an ordinary contract of sale in the traditional c.i.f or c. and f. form, the seller discharges his obligations as regards delivery by tendering a bill of lading covering the goods. The contract is one which, though not a sale, is a sale of goods performed by delivery of documents, and the property passes when the documents are taken up.

Judges:

McNair J

Citations:

[1961] 2 Lloyds Rep 259

Statutes:

Bills of Lading Act 1855 1

Cited by:

Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Lists of cited by and citing cases may be incomplete.

Transport, Commercial, Contract

Updated: 08 May 2022; Ref: scu.181890

Simpkins v Pays: 1955

The court found an intention to create legal relations and therefore an enforceable contract among the members of a family to share the winnings in a newspaper competition which the family regularly entered.
Sellers J said: ‘It may well be there are many family associations where some sort of rough and ready statement is made which would not, in a proper estimate of the circumstances, establish a contract which was contemplated to have legal consequence, but I do not so find here. I think that in the present case there was a mutuality of the arrangement between the parties.’

Judges:

Sellers J

Citations:

[1955] 1 WLR 975

Cited by:

Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .
Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.181864

Cannon Screen Entertainment Ltd v Handmade Films (Distributors) Ltd: 11 Jul 1989

It is a matter of construing the words of a contract used in accordance with their natural meaning and in the light of the surrounding circumstances in which the contract was made

Citations:

July 11, 1989 unreported

Cited by:

Cited – Brian McGowan v Summit at Lloyds SCS 12-Jun-2002
The contract provided for the exclusive jurisdiction of the English courts. The claimant challenged this under the Act. Held The 1982 Act modified art 17 of the Convention when putting it in effect. That difference did not lead to the conclusion . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.181247

Able and others v IBC Vehicles Ltd: EAT 20 Apr 2002

The parties sought construction of a term of the contract of employment as to the payments due when an employee was not required to work (lay-off). It provided for a payment during such a period, but the company suspended the clause after two weeks. Had the company given appropriate notice?
Held: The EAT was in as good a position as the original tribunal to construe a document. There were no issues of fact to settle. The clause required work to be unavailable at the time when the notice was given. The company could not give notice anticipating reduced demand. The idea was to give the workforce a breathing space once the company found itself in this position. There had been an unlawful deduction from the wages.

Judges:

His Hon Judge Clark

Citations:

EAT/409/01

Employment, Contract

Updated: 08 May 2022; Ref: scu.172148

Clark v Chandler: CA 28 Jun 2002

The respondent had purchased a property in her sole name, but held the property with her husband. On a breakdown of the marriage, he signed a transfer of the property but the consideration was not settled. After his death, it was argued that the document was ineffective under the 1989 Act because it had not been signed by both parties.
Held: The property was actually held under a joint tenancy. The failure to settle the consideration was enough to defeat its interpretation even as a conditional disposition. Accordingly the joint tenancy had not been severed, and the widow took the entire property by survivorship.

Judges:

Lords Justice Thorpe and Chadwick and Mr Justice Wall

Citations:

Gazette 11-Jul-2002

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2, Law of Property Act 1925 53(1)(c)

Jurisdiction:

England and Wales

Land, Contract, Equity, Wills and Probate

Updated: 08 May 2022; Ref: scu.174322

Barry Urquart Associates (a firm) v East Surrey Health Authority: CA 22 Jan 2002

A health authority appointed the claimant to begin work designing a new hospital. The hospital was completed by the defendant successor authority who had appointed a different firm of architects to complete the work. The claimant appealed a dismissal of its claim for the costs of the initial work undertaken.
Held: The contact failed to include any clause entitling payment for the initial works. Earlier papers suggesting this might happen had not been incorporated into the contract.

Judges:

Lord Justice Latham, Mr Justice Wilson

Citations:

Gazette 01-Feb-2002

Jurisdiction:

England and Wales

Construction, Contract

Updated: 08 May 2022; Ref: scu.167556

Norman Hudson v Shogun Finance Ltd: CA 28 Jun 2001

A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the buyer, but Cundy v Lindsay was binding, and the innocent purchaser had not obtained any title. The Act did not operate to protect him unless the rogue had been a debtor under the Act. The person whose signature had been forged could not be sued under the finance agreement. The rogue was not the hirer named in the agreement. The dealer was not the agent of the finance company, since he had no authority to make an agreement on their behalf. It was therefore impossible to apply the ‘face to face’ principle to suggest the contract was made with the rogue who presented himself at the showroom.

Judges:

Lord Justice Brooke, Lord Justice Sedley, Lord Justice Dyson

Citations:

Times 04-Jul-2001, [2001] EWCA Civ 1000

Statutes:

Hire Purchase Act 1964 27, Consumer Credit Act 1974 Sch 4 Para 22

Jurisdiction:

England and Wales

Citing:

Appealed to – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Applied – Cundy v Lindsay HL 1878
Cundy was asked to pay the linen manufacturers Lindsay and Co for 250 dozen cambric handkerchiefs which he had acquired from a crook who had acquired them from Lindsay by pretending to be the respectable business firm of Blenkiron.
Held: A . .
Cited – King’s Norton Metal Co Ltd v Edridge Merrett and Co Ltd CA 1879
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but . .
Cited – Re De Leeuw, Jakens v Central Advance and Discount Corporation Chd 1922
A deed which bears a false signature is a forgery and creates no rights whatever.
Where a party sues as trustee a judgment in the proceeding shall bind the persons having a beneficial interest under the trust as it does the trustee. . .
Cited – Gallie v Lee CA 1969
A deed bearing a false signature is a forgery and creates no rights at all. ‘If the deed was not his deed at all (non est factum), he is not bound by his signature any more than he is bound by a forgery. The document is a nullity just as if a rogue . .
Cited – Ingram v Little 27-Jul-1960
Two ladies had a car for sale. A buyer came along. He fooled them into believing him to be someone else, and they sold him the car, after checking the name in the telephone directory. Before the cheque bounced, the rogue sold the car to the . .
Cited – Branwhite v Worcester Works Finance Ltd HL 1969
A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor . .
Cited – Mercantile Credit Co Ltd v Hamblin CA 1964
Pearson LJ said: ‘There is no rule of law that in a hire purchase transaction the dealer never is, or always is, acting as agent for the finance company or as agent for the customer.Nevertheless, the dealer is to some extent an intermediary between . .
Cited – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – Hector v Lyons 1988
The appellant contracted to buy a house but used his under-aged son’s name. He sought specific performance when the vendor failed to complete.
Held: Since he was neither the purchaser nor the purchaser’s agent, specific performance was . .
Cited – Sowler v Potter 1939
The defendant had been convicted of an offence of permitting disorderly conduct in a cafe, under her proper name of Ann Robinson. She then assumed the name of Ann Potter. The plaintiff’s evidence was that, if he had known that she was Ann Robinson, . .
Cited – Fawcett v Star Car Sales Limited 1960
(New Zealand) ‘a void contract is a paradox; in truth there is no contract at all.’ and ‘the difficulty in deciding whether a mistake of identity prevents the formation of a concluded contract is a proper assessment of the facts rather than the . .

Cited by:

Appeal from – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Consumer, Contract, Torts – Other

Updated: 08 May 2022; Ref: scu.160060

Bank of East Asia Ltd v Scottish Enterprise and Another (Scots): HL 24 Jan 1996

A right of retention against unfulfilled obligations does not apply if those conditions came to be fulfilled. Where both sides are to perform a contract in stages, ‘the counter obligation and consideration for payment of stage one is the completion of the work for that stage conform to contract’ and ‘It follows that retention may be operated against corresponding obligations prestable but unfulfilled, but has no relevance to obligations duly performed.’

Judges:

Lord Jauncey

Citations:

Times 24-Jan-1996, 1997 SLT 1213

Jurisdiction:

Scotland

Cited by:

Cited – Luigi Macari v Celtic Football and Athletic Co Ltd SCS 8-Jun-1999
One of the issues was whether Mr Macari had been entitled to refuse to carry out the instructions of the managing director because the club were in breach of another obligation to him under the contract between the parties.
Held: In the . .
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.78154

Turner v Civil Supply Association Ltd: 1926

The defendants were furniture removers and warehousemen, and they entered into a contract to remove the plaintiff’s furniture from London to Hailsham. The contract was made subject to various conditions. The plaintiff’s goods were loaded on to the defendants’ motor lorry, and in the course of transfer a fire caused by the negligence of the defendants’ servants destroyed the bulk of the goods and damaged the remainder.
Held: Clause 11 In the contract did exempt the defendants from liability: ‘The contractors are not responsible for loss or damage caused by fire, aircraft or bombardment of property in transfer or in storage or in process of being packed.’ Sankey J said: ‘But just as a common carrier may exempt himself from liability by using express and unambiguous language, so also a carrier of the class with whom we are now dealing may exempt himself from liability by using proper words . . As far as this part of the discussion is concerned I think the familiar doctrine of law applies-namely, that if a man wishes to exempt himself from liability he must say so in clear and unambiguous terms.’

Citations:

[1926] 1 KB 50

Jurisdiction:

England and Wales

Cited by:

Disapproved – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Cited – Fagan v Green and Edwards Ltd 1926
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.566889

Tappenden v Artus: CA 1964

The owner of a van allowed a customer to use it pending completion of a hire-purchase agreement. The van broke down and was delivered to the defendant for repairs. The price of the repairs remained outstanding and a question arose whether the garage could exercise a lien over it against the owner.
Held: Diplock LJ described the common law possessory lien: ‘The common law lien of an artificer is of very ancient origin, dating from a time when remedies by action upon contracts not under seal were still at an early and imperfect stage of development: see the old authorities cited by Lord Ellenborough C.J. in Chase v. Westmore (1816) 5 M. and S. 180. Because it arises in consequence of a contract, it is tempting to a twentieth-century lawyer to think of a common law lien as possessing the characteristics of a contractual right, express or implied, created by mutual agreement between the parties to the contract. But this would be to mistake its legal nature. Like a right of action for damages, it is a remedy for breach of contract which the common law confers upon an artificer to whom the possession of goods is lawfully given for the purpose of his doing work upon them in consideration of a money payment. If, pursuant to the contract, the artificer does his work, he is entitled to retain possession of the goods so long as his charges, whether agreed in advance or (if not so agreed) payable upon a quantum meruit, are satisfied. The remedy can be excluded by the terms of the contract made with the artificer either expressly or by necessary implication from other terms which are inconsistent with the exercise of a possessory lien; cf. Forth v. Simpson (1849) 13 Q.B. 680, in the same way as the common law remedy in damages for breach of contract may be excluded or modified by the terms of the contract itself. But this does not mean that the remedy of lien, any more than the remedy in damages, is the result of an implied term in the contract to which what we may conveniently call the Moorcock (1889) 14 P.D. 64 criteria relevant to implying terms in a contract apply. The test whether or not the remedy exists is not whether or not its existence is necessary to give business efficacy to the contract. Judged by this test there would in modern times never be an artificer’s lien.
The common law remedy of a possessory lien, like other primitive remedies such as abatement of nuisance, self-defence or ejection of trespassers to land, is one of self-help. It is a remedy in rem exercisable upon the goods, and its exercise requires no intervention by the courts, for it is exercisable only by an artificer who has actual possession of the goods subject to the lien. Since, however, the remedy is the exercise of a right to continue an existing actual possession of the goods, it necessarily involves a right of possession adverse to the right of the person who, but for the lien, would be entitled to immediate possession of the goods. A common law lien, although not enforceable by action, thus affords a defence to an action for recovery of the goods by a person who, but for the lien, would be entitled to immediate possession.
Since a common law lien is a right to continue an existing actual possession of goods (that is to say, to refuse to put an end to a bailment) it can only be exercised by an artificer if his possession was lawful at the time at which the lien first attached.’

Judges:

Diplock LJ

Citations:

[1964] 2 QB 185

Jurisdiction:

England and Wales

Cited by:

Cited – Your Response Ltd v Datateam Business Media Ltd CA 14-Mar-2014
The claimant employed the defendant to manage subscription lists for the claimant’s magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.559266

Leicester County Council v Michael Faraday and Partners: CA 1941

The Court rejected a claim for production of all documents, books, maps and plans in possession of rating valuers who were employed by the County Council to give advice and held that the relationship of the County Council and the valuers was that of client and professional man and not that of principal and agent. Accordingly: ‘The documents which the valuers had prepared in carrying out their expert work on their own property; and that, as the agreement did not contain any provision requiring the valuers to hand over the documents to the plaintiffs, they were not bound to hand them over.’

Citations:

[1941] 2 KB 205

Jurisdiction:

England and Wales

Cited by:

Cited – Pepper (UK) Ltd (T/A Engage Credit) v Fox (P/A Barry Fox, Solicitors) ChNI 14-Jan-2016
Application by Pepper (UK) Ltd t/a Engage Credit against Emma Jane Fox practising as Barry Fox, Solicitors for the delivery up of all papers, documents and title deeds in the possession and custody of the Solicitors and belonging to the plaintiff . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.564919

Edwards v Walters: CA 1896

The holder of the promissory note gave a parol renunciation of all his rights. Further he delivered the promissory note back to a devisee of its maker, on whose real estate the obligations under the note were charged, and who had kept up the payments of interest.
Held: This did not work to discharge the promissory note. Section 62(1) of the 1882 Act would probably operate to include the ‘maker’ and his executors and or dministrators, but could not be extended to include a devisee of his estate. At law, an exoneration before any breach need not be made under seal, but a release of the note has to be under seal to be effective unless it could be brought within one of the exceptions provided by the 1882 Act.
Lindley LJ said, ‘A release in equity is often spoken of as something easy to establish. But I am not aware of any circumstances which amount to a release in equity and not at law except an agreement for valuable consideration to give a release or not to sue. Such an agreement, unless there is some reason for not enforcing it, has in equity the effect of a release.’

Judges:

Lindley LJ

Citations:

[1896] 2 Ch 157, 65 LJ Ch 557, 74 LT 396, 44 WR 547, 12 TLR 359, 40 Sol Jo 477

Statutes:

Bills of Exchange Act 1882 62(1)

Jurisdiction:

England and Wales

Equity, Contract

Updated: 08 May 2022; Ref: scu.565102

Llanelly Railway and Dock Company v London and North Western Railway Company: CA 1872

James LJ said: ‘I start with this proposition that prima facia every contract is permanent and irrevocable and it lies upon a person who say that it is revocable or determinable to show either something special in the contract itself, or something in the nature of the contract which it is reasonably to be implied that it was not intended to be permanent and perpetual, but was to be in someway or other subject to determination.’

Judges:

James LJ

Citations:

[1872] Ch App 948

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – 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.

Land, Contract

Updated: 08 May 2022; Ref: scu.554409

Frost v Knight: 1872

The doctrine of repudiatory breach is largely founded upon considerations of convenience and the opportunities which it affords for mitigating loss. It applies even where the obligation to be performed at a future date is a contingent obligation.
Where a repudiatory breach takes place, in order to terminate the contract, the innocent party must clearly and unequivocally accept the repudiation. If he does not do so, he will run the risk of being in breach himself were he not to perform his side of the bargain and thereby allow the original wrongdoer to ‘turn the tables’ on him.
Cockburn CJ said: ‘But in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract . . but also to take advantage of any supervening circumstance which would justify him in declining to complete it.’

Judges:

Cockburn CJ

Citations:

(1872) LR 7 Ex 111, 41 LJEx 78

Jurisdiction:

England and Wales

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: 08 May 2022; Ref: scu.538237

Campbell Discount Ltd v Gall: 1961

Citations:

[1961] 2 All ER 104, [1961] 1 QBD 431

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, Estoppel

Updated: 08 May 2022; Ref: scu.466404

Smith v Land and House Property Corporation: CA 1885

Bowen LJ said: ‘if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his opinion’.

Judges:

Bowen LJ

Citations:

(1885) LR 28 Ch D 7

Jurisdiction:

England and Wales

Cited by:

Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 08 May 2022; Ref: scu.463307

Afovos Shipping Co SA v R Pagnan and Fratelli: ChD 1980

Lloyd J regarded the fact that the breach of contract complained of involved the fault of the applicant as being a telling factor against the grant of relief. Wilful breaches will only exceptionally be relieved against.

Judges:

Lloyd J

Citations:

[1980] 2 Lloyds Rep 469

Jurisdiction:

England and Wales

Cited by:

Cited – Jet2Com Ltd v SC Compania Nationala De Transporturi Aeriene Romane Tarom Sa ComC 15-Mar-2012
The parties had contracted for the defendant to maintain certain of the claimant’s aircraft. Each now asserted breach by the other.
Held: Neither the terms of the contract nor its character made time of the essence for the payments to be made . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.459946

Mutual Finance Ltd v John Wetton and Sons Ltd: 1937

A relative of a forger gave a guarantee in circumstances where the forger had been threatened with prosecution. He now pleaded economic duress.
Held: The guarantee should be set aside. The court considered the distinction between dures and undue influence. Porter J said: ‘Not only is no direct threat necessary, but no promise need be given to abstain from a prosecution. It is enough if the undertaking was given owing to a desire to prevent prosecution and that desire were known to those to whom the undertaking was given. In such a case one may imply (as I do here) a term in the contract that no prosecution should take place . . A threat made by a party to a contract may be illegitimate when coupled with a demand for payment even where the threat is one an action which would otherwise be lawful.’
The line between permissible forms of persuasion and undue influence is ultimately regulated by considerations of public policy.

Judges:

Porter J

Citations:

[1937] 2 KB 389, [1937] 2 All ER 657

Jurisdiction:

England and Wales

Cited by:

Cited – Progress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
Cited – CTN Cash and Carry v Gallaher CA 15-Feb-1993
The buyer paid a sum demanded by the seller who threatened otherwise to withdraw the credit facilities it provided to the buyer. The sum was not in fact due, but the demand had been made honestly. The buyer said the agreement was voidable for . .
Lists of cited by and citing cases may be incomplete.

Contract, Undue Influence

Updated: 08 May 2022; Ref: scu.451443

Associated Distributors Ltd v Hall: CA 1938

The common law doctrine of penalty is inapplicable where the triggering event is not a breach of contract.

Citations:

[1938] 2 KB 83

Jurisdiction:

England and Wales

Cited by:

Approved (Obiter) – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.450463

Carillion Construction Ltd v Felix (UK) Ltd: 2001

Judges:

Dyson J

Citations:

[2001] BLR 1

Jurisdiction:

England and Wales

Citing:

Approved – DSND Subsea Ltd v Petroleum Geo Services Asa TCC 28-Jul-2000
Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .

Cited by:

Mentioned – Adam Opel Gmbh and Another v Mitras Automotive (UK) Ltd QBD 18-Dec-2007
The parties had agreed for the supply of automotive parts by the defendant to the claimant under a sole supply arrangement. None were in fact ordered for the first few years. The manufacturer then changed its design and made a new arrangement with a . .
Mentioned – Progress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.451444

C Hole v Garnsey: HL 1930

Under Rule 64 of a Society registered under the Act, rules could be amended ‘by resolution of a three-fourths majority at a special general meeting’. Various amendments were carried by a three-fourths majority of the shareholders. The effect of one of the amendments, if valid, was to impose on many members an obligation to subscribe for additional shares. The appellant was a dissentient member who sought to challenge the power of the society to impose such an obligation.
Held: The House considered the Society’s powers of amendment to its rules. A power of amendment reserved in a trust must be exercised for the purpose for which it was granted. The amendment here not only to lead to absurd and fundamentally unacceptable conclusions, but was also at variance with the essential nature of the transaction and the relationship between the parties.
Lord Tomlin said: ‘Does a power enabling a majority to amend the rules justify as against a dissenting member any alteration whatever, where, as here, neither by the statute nor by the rules themselves is any one rule expressed to be more fundamental and unalterable than any other?
The answer in my judgment must be in the negative. In construing such a power as this, it must, I think, be confined to such amendments as can reasonably be considered to have been within the contemplation of the parties when the contract was made, having regard to the nature and circumstances of the contract. I do not base this conclusion upon any narrow construction of the word ‘amend’ in Rule 64, but upon a broad general principle applicable to all such powers.’

Judges:

Lord Tomlin

Citations:

[1930] AC 472

Statutes:

Industrial and Provident Societies Act 1893

Jurisdiction:

England and Wales

Cited by:

Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.450167

Italmare Shipping v Ocean Tanker Co: CA 1982

The clause disputed by the parties provided: ‘If hire not received when due, Owners to give Charterers 48 hours notice in order to rectify the cause for such delay before exercising their [withdrawal] rights . .’ The owners withdrew the vessel after enquiring about whether hire had been paid, but without any prior warning. Application was made for leave to appeal.
Held: Lord Denning MR said: ‘These clauses vary in detail, but for the most part they provide that, before giving a withdrawal notice, the owners must give 48 hours notice. The reason is obvious. It is to give the charterers an opportunity of remedying their breach before they are exposed to forfeiture of their charter. It is comparable to the statutory notice which a landlord has to give to a tenant before enforcing a forfeiture clause.
The word ‘final’ means just that.

Judges:

Lord Denning MR

Citations:

[1982] 1 WLR 158

Jurisdiction:

England and Wales

Contract, Transport

Updated: 08 May 2022; Ref: scu.459944

Bunge Corporation v Tradax: CA 1980

Citations:

[1980] 1 Lloyds Rep 294

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bunge Corporation (New York) v Tradax Export Sa (Panama) HL 25-Feb-1981
The FOB contract for the sale of goods required the buyers to give notice of the probable readiness of the ships on which the goods were to be carried. The notice was given four days too late. The sellers declared the buyers in default and claimed . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 May 2022; Ref: scu.458599

Daniels v Trefusis: 1914

Mr Trefusis agreed with an agent called Mr Girdlestone to buy a house for andpound;700. Girdlestone was in fact acting for a Mr Daniels but later claimed to be a principal who had bought from Mr Daniels for andpound;600 and was sub-selling to Mr Trefusis at an increased price. Girdlestone commenced an action against Mr Daniels for specific performance of the agreement said to have been made between them. In the latter action (later dismissed) Mr Daniels’ solicitors wrote to Mr Trefusis’ solicitors asking for a short statement from Mr Trefusis as to what had occurred between him and Mr Girdlestone. The solicitors sent an unsigned statement by Mr Trefusis as to the verbal agreement he had made with Mr Girdlestone, and, later, replies to certain questions which Mr Daniels’ solicitors had posed. The accompanying letter said that they enclosed the questions with what were, and were said by them to be, Mr Trefusis’ answers. These answers were not, however, signed by him. It was common ground that the statement, answers and accompanying letter were sufficient to constitute a note or memorandum for the purposes of the Statute. When Daniels as vendor began an action against Trefusis as buyer Trefusis alleged, inter alia, that there was no memorandum satisfying the Statute.
Mr Trefusis contended that the solicitors were not in fact acting as his agents in providing the statements or proof from him, but were acting on behalf of the plaintiff, and that in any case their authority did not extend to signing a note or memorandum of the contract on the defendant’s behalf. Sargant J held that the first objection was untenable and that the second also failed. The solicitors had authority to forward to the plaintiff’s solicitors the documents which they sent. It did not matter that they may not have been contemplating that those documents would form a memorandum for the purposes of the Statute.
‘The unintentional by-product of satisfying the Statute may be produced as completely by a note or memorandum signed by an agent of the party as by a note or memorandum signed by the party himself, provided, of course, that the agent had authority to sign the particular note or memorandum’.

Citations:

[1914] 1 Ch 788

Statutes:

Statutre of Frauds 1677 4

Jurisdiction:

England and Wales

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

Updated: 08 May 2022; Ref: scu.430068

British Motor Body Co Ltd v Thomas Shaw (Dundee) Ltd: 1914

Judges:

Lord President Strathclyde

Citations:

1914 SC 922

Jurisdiction:

Scotland

Cited by:

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

Contract

Updated: 08 May 2022; Ref: scu.410702

N V Slavenburg’s Bank v Intercontinental Natural Resources Ltd: ChD 1980

The Bermudan company defendant had assigned stocks as a security. The security was not registered, and nor did the company have any registration within the UK. It was not the practice of the Registrar of Companies to accept particulars of charges for registration from an overseas company with a place of business in England.
Held: The absence of a file for a company at Companies House, through the failure of the oversea company to register its place of business, did not avoid the need to give particulars of any charge to the Registrar. The Bills of Exchange Acts apply to individuals only and not to corporations at all.

Judges:

Lloyd J

Citations:

[1980] 1 WLR 1076

Statutes:

Bills of Sale Act 1878 6 8

Jurisdiction:

England and Wales

Citing:

Cited – Read v Joannon 1890
The court considered the application of the 1878 Act.
Held: Where there are a series of Acts dealing with a topic and with similar names, the words ‘this Act’ in expressions such as ‘in this Act’ or ‘under this Act’ must be construed to mean . .
Cited – In re Standard Manufacturing Co CA 1891
Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures ‘issued by any mortgage, loan, or other incorporated company’. Nor were . .
Cited – Great Northern Railway Co v Cole Co-Operative Society 1896
A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally . .
Cited – Clark v Balm, Hill and Co 1908
A company registered in Guernsey issued debentures creating floating charges over real and personal property in England. The court was asked whether the debentures ought to be deemed to be within the Bills of Sales Acts and so ought to have been . .

Cited by:

Cited – Online Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 08 May 2022; Ref: scu.414892

William Style v William Martin And Elizabeth His Wife, Relict And Administratrix of Richard Bosvile, Esq And Bosvile, Son And Heir of The Said Richard: 16 Dec 1669

Original Bill to set aside a Decree (on a Bill of Revivor) as obtained by Fraud, andc., and the now Plaintiff no Party.o set aside a Decree

Citations:

[1669] EngR 652, (1669) 1 Chan Cas 150, (1669) 22 ER 737 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 07 May 2022; Ref: scu.407492

Strode v Parker: 27 Apr 1694

Citations:

[1694] EngR 19, (1694) 2 Vern 316, (1694) 23 ER 804

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.392969

Domina Holles v Wyse: 9 May 1693

Interest reserved at 5 pounds per cent. but if not duly paid, then to answer interest at 6 pounds per ann. Great arrear of interest. Mortgagor decreed to pay but 5 pounds per cent., the reservation at 6 per cent. being only as a Nomine Poenae -But where interest was reserved at 6 pounds per cent, and if duly paid, then agreed to take 5 pounds interest not duly paid, and court allowed 26 per Gent. Ant. Case 131 ; post, Case 303.
The plaintiff lent the defendant money on a mortgage at 25 per cent., interest, but if not punctually paid (every six months, RL), then to answer interest at 6 pounds per cent per ann, There being a great arrear of interest, the question was, whether it should be computed after the rate of 5 or 6 pounds per cent.

Citations:

[1693] EngR 18, (1693) 2 Vern 289, (1693) 23 ER 787 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.393068

Chilean Nitrate Sales Corporation v Pansuiza Compania de Navegacion SA and Marine Transportation Co Ltd (‘The Hermosa’): CA 1982

Donaldson LJ summarised the law as regards renunciation of a contract, saying: ‘The learned Judge formulated the test to be applied as being ‘whether MTC and the owners acted in such a way as to lead a reasonable person to conclude that they did not intend to fulfil their part of the contract’, and referred to the judgment of Mr. Justice Devlin in Universal Cargo Carriers Corporation v. Citati, [1957] 1 Lloyd’s Rep. 174; [1957] 2 Q.B. 401 at pp 193 and 436, and Maple Flock Co. v. Universal Furniture Products (Wembley) Ltd., [1934] 1 K.B. 148 at p. 157 . Since Mr. Justice Mustill gave judgment, the House of Lords has given judgment in Woodar Investment Ltd. v. Wimpey Construction U.K. Ltd. [1980] 1 WLR 277. While that decision is not directly in point it is useful for its review of the authorities. For present purposes we take from it the following propositions:
(a) Dissolution of a contract upon the basis of renunciation is a drastic conclusion which should only be held to arise in clear cases of a refusal to perform contractual obligations in a respect or respects going to the root of the contract.
(b) The refusal must not only be clear, but must be absolute. Where a party declares his intention to act or refrain from acting in a particular way on the basis of a particular appreciation of his obligations, either as a matter of fact or of law, the declaration gives rise to a right of dissolution only if in all the circumstances it is clear that it is not conditional upon his present appreciation of his obligations proving correct when the time for performance arrives.
(c) What does or does not amount to a sufficient refusal is to be judged in the light of whether a reasonable person in the position of the party claiming to be freed from the contract would regard the refusal as being clear and absolute?
One further proposition must be added, although it is not gleaned from or confirmed by the decision in Woodar’s case, namely, that (d) the conduct relied upon is to be considered as at the time when it is treated as terminating the contract, in the light of the then existing circumstances. These circumstances will include the history of the transaction or relationship. Later events are irrelevant, save to the extent that they may point to matters which the parties should have considered as hypothetical possibilities at the relevant time.’

Judges:

Donaldson LJ

Citations:

[1982] 1 Lloyd’s Rep 570

Jurisdiction:

England and Wales

Cited by:

Cited – SK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
Cited – Eminence Property Developments Ltd v Heaney CA 21-Oct-2010
The court was asked whether a vendor of land, who served a notice to complete making the time for completion of the essence of the sale contract, and then, mistakenly, treated the contract as at an end prior to the expiry of the notice, was thereby . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.381488

The Cape Hatteras: 1982

Citations:

[1982] 1 Lloyd’s Reports 518

Jurisdiction:

England and Wales

Cited by:

Cited – Celestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd ComC 4-Dec-2009
The claimant sought summary judgment for recovery of three aircraft (valued at US$36m each) leased to the defendant after non-payment of instalments. The defendant said that the default was based on a demand for supplementary rents which had not . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.381838

Sloman v Walter: 14 Nov 1783

Common law enforced the bonds according to their letter. But equity regarded the real intention of the parties as being that the bond should stand as security only, and restrained its enforcement at common law on terms that the debtor paid damages, interest and costs.
Lord Thurlow LC said: ‘where a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty only as accessional, and, therefore, only to secure the damage really incurred . .’

Judges:

Lord Thurlow LC

Citations:

[1783] EngR 158, (1783) 1 Bro CC 418, (1783) 28 ER 1213

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 07 May 2022; Ref: scu.372287

Hardy v Bern: 1794

This case, which is brought by writ of error from the Court of Exchequer, is an action of debt upon articles of agreement containing divers stipulations of things to be done by the defendant; and there is a penal clause, whereby the parties became mutually bound to each other in the penal sum of 100l for the performance of the articles. The action is brought for that penalty, and the plaintiff, in his declaration, alleged the breach of several of the stipulations entered into by the defendant. These breaches were severally denied by the defendant, and issues were joined thereon. All the issues were found for the plaintiff, and a verdict given for him for 1s.

Citations:

[1794] EngR 782, (1794) 5 TR 636, (1794) 101 ER 355 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.369714

Betts v Burch: 11 May 1859

Martin B regretted that he was ‘bound by the cases’ and prevented from holding that ‘parties are at liberty to enter into any bargain they please’ so that ‘if they have made an improvident bargain they must take the consequences’. Bramwell B did not share the concern.

Judges:

Martin B, Bramwell B

Citations:

[1859] EngR 585, (1859) 4 H and N 506, (1859) 157 ER 938

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.287937

Smith v Kay: HL 1859

A party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality.
Lord Cranworth rejected what he described as ‘a very desperate argument’ that a representation could not justify the setting aside of a bond because it was made some time before the bond was executed: ‘It is a continuing representation. The representation does not end for ever when the representation is once made; it continues on. The pleader who drew the bill, or the young man himself, in stating his case, would say, Before I executed the bond I had been led to believe, and I therefore continued to believe …’
Lord Chelmsford LC asked this question as to rescission based on an allegation of fraudulent misrepresentation: ‘can it be permitted to a party who has practised a deception, with a view to a particular end, which has been attained by it, to speculate upon what might have been the result if there had been a full communication of the truth?’

Judges:

Lord Cranworth, Lord Chelmsford LC

Citations:

[1859] EngR 38, (1859) 7 HLC 750, (1859) 11 ER 299

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 07 May 2022; Ref: scu.287390

Dingle v Hare: 15 Nov 1859

In an action for a breach of warranty on the sale of goods which the buyer has sold again.
Held: The proper measure of damages was the difference between the real market value at the time of the sale and the contract price. Quaere, whether the buyer might not have been entitled to recover a sum fairly and reasonably paid by him as compensation to a third person to whom he had upon the faith of the defendant’s warranty sold a portion of the goods?

Citations:

[1859] EngR 977, (1859) 7 CB NS 145, (1859) 144 ER 770

Links:

Commonlii

Jurisdiction:

England and Wales

Contract, Damages

Updated: 07 May 2022; Ref: scu.288329

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 may be rebutted by proving that the purchaser entered into the contract with knowledge of certain defects in the title. The inference in such a case is that he was content to take a title less complete than that which the law would otherwise have given him by implication.’
Viscount Haldane said that where the bargain for title is implied and not expressed, evidence can be ‘admitted to show that, in view of the knowledge of the parties prior to the contract, the usual implication to show a full title ought not to be made.’

Judges:

Lord Finlay LC, Viscount Haldane

Citations:

[1918] AC 503

Jurisdiction:

England and Wales

Citing:

Appeal from – Alderdale Estate Company v McGrary CA 1917
. .

Cited by:

Cited – Ezekiel and Another v Kohali and Another CA 30-Jan-2009
Each side sought specific performance of a contract set out in a Heads of Agreement document, but one sought an abatement in the price, saying that the seller was unable to deliver the title promised. The seller replied that the document did not . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 07 May 2022; Ref: scu.280273

North American and Continental Sales Inc v BEPI (Electronics) Limited: 1982

Citations:

1982 SLT 47

Jurisdiction:

Scotland

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: 07 May 2022; Ref: scu.278435

IIG Capital llc v Van der Merwe: CA 22 May 2008

The directors and holders of the entire share capital of the company appealed against a summary judgement making them personally liable under guarantees given to support a debt factoring arrangement for the company.
Held: The appeal failed. The contract made them liable for the sums certified to be due on demand and as principal obligor. The arrangement was to be construed in the light of the fact that the directors between them held the entire capital.

Judges:

Lord Justice Waller, Lord Justice Lawrence Collins and Lord Justice Rimer

Citations:

Times 25-Jun-2008

Jurisdiction:

England and Wales

Citing:

Appeal from – Van Der Merwe and Another v IIG Capital Llc ChD 13-Nov-2007
The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 07 May 2022; Ref: scu.278230

The Shackleford: ChD 1978

The charterers by the receivers had ‘accepted’ a notice of readiness which was ‘premature’ when given because customs entry had not been obtained as required by the relevant clause of the charterparty and so were estopped by their conduct from alleging that the notice was premature. The Notice of Rejection (NOR) might have been rejected for prematurity or it could have been ignored; however, it was formally accepted on no less than three occasions. Therefore the charterers could not subsequently be heard to assert that the notice was premature.

Judges:

Donaldson J

Citations:

[1978] 1 Lloyds Rep 19

Jurisdiction:

England and Wales

Cited by:

Appeal from – The Shackleford CA 2-Jan-1978
The Notice of Readiness was to discharge at the port of Constanza and was required ‘vessel also having been entered at the Customs House and the laydays will then commence on the next business day, whether in berth or not, whether in port or not, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.277765

Bremer Handelsgesellschaft v Vanden Avenne-Izegem: HL 1978

The House considered a contractual provision which provided for the cancellation of a contract for the sale of soya beans on the happening of various events
Held: Lord Wilberforce said that there were three factors that determined whether a notice provision was a condition precedent: (i) the form of the clause itself; (ii) the relation of the clause to the contract as a whole; and (iii) general considerations of law; and ‘As to (i) the clause is not framed as a condition precedent. The ‘cancellation’ effected by the first sentence is not expressed to be conditional upon the second sentence being complied with: it operates automatically upon the relevant event. Learned Counsel for the buyers invited your Lordships to read cl.21 as if the first sentence were linked with the second by such words as ‘provided that’ – an argument which must surely support the view that without such words, the second sentence does not attain condition status. Moreover, the generality of the words ‘without delay’ tells against the buyer’s contention. If a condition were intended a definite time limit would be more likely to be set. Then, as to (ii), provisions elsewhere in the contract . . suggest that the second sentence is not intended as a condition. (iii) Automatic and invariable treatment of a clause such as this runs counter to the approach, which modern authorities recognise, of treating such a provision as having the force of a condition (giving rise to rescission or invalidity), or of a contractual term (giving rise to damages only) according to the nature and gravity of the breach. The clause is then categorised as an innominate term . . In my opinion the clause may vary appropriately and should be regarded as such an intermediate term: to do so would recognise that while in many, possibly most, instances, breach of it can adequately be sanctioned by damages, cases may exist in which, in fairness to the buyer, it would be proper to treat the cancellation as not having effect. On the other hand, always so to treat it may often be unfair to the seller, and unnecessarily rigid.’

Judges:

Lord Wilberforce

Citations:

[1978] 2 Lloyds Rep 109

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: 07 May 2022; Ref: scu.277761

Badische Anilin und Soda Fabrik v Johnson: HL 1898

A manufacturer in Switzerland who sold and delivered in that country to an English trader goods manufactured according to an invention the subject of English letters patent had not thereby infringed the rights of the holder of the patent by using or vending the patent in England. In British patent law a product is not considered to be sold or disposed of in this country unless the title passes to the buyer while the goods are physically present in this jurisdiction. All jurisdiction in relation to crime is local.

Judges:

Lord Herschell, Lord Davey

Citations:

[1898] AC 200

Jurisdiction:

England and Wales

Cited by:

Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Lists of cited by and citing cases may be incomplete.

Contract, Intellectual Property, Crime

Updated: 07 May 2022; Ref: scu.273183

Holwell Securities Ltd v Hughes: 1973

The court considered how the postal rule applied to the acceptance of an offer contained in an option. The option was to be exercised ‘by notice in writing to’ the grantor within the stipulated time.
Held: The exercise of the option was effective only when it was communicated to the grantor.

Judges:

Templeman J

Citations:

[1973] 1 WLR 757

Jurisdiction:

England and Wales

Cited by:

Appeal from – Holwell Securities Ltd v Hughes CA 5-Nov-1973
An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by . .
Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.276449

Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA (The Pegase): 1981

Robert Goff J set out the limits of the kinds of losses for which a reasonable person would consider himself responsible: ‘The test appears to be: have the facts in question come to the defendant’s knowledge in such circumstances that a reasonable person in the shoes of the defendant would, if he had considered the matter at the time of making the contract, have contemplated that, in the event of a breach by him, such facts were to be taken into account when considering his responsibility for loss suffered by the plaintiff as a result of such breach.’

Judges:

Robert Goff J

Citations:

[1981] Lloyd’s Rep 175

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 07 May 2022; Ref: scu.270783

Cowey v Liberian Operations Ltd: 1966

A unilateral notification by one party to the other, in the absence of agreement, cannot constitute a variation of a contract.

Citations:

[1966] 2 Lloyd’s Reps 45

Jurisdiction:

England and Wales

Cited by:

Cited – T Comedy (Uk) Ltd v Easy Managed Transport Ltd ComC 28-Mar-2007
The hauliers had exercised a lien over the goods it was carrying, releasing them only when provsion was made for payment. The claimants now sought damages for the exercise of the lien which it said was unlawful. The claimant issued a contract, but . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.268788

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 further to hold that, even if the purchaser had been at fault, section 49(2) was wide enough to enable the court to grant relief, giving a broad range of action.
Megarry J said: ‘In its 50 years of life, this section has remained remarkably quiescent. There are few authorities on it. From Charles Hunt Limited v Balmer, Finkielkraut v Monohan and James Macara Ltd. v Barclay, it appears, as one might expect, that the jurisdiction is discretionary and that it is to be exercised where justice requires it, but it will not be exercised so as to deprive a purchaser of the deposit which he is legally entitled to recover. This sub-section is essentially one that is available for use in mitigation of the vendor’s right at law to forfeit the deposit: see Williams’ Contract of Sale of Land (1930), pp. xv.94. Mr Lightman, basing himself mainly on Galbraith v Mitchenhall Estates Ltd, and the authorities there cited, contended that the jurisdiction under section 49(2) should only be exercised in favour of one party if there was unconscionable conduct by the other, but I do not think that what is appropriate in relation to any alleged equity of restitution provides any reliable touchstone for the exercise of the statutory jurisdiction conferred by section 49(2). That jurisdiction is, I think, exercisable on wider grounds than that, including a general consideration of the conduct of the parties (and especially the applicant), the gravity of the matters in question and the amounts at stake: see Shiloh Spinners Ltd v Harding which, though on a quite different point, provides a helpful analogy. The jurisdiction is, of course, statutory and is not the product of equity, but its discretionary character in relation to deposits on the sale of land makes it at least akin to equitable relief against forfeiture. A purchaser who does not claim rescission or is unable to establish a sufficient case for it may nevertheless recover his deposit by suing for its return and making out a proper case under the subsection.’

Judges:

Megarry J VC

Citations:

[1975] 30 P and CR 328

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Cited by:

Applied – Universal Corporation v Five Ways Properties Limited CA 1978
The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds due to a change in the exchange control regulations. There was no attempt to exclude . .
Cited – Aribisala v St James Homes (Grosvenor Dock) Ltd ChD 12-Jun-2007
The parties had agreed in a contract for the sale and purchase of land to exclude the application of section 49(2). The buyer had failed to comply with a notice to complete.
Held: The parties cannot contract out of section 49(2). The . .
Cited – 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. . .
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: 07 May 2022; Ref: scu.267649

MS Fashions Ltd v Bank of Credit and Commerce International SA: CA 1993

BCCI contracted with three companies and their directors or others as sureties. Money was deposited with BCCI as security from the companies. Some agreements described the sureties as ‘principal debtor’ or contained personal covenants by them as ‘principal debtor’.
One document headed ‘cash deposit security terms – third party’ entitled BCCI, at any time and without notice, to set off monies deposited by Mr Ahmed against amounts due from the companies, and he also agreed to guarantee to pay to BCCI upon written demand all liabilities of the companies to BCCI and further declared ‘as a separate and independent obligation hereunder’ that the company’s liabilities ‘shall be recoverable by you from me as principal debtor and/or by way of indemnity and shall be repaid by me on demand made in writing by you or on your behalf whether or not demand has been made on the [company]’.
In a letter of charge, Mr Amir charged his credit balances agreeing that ‘the liabilities hereunder shall be as that of principal debtor’. He did not give an express personal covenant to be liable to BCCI but the letter was taken to have that effect in an amount not more than the amount of his deposits. The court was asked whether BCCI’s liability on the sureties’ deposits should be set off under rule 4.90 of the Insolvency Rules against their liabilities to BCCI as sureties. There could be no set-off involving a contingent due debt to a company in liquidation unless and until the contingency occurred. BCCI argued that the sureties’ liabilities were contingent on demands made by it, which it might well never make.
Held: Affirming the decision at first instance, the court held that as the sureties had covenanted to pay as principal debtors, a demand was unnecessary and there should therefore be a set-off under rule 4.10. A demand is not necessary under a guarantee to make the liability under immediately payable.
In the context of a winding up, the relevant date for assessing the mutuality of credits and debts in insolvency set-off is the date of the winding up order.
Dillon LJ recorded BCCI’s acceptance that the liabilities of the companies to BCCI were at all times presently enforceable without any need for a demand before the issue of a writ, even if expressed to be repayable on demand. He referred to the line of authorities leading up to Bradford Old Bank v Sutcliffe, and said: ‘The effect of that must be to dispense with any need for a demand in the case of Mr Amir since he has made the companies’ debts to BCCI his own debts and thus immediately payable out of the deposit without demand. In the case of Mr Ahmed there must be immediate liability even though the word ‘demand’ was used, because he accepted liability as a principal debtor and his deposit can be appropriated without further notice.’

Judges:

Hoffmann LJ

Citations:

[1993] Ch 425, [1993] 3 WLR 220, [1993] 3 All ER 769

Jurisdiction:

England and Wales

Citing:

Cited – Bradford Old Bank Ltd v Sutcliffe CA 1918
A demand for payment is not necessary in order to make a present debt immediately payable, even if it is expressed to be payable on demand, unless it is a collateral debt. . .

Cited by:

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

Contract, Insolvency

Updated: 07 May 2022; Ref: scu.267644

Bradford v Williams: 1872

The ship’s captain refused to load at the place stipulated for the month of September 1871, but was willing to load at a port he was permitted to select prior to that month.
Held: The breach of the charter-party by the shipowner went to the root of the contract and the charterer was right in his refusal to load. Baron Martin said: ‘Contracts are so various in their terms that it is really impossible to argue from the letter of one to the letter of another. All we can do is to apply the spirit of the law to the facts of each particular case. Now I think the words ‘conditions precedent’ unfortunate. The real question, apart from all technical expressions, is what in each instance is the substance of the contract’.

Judges:

Baron Martin

Citations:

(1872) 7 Exch 259

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 07 May 2022; Ref: scu.266187

Morris v CW Martin Ltd: CA 1966

Diplock LJ said: ‘The legal relationship of bailor and bailee of a chattel can exist independently of any contract.’ Where goods are lost or damaged, the burden is on the bailee (or sub-bailee) to ‘show – that the loss or damage caused without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.’

Judges:

Diplock LJ, Lord Denning MR

Citations:

[1966] 1 QB 716

Jurisdiction:

England and Wales

Cited by:

Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Piper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 07 May 2022; Ref: scu.264646

Prosper Homes Ltd v Hambros Bank Executor and Trustee Co Ltd: 1980

The court considered whether a contract had been validly rescinded. The validity of a completion notice was challenged on the ground that the vendors were not ready, able and willing to complete the sale when the notice was served because they were in breach of their fiduciary obligation to look after the subject property. Without informing the purchasers, the vendors had permitted a change in the lessee and user of part of the property.
Held: It was completely uncommercial to require a vendor to be considered unable or unwilling or unready to complete merely because he may have failed in some respect to carry out his duty between contract and completion in looking after the property. That default would sound in damages.
Browne-Wilkinson J said: ‘the fact that a vendor may have failed in some respect to carry out his duty between contract and completion in looking after the property does not mean that he is unable or unwilling or unready to complete . . If any damage has occurred in the interim the vendor would have to make it good in damages. It does not prevent a completion of the contract.’

Judges:

Browne-Wilkinson J

Citations:

(1980) 39 P and CR 395, (1979) 39 P and CR 395

Jurisdiction:

England and Wales

Cited by:

Cited – Eyestorm Ltd v Hoptonacre Homes Ltd CA 19-Dec-2007
The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 07 May 2022; Ref: scu.263182

CHT Ltd v Ward: 1965

Davies LJ discussed whether a casino gave good consideration when supplying gambling chips to customers: ‘People do not game in order to win chips; they game in order to win money. The chips are not money or money’s worth; they are mere counters or symbols used for the convenience of all concerned in the gaming.’

Judges:

Davies LJ

Citations:

[1965] 2 QB 63

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 07 May 2022; Ref: scu.259440

Lyus v Prowsa Developments Ltd: ChD 1982

The plaintiffs contracted to buy a plot of registered land with a house to be built on it. The developer had charged the estate as a whole to a bank to secure the development finance. The developer became insolvent and the bank sold the estate as mortgagee to the first defendant ‘subject to and with the benefit of’ the plaintiff’s contract. Three months later the first defendant resold the estate to the second defendant subject to the plaintiffs’ contract so far if at all as it might be enforceable as against the first defendant. The transfer to the second defendant, which was duly registered, did not refer to the plaintiffs’ contract. It was common ground that if the provision in the contract for the sale by the bank to the first defendant was adequate to impose a constructive trust on the first defendant then the effect of the provision in the contract for sale by the first defendant to the second defendant was to impose a similar trust on him.
Held: Both of them had that effect.
Dillon J said: ‘Bearing in mind that there is no basis on which it could be suggested that the bank could be under any obligation to the plaintiffs to complete the house on Plot 29 for them, and bearing in mind the first defendant’s solicitors’ letter to Messrs Strutt and Parker, to which I have referred, I conclude that clause 11 was not inserted in the agreement of October 18, 1979, solely for the protection of the bank, like clause 7 of that agreement which sets out other matters subject to which the property was sold, and I conclude that it was a stipulation of the bargain between the bank and the first defendant that the first defendant would give effect in relation to Plot 29 to the contract which had been made between the vendor company and the plaintiffs.’
He went on to discuss the effect of the 1925 Act: ‘It seems to me that the fraud on the part of the defendants in the present case lies not just on relying on the legal rights conferred by an Act of Parliament, but in the first defendant reneging on a positive stipulation in favour of the plaintiffs in the bargain under which the first defendant acquired the land. That makes, as it seems to me, all the difference. It has long since been held for instance, in Rochefoucauld v. Boustead [1897] 1 Ch. 196, that the provisions of the Statute of Frauds 1677 (29 Car. 2 c.3), now incorporated in certain sections of the Law of Property Act 1925, cannot be used as an instrument of fraud, and that it is fraud for a person to whom land is agreed to be conveyed as trustee for another to deny the trust and relying on the terms of the statute to claim the land for himself. Rochefoucauld v. Boustead was one of the authorities on which the judgment in Bannister v. Bannister [1948] 2 All E.R. 133 was founded.
It seems to me that the same considerations are applicable in relation to the Land Registration Act 1925. If for instance, the agreement of October 18, 1979, between the bank and the first defendant had expressly stated that the first defendant would hold Plot 29 upon trust to give effect for the benefit of the plaintiffs to the plaintiffs’ agreement with the vendor company, it would be difficult to say that the express trust was over-reached and rendered nugatory by the Land Registration Act 1925. The Land Registration Act 1925 does not, therefore, effect the conclusion which I would otherwise had reached in reliance on Bannister v. Bannister and the judgment of Lord Denning M.R. in Binions v. Evans [1972] Ch. 359 had Plot 29 been unregistered land.’

Judges:

Dillon J

Citations:

[1982] 1 WLR 1044, [1982] 2 All ER 953

Statutes:

Land Registration Act 1925

Jurisdiction:

England and Wales

Cited by:

Approved – Ashburn Anstalt v Arnold (2) CA 25-Feb-1988
Various leases of properties had been granted. Legal and General occupied the property under an arrangement under which they paid no rent. The landlord sought possession, saying that the agreements were licences not tenancies because of the absence . .
Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Cited – HSBC Bank Plc v Dyche and Another ChD 18-Nov-2009
The parties disputed the claimed beneficial interest of the second defendant. The second defendant (C) said that it had been purchased for him by the first defendant (D) from C’s trustee in bankruptcy, and was thereafter held in trust for him on the . .
Cited – Chaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .
Lists of cited by and citing cases may be incomplete.

Registered Land, Contract

Updated: 07 May 2022; Ref: scu.259721

Williams v Moss Empires Ltd: ChD 1915

The court considered what was necessary to achieve a variation of a contract. Shearman J: ‘The principle . . is that where there is alleged to have been a variation of a written contract by a new parol contract, which incorporates some of the terms in the old contract, the new contract must be looked at in its entirety, and if the terms of the new contract when thus considered are such that by reason of the Statute of Frauds it cannot be given in evidence unless in writing, then being an unenforceable contract it cannot operate to effect a variation of the original contract, whenever parties vary a material term of an existing contract they are in effect entering into a new contract, the terms of which must be looked at in their entirety, and if the new contract is one which is required to be in writing but is not in writing, then it must be wholly disregarded and the parties are relegated to their rights under the original contract.’

Judges:

Shearman J

Citations:

[1915] 3 KB 242

Jurisdiction:

England and Wales

Cited by:

Approved – Morris v Baron and Co HL 1918
The House drew a distinction between a variation of a contract required to be evidenced in writing, and the rescission (or discharge) of such a contract. The former was itself required to be evidenced in writing; the latter was not.
Lord . .
Cited – H L Estates Limited, Wynford Newman Dore v Parker-Lake Homes Limited ChD 20-Mar-2003
. .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.252313

Charrington and Co Ltd v Wooler: HL 1914

The court is entitled to know the surrounding circumstances which prevailed when the contract was made. A contract is not to be construed in a vacuum. The term ‘market’ did not have a ‘fixed legal significance’ .
Lord Dunedin said: ‘in order to construe a contract the court is always entitled to be so far instructed by evidence as to be able to place itself in thought in the same position as the parties to the contract were placed, in fact, when they made it – or, as it is sometimes phrased, to be informed as to the surrounding circumstances.’
Lord Kinnear, discussing the meaning of the expression ‘fair market price’, stated: ‘Words of this kind must vary in their signification with the particular objects to which the language is directed ; and it follows that a contract about a market price cannot be correctly interpreted or applied without reference to the facts to which the contract relates . . Evidence is not admissible to put a peculiar meaning upon plain and unambiguous words. But it may be necessary to prove the relation of the document to the facts; and I take to be sound doctrine that for this purpose evidence may be given to prove any fact to which it refers, or may probably refer, or to identify any person or thing mentioned in it’.

Judges:

Lord Dunedin, Lord Kinnear

Citations:

[1914] AC 71

Jurisdiction:

England and Wales

Cited by:

Cited – Scottish Power Plc v Britoil (Exploration) Limited CA 18-Nov-1997
Five contracts existed regarding sale of natural gas from a field in the North Sea. The parties disputed whether the terms prevented the sale of gas to others.
Held: ‘On the language of the contract, the Sellers are not entitled to sell gas to . .
Cited – Norwich City Council v Marshall LT 23-Oct-2008
LT LANDLORD AND TENANT – service charges – liability – whether lessee liable for management costs – held lessee liable for costs incurred in providing specified services under lease but not otherwise – Landlord . .
Explained – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Islam, Regina v HL 10-Jun-2009
The defendant appealed against a confiscation order saying that it should not have been set at values which reflected the black market value of the drugs he had imported.
Held: The appeal failed. The court could take account of the illegal . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.251064

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. Unaware of this, S paid what C had failed to pay, and claimed that amount from C’s estate after his death. The defendant sought to avoid liability because of the non-compliance with the 1927 Act, arguing against S that C’s implicit request to him was not ‘Please pay if I do not’ but rather ‘Please pay whatever sum, if any, I am liable to pay under the contract, but do not pay’.
Held: The argument was rejected: ‘the simple implication which arises here is a request by [C] to pay if he, [C], does not pay’.

Judges:

Greene MR

Citations:

[1938] Ch 13

Statutes:

Moneylenders Act 1927

Jurisdiction:

England and Wales

Citing:

Helpful – 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 . .
Distinguished – Sleigh v Sleigh 1850
The court considered a claim for an indemnity under a bill of exchange which was said to be unenforceable. . .

Cited by:

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: 07 May 2022; Ref: scu.249880

Overseas Union v AA Mutual International Insurance Co Ltd: 1988

Evans J said that there was a broad distinction between clauses which referred ‘only those disputes which may arise regarding the rights and obligations which are created by the contract itself’ and those which ‘show an intention to refer some wider class or classes of disputes.’ The former may be said to arise ‘under’ the contract while the latter would arise ‘in relation to’ or ‘in connection with’ the contract. If a contract is invalid, so is any arbitration clause included within it. This rule ‘owes as much to logic as it does to authority’.

Judges:

Evans J

Citations:

[1988] 2 Lloyds Rep 62

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.
Doubted – Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd 1993
The Court said that older (pre Heyman v Darwins Ltd) authorities about the width of arbitration clauses had to be approached with some care and that the words ‘arising from the contract’ have almost invariably been treated as ‘words of very wide . .
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

Updated: 07 May 2022; Ref: scu.248223

Turner v Reeve: 1901

Save in exceptional circumstances, the provider of a service is entitled to be paid.

Citations:

(1901) TLR 592

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 07 May 2022; Ref: scu.245317

Legione v Hateley: 1982

(High Court of Australia) Purchasers of land were put on notice that unless they paid the price by 10th August the contract of sale would be rescinded. On 9th August the purchasers’ solicitor telephoned the vendor’s solicitors and spoke to the secretary of the partner in the firm who was handling the matter asking for a week’s extension of time. The secretary said, ‘I think that’ll be alright, but I’ll have to get instructions’. The question was whether that conversation could give rise to an estoppel.
Held: (Mason J. and Dean J) ‘Plainly that statement could not be treated as an agreement or representation that the vendors would extend the time for settlement until 17th August 1979. Nor can that statement properly be seen as containing any representation that, pending communication of instructions, the purchasers could, with impunity, disregard the time allowed for settlement by the notice of rescission. To the contrary, Miss Williams’ statement that she thought it would be alright but would have to get instructions intimated that she was not in a position to agree to what was, on a fair interpretation of Mr Gardiner’s account of the conversation, being put to her as a fait accompli.’ (Gibbs CJ and Murphy J) ‘But when Miss Williams said she thought it would be alright, and that she would have to get instructions, she must have meant, and the purchasers’ solicitors were entitled to believe, that the position was being left in abeyance until the instructions were received.’
Mason and Deane JJ defined a penalty: ‘A penalty, as its name suggests, is in the nature of a punishment for non-observance of a contractual stipulation; it consists of the imposition of an additional or different liability upon breach of the contractual stipulation’

Judges:

Mason J and Dean J, Gibbs CJ and Murphy J

Citations:

[1982-1983] 152 CLR 406

Jurisdiction:

Australia

Citing:

Cited – In re Dagenham (Thames) Dock Co; Ex parte Hulse CA 1873
The Court of Appeal in chancery heard an appeal from the Master of the Rolls from his refusal of the Master of the Rolls to make a declaration in the winding up of the purchaser company. The purchaser had sought a direction that if the balance of . .

Cited by:

Cited – Northstar Land Limited v Maitland Brooks Jacqueline Brooks CA 14-Jun-2006
The parties’ solicitors were to complete the sale and purchase of land. The purchaser asked for an extension of time beyond the appointed hour to complete. The vendor’s solicitor responded that he would take his client’s instructions. The purchaser . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 07 May 2022; Ref: scu.242527

Chadwick v Clarke: CCC 1845

The plaintiff and defendant were directors of an insurance company. The board resolved to rent a house from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to let the house to the directors personally. Mr Chadwick then sued for one year’s use and occupation and sought to rely on the memorandum. Mr Clarke objected that it was inadmissible, because it had not been stamped. The objection succeeded, and Mr Chadwick was non-suited.
Held: The Court of Common Pleas upheld the objection. A provision in the Stamp Act which required the stamping of: ‘any agreement, or any minute or memorandum of an agreement, made in England, under hand only, or made in Scotland, without any clause of registration.’ Coltman J: ‘One argument that has been urged on the part of the plaintiff is that no document can require a stamp unless it be signed, the words of the stamp act imposing a duty upon ‘any agreement, or any memorandum of an agreement, made in England, under hand only.’ It appears to me, however, that that is not the meaning of the statute, but that the legislature, in using that expression, merely intended to denote instruments under hand only – that is, not under seal, – in opposition to instruments under seal. The words that follow, ‘or made in Scotland, without any clause of registration’ shew this to be the true construction – an instrument with a clause of registration, in that country, having the same force as an instrument under seal with us.’

Judges:

Coltman J, Tindal CJ

Citations:

(1845) 1 CB 700

Cited by:

Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.244447

Reardon Smith Line Ltd v Minister of Agriculture, Fisheries and Food: HL 1963

Lord Devlin said: ‘If I employ a builder to repair my dwelling-house and he agrees to complete the work within six days or pay a penalty, that does not mean that he can keep me awake by working from midnight to midnight in order to finish the job. He can only work such hours as are reasonable or customary.’

Judges:

Lord Devlin

Citations:

[1963] AC 691, [1963] 1 Lloyds Rep 12

Jurisdiction:

England and Wales

Cited by:

Cited – Northstar Land Limited v Maitland Brooks Jacqueline Brooks CA 14-Jun-2006
The parties’ solicitors were to complete the sale and purchase of land. The purchaser asked for an extension of time beyond the appointed hour to complete. The vendor’s solicitor responded that he would take his client’s instructions. The purchaser . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.242528

Hydro Electric Commission of Nepean v Ontario Hydro: 1982

(Supreme Court of Canada) There is a head of public policy which recognises the need to preserve the validity of compromises freely entered into with advice. The court advocated the application of equitable principles for both mistake of fact and mistake of law: ‘It would be best to abolish the mistake of law rule, place mistakes of law and of fact on an equal footing, and recognise that with mistakes of law the principle of conscious ignorance or conscious assumption of risk will often prevent relief . . ‘ (Dixon J dissenting)

Judges:

Dickson J

Citations:

(1982) 132 DLR (3d) 193

Jurisdiction:

Canada

Contract, Equity

Updated: 07 May 2022; Ref: scu.241335

Porter v National Union of Journalists: HL 1980

The House was asked to construe the rules of the defendant organisation. Lord Diplock said: ‘I turn to the interpretation of the relevant rules, bearing in mind that their purpose is to inform the members of the NUJ of what rights they acquire and obligations they assume vis-a-vis the union and their fellow members, by becoming and remaining members of it. The readership to which the rules are addressed consists of ordinary working journalists, not judges or lawyers versed in the semantic technicalities of statutory draftsmanship.’

Judges:

Lord Diplock

Citations:

[1980] IRLR 404

Jurisdiction:

England and Wales

Cited by:

Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 07 May 2022; Ref: scu.238597

Mercer v Liverpool, St Helen’s and South Lancashire Railway: HL 1904

Citations:

[1904] AC 461

Jurisdiction:

England and Wales

Citing:

Affirmed – Mercer v Liverpool St Helens and South Lancashire Railway 1903
Stirling J: ‘Now at law a contract for the sale of land creates merely a personal obligation between the vendor and purchaser and does not bind the land; in equity such a contract binds the land and that not only as against the vendor, but also as . .

Cited by:

Cited – Rhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 07 May 2022; Ref: scu.238204

Lee v Showmens Guild of Great Britain: CA 1952

Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
Denning LJ said: ‘The jurisdiction of a domestic tribunal, such as the committee of the Showmen’s Guild, must be founded on a contract, express or implied. Outside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it.’ and
‘I see no reason why the powers of the court to intervene should be any less in the case of domestic tribunals. In each case it is a question of interpretation. In one of a statute, in the other of the rules, to see whether the Tribunal has observed the law. In the case of statutory tribunals, the injured party has a remedy by certiorari, and also a remedy by declaration and injunction. The remedy by certiorari does not lie to a domestic tribunal but the remedy by declaration and injunction does lie; and it can be as effective as, if not more effective than certiorari. It is, indeed, more effective, because it is not subject to the limitation that the error must appear on the face of the record.’ and
‘The committee cannot extend their jurisdiction by giving a wrong construction to the contract . . no matter how honest they may be. They have only such jurisdiction as the contract on its true interpretation confers on them, not what they think it confers. The scope of their jurisdiction is a matter of the courts.’ and
People have a right, unless expressly or impliedly debarred, to insist for free access to the courts of general jurisdiction of the state: ‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’
Romer LJ said: ‘The proper tribunals for the determination of legal disputes in this country are the courts, and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the task’

Judges:

Denning LJ, Somervell LJ, Romer LJ

Citations:

[1952] 2 QB 329, [1952] 1 All ER 1175

Jurisdiction:

England and Wales

Cited by:

Approved – Faramus v Film Artistes’ Association HL 1964
Parties to a contract may be bound to act in it according to the rules of natural justice. . .
Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
Cited – Regina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA 12-May-1993
The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
Cited – Foster v McNicol and Another QBD 28-Jul-2016
Incumbent Labour leader did not need nominations
The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard . .
Cited – Charles Stanley and Co Ltd v Adams QBD 19-Jul-2013
The claimant stock broking firm sought to recover its uninsured losses after having paid out for what was said to have been negligent advice by the respondent, a self-employed broker working for them.
Held: The power to recover such losses . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Company, Contract

Updated: 07 May 2022; Ref: scu.228474