Category: Contract

D O Ferguson and Associates v M Sohl: CA 1992

A building contract was repudiated by the builders at a time when the works had been partly completed. The contract price was approximately andpound;32,000. At the time when the builders abandoned the site they had been paid over andpound;26,000 and the value of work done by them was about andpound;22,000.
Held: The owner was entitled to claim in restitution for the sum of andpound;4,673, representing the amount by which the sums paid to the builders exceeded the value of the work done. The builders had objected that there had not been a total failure of consideration under the contract, since most of the building work had been done, but the court held that there had been a total failure of consideration for the amount by which the builders had been overpaid.

Citations:

(1992) 62 BLR 199

Jurisdiction:

England and Wales

Cited by:

Cited – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 04 May 2022; Ref: scu.526733

Sealace Shipping Co Ltd v Oceanvoice Ltd, The Alecos M: CA 1991

The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for secondhand propellers. So the only way of providing a spare propeller would have been to commission the manufacture of a new propeller at great expense. The arbitrator had held that this would be unreasonable. Instead, he awarded the scrap value of the propeller, since that was all the buyer had actually lost by reason of the seller’s breach.
Held: The arbitrator’s decision was upheld
Neill LJ said: ‘I can only read his award as meaning that he asked the question: what did these buyers really suffer as a result of the non-delivery of this spare propeller with this vessel? And he gave the answer: they lost its scrap value which in the circumstances was the only value which it had for them.’

Judges:

Neill LJ

Citations:

[1991] 1 Lloyd’s Rep 120

Cited by:

Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 04 May 2022; Ref: scu.526104

Ferrier v Stewart: 24 Jun 1912

High Court of Australia – The plaintiffs were the surviving members of a firm, owed money by the defendant’s husband confirmed promissory notes. The firm extend his credit against new promissory notes, provided that they were indorsed by the defendant also so as to make her liable on the notes. This she agreed to do. In order to effect a contract between herself and the firm, the notes had formally to be indorsed by the firm to her before she put her indorsement on them. In fact, the notes were given to her, for her indorsement, before the firm’s indorsement appeared on them and she placed her indorsement on them as if they had already been indorsed to her. The notes were thereafter indorsed by the firm, so that on their face they appeared to have been indorsed in the correct chronological sequence, contrary to the facts as both parties knew them to be. The defendant subsequently refused to pay the bills on the ground that they had not been indorsed to her at the time of her signature.
Held: This defence failed. The parties had adopted a conventional basis for the transaction. They impliedly agreed that, when the promissory note should be completed by other indorsements, it should be assumed to have been issued and indorsed by the parties in due order. From this assumption the indorsee was not permitted to depart, although all parties had been aware of the actual state of affairs.

Judges:

Isaacs J

Citations:

[1912] 15 CLR 32, [1912] HCA 47

Links:

Austlii

Cited by:

Cited – Prime Sight Ltd v Lavarello PC 9-Jul-2013
(Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Estoppel, Contract

Updated: 04 May 2022; Ref: scu.519655

Day v McLea: CA 1889

The fact alone that a person receives and accepts a cheque offered in full and final settlement of the person’s claim for a higher sum does not create an accord and satisfaction. There is only an accord if there is an agreement whereby the person was prepared to accept the sum sent in full satisfaction of all claims, or if the person acts in such a way as to induce the payer to think that the money is taken in satisfaction of the claim and to cause the person to act upon that view.
Bowen LJ said: ‘If a person sends a sum of money on the terms that it is to be taken if at all, in satisfaction of a larger claim; if the money is kept, it is a question of fact as to the terms upon which it is so kept. The accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If accord is a question of agreement, there must be either two minds agreeing or one of the two persons acting in such a way as to induce the other to think that the money is taken satisfaction of the claim, and according to act upon that view’.
Lord Esher MR said: ‘The question whether there has been an accord and satisfaction is one of fact’

Judges:

Bowen LJ, Lord Esher MR

Citations:

(1889) 22 QBD 610

Cited by:

Cited – Bracken and Another v Billinghurst TCC 10-Jun-2003
The claimants claimed the sum due under an adjudication award of andpound;43,984.66. The claimants had originallyy told the defendant they would take andpound;6,000 in settlement of the award. They were sent a cheque for andpound;5,000 expressed to . .
Cited – Stour Valley Builders (a Firm) v Stuart and Another CA 21-Dec-1992
The plaintiff builders had invoiced and pursued a revised account of andpound;10,163 after the defendants had disputed a number of items. The defendants ultimately offered a cheque in the sum of andpound;8,471 in full and final settlement of all . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 May 2022; Ref: scu.521151

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd: 1987

(High Court of Australia) The court consdered the situation where a surety was called after alteration of the contract secured: ‘to hold the surety to its bargain, the creditor must show that the nature of the alteration can be beneficial to the surety only or that by its nature it cannot in any circumstances increase the surety’s risk.’

Judges:

Mason ACJ, Wilson, Brennan and Dawson JJ

Citations:

(1987) 162 CLR 54

Cited by:

Cited – Topland Portfolio No 1 Ltd v Smiths News Trading Ltd CA 21-Jan-2014
The claimant landlord sought to recover arrears of its tenant’s rent after the tenant’s insolvency from the defendant under the defendant’s guarantee of the rent. The defendant had argued successfully at first instance that the guarantee had been . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Updated: 04 May 2022; Ref: scu.523149

Denmark Productions Ltd v Boscobel Productions Ltd: CA 1969

Where the award of damages at law may be inadequate, the court may order an account to be taken to determine precisely what is owing by one party to the other.
Salmon LJ doubted whether an unaccepted repudiation could bring an end to a contract of employment in law ‘although no doubt in practice it does’. In law, he thought that the position was (i) that the contract continued in being, (ii) that it would not, however, be specifically enforced because the employee had not worked and had not therefore earned his remuneration; (iii) that the employee’s only remedy was to sue for his lost wages as damages for the employer’s breach in preventing him from earning them (presumably from time to time as they would have fallen due); and (iv) that the only thing that prevented the employee from sitting idle for the rest of the contractual term and collecting damages equal to his lost wages was the condition that he should have taken reasonable steps to mitigate his loss by finding alternative employment.
He descibed the docrine of frustration, saying: ‘This was a doctrine evolved by the Courts to meet the case in which a contract became impossible through some supervening event, not reasonably foreseeable when the contract was made and for which neither contracting party was in any way responsible’.
Sachs LJ agreed, observing that ‘In such cases it is the range of remedies that is limited, not the right to elect.’
Winn LJ said: ‘Where A and B are parties to an executory contract, if A intimates by word or conduct that he no longer intends, or is unable, to perform it, or to perform it in a particular manner, he is, in effect, making an offer to B to treat the contract as dissolved or varied so far as it relates to the future. If B elects to treat the contract as thereby repudiated, he is deemed, according to the language of many decided cases, to ‘accept the repudiation’ and is thereupon entitled (a) to sue for damages in respect of any earlier breach committed by A and for damages in respect of the repudiation, (b) to refrain from himself performing the contract any further.’

Judges:

Salmon, Sachs, Winn LJJ

Citations:

[1969] 1 QB 699

Cited by:

Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 04 May 2022; Ref: scu.470541

Regazzoni v KC Sethia (1994) Ltd: CA 1956

The rule against enforcing foreign political laws did not require it to enforce a contract that violated Indian laws against export to South Africa. The court permitted recognition but not enforcement of foreign revenue laws.
Denning LJ said: ‘if two people knowingly agree together to break the laws of a friendly country or to procure someone else to break them or to assist in the doing of it, then they cannot ask this court to give its aid to the enforcement of their agreement.’

Judges:

Parker, Denning LJJ

Citations:

[1956] 2 QB 490, [1956] 2 All ER 487

Jurisdiction:

England and Wales

Cited by:

Cited – Fielding and Platt Ltd v Selim Najjar CA 17-Jan-1969
The plaintiff company had contracted to make and export to the defendant an aluminium extrusion press. The defendant re-assured the plaintiff that it would be lawful for him to import the plant, but asked that the plant be described falsely on the . .
from – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract, International

Updated: 04 May 2022; Ref: scu.464683

Longman v Hill: 1891

The question whether an election to rescind a contract has been validly exercised is always one of fact.

Citations:

(1891) 7 Times Law Reports 639

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

Updated: 04 May 2022; Ref: scu.466394

McAndrew v Prestwick Circuits Ltd: EAT 1988

The claimant was employed at one base under a contract allowing his employers to require him to move to another on reasonable notice. The employers required him to move but at very short notice. He refused. An impasse was reached and he resigned, treating the attempt to move him as a breach of contract which amounted to a constructive dismissal. The Tribunal accepted that the employer’s breach amounted to a constructive dismissal, but then went on to say that he ought to have accepted that very same employment in mitigation of his loss.
Held: The employee’s appeal succeeded. Applying the general law of contract, an employee cannot be said to have failed to mitigate his loss by refusing the employer’s offer of alternative employment before he is dismissed. They said: ‘We accepted the submissions of Counsel for the Appellant, the employee, that as the dismissal was in our view, clearly on 8 May, conduct before dismissal was not relevant in relation to mitigation of loss. In other words, a refusal to accept work at the other factory could not amount to a failure to mitigate when the contract was subsequently terminated as one of constructive dismissal.’

Judges:

Lord Mayfield

Citations:

[1988] IRLR 514

Cited by:

Cited – F and G Cleaners v Saddington and Others EAT 16-Aug-2012
EAT UNFAIR DISMISSAL – Mitigation of loss
The Claimants worked for Respondent 1 who supplied window cleaning services under contract to a local authority. The contract was subject to a re-tendering process; . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract, Scotland

Updated: 04 May 2022; Ref: scu.463685

A/B Helsingfors Steamship Co Ltd v Rederiaktiebolaget Rex (The White Rose): 1969

A Finnish vessel had been ordered to load in Duluth, Minnesota, where Mr de Chambeau, an employee of charterers’ stevedores was injured while on board. He had left his proper place for purposes unconnected with his work, but owners were liable to him under Minnesota law on the ground that the part of the ship where he had gone lacked fencing. The owners were, it seems, in breach of Finnish law in this respect, but that was expressly disregarded as being irrelevant. Donaldson J nonetheless agreed with the umpire that owners’ indemnity claim failed because ‘what connected the accident with, and gave rise to, a potential liability and an actual loss was the provisions of Minnesota law’. There was lacking ‘the necessary causal connection between the order to load and the loss’
Donaldson J said of clause 13 in the Baltime charter: ‘The indemnity afforded by this clause is clearly wide enough to cover loss incurred by reasonable settlement.’

Judges:

Donaldson J

Citations:

[1969] 2 Lloyds Rep 52, [1969] 1 WLR 1098

Cited by:

Cited – Total Transport Corporation v Arcadia Petroleum Ltd (‘the Eurus’) CA 18-Nov-1997
Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .
Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 04 May 2022; Ref: scu.462283

In re Johns, Worrell v Johns: 1928

A mother and son agreed that the sum repayable by the son in respect of periodic loans made by the mother (which could not exceed andpound;650, and might be as little as andpound;10, in all) was to increase from andpound;650 to andpound;1,650 (plus interest) in the event of the son’s bankruptcy.
Held: The applicable principle was that a ‘person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws’. The agreement was ‘a deliberate device to secure that more money should come to the mother if the son went bankrupt, than would come to her if he did not; and, that being so . . the device is bad’.

Judges:

Tomlin J

Citations:

[1928] Ch 737

Jurisdiction:

England and Wales

Cited by:

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

Insolvency, Contract

Updated: 04 May 2022; Ref: scu.442613

Webster v Bosanquet: PC 1912

(Ceylon) The Board was asked whether a clause in a contract amounted to a penalty: ‘whatever be . . the expression used in the contract in describing the payment, the question must always be whether the construction contended for rendered the agreement unconscionable and extravagant, and one which no Court ought to allow to be enforced.’

Judges:

Lord Mersey

Citations:

[1912] AC 394

Citing:

Applied – Clydebank Engineering Co v Castaneda HL 19-Nov-1904
The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of andpound;500 per week for each . .

Cited by:

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

Contract, Commonwealth

Updated: 04 May 2022; Ref: scu.440839

In Re Jones Will Trusts: ChD 11 Jan 1965

Buckley J said that the words ‘unless the contrary intention applies’ mean ‘unless the contrary appears from any surrounding circumstances which carry conviction to the mind of the court’. He also agreed with the submission ‘that the evidence indicating a contrary intention must be strong’.

Judges:

Buckley J

Citations:

[1965] 1 Ch 1124

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for Justice v Slee EAT 19-Jul-2007
EAT Unfair Dismissal – Constructive dismissal
Maternity Rights and Parental Leave – Sex discrimination
The Claimant was employed as a Magistrates’ Clerk and she brought successful claims to the . .
Lists of cited by and citing cases may be incomplete.

Contract, Trusts

Updated: 04 May 2022; Ref: scu.449977

Scholefield v Temper: 1859

A surety had been released on the strength of a fraud practised by the debtor.
Held: The creditor’s rights against the surety were restored. Not only is a person who has committed the fraud precluded from deriving any benefit under it, but an innocent person is so likewise, unless there has been some consideration moving from himself.
Lord Campbell LC said: ‘I consider it to be an established principle that a person cannot avail himself of what has been obtained by the fraud of another, unless he not only is innocent of the fraud, but has given some valuable consideration.’

Judges:

Lord Campbell LC

Citations:

(1859) 4 De G and J 429, (1859) Johns 155, [1859] EngR 773

Cited by:

Cited – Soutzos v Asombang and Others ChD 21-Jun-2011
The claimant had obtained a freezing order against the defendants. His claim having been dismissed, the court now considered if and what damages should be paid under the cross-undertaking he had given.
Held: Setting out and applying the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 04 May 2022; Ref: scu.441143

Groom v Crocker: 1939

An action by a client against a solicitor alleging negligence in the conduct of the client’s affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he did quite ineffective.
Sir Wilfred Greene MR said: ‘The right given to the insurers is to have control of proceedings in which they and the assured have a common interest – the assured because he is the defendant and the insurers because they are contractually bound to indemnify him. Each is interested in seeing that any judgment to be recovered against the assured shall be for as small a sum as possible. It is the assured upon whom the burden of the judgment will fall if the insurers are insolvent. The effect of the provisions in question is, I think, to give to the insurers the right to decide upon the proper tactics to pursue in the conduct of the action, provided that they do so in what they bona fide consider to be the common interest of themselves and their assured. But the insurers are in my opinion clearly not entitled to allow their judgment as to the best tactics to pursue to be influenced by the desire to obtain for themselves some advantage altogether outside the litigation in question with which the assured has no concern.’

Judges:

Sir Wilfred Greene Mr

Citations:

[1939] 1 KB 194

Jurisdiction:

England and Wales

Cited by:

Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Freakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Professional Negligence

Updated: 04 May 2022; Ref: scu.226985

Stokes v Whicher: 1920

Russell J said: ‘if you can spell out of the document a reference in it to some other transaction, you are at liberty to give evidence as to what that other transaction is, and, if that other transaction contains all the terms and writing, then you get a sufficient memorandum within the statute by reading the two together.’

Judges:

Russell J

Citations:

[1920] 1 Ch 411

Cited by:

Approved – Elias v George Sahely and Co (Barbados) Ltd PC 1982
(Barbados) The parties entered into an oral agreement for the sale of land to the plaintiff. The plaintiff’s solicitor then wrote to the defendant’s solicitor confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.430062

The Suwalki: 1989

Generally speaking a chartering broker has no actual authority to charter a ship: ‘A broker, or even an exclusive broker, is not in the shipping trade regarded as having authority to commit his principals without reference back to them.’

Citations:

[1989] 1 Lloyd’s Rep 511

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.

Transport, Contract

Updated: 02 May 2022; Ref: scu.430072

Hawker v Vickers: 1991

(New Zealand Court of Appeal) The court considered the ability of a party to waive compliance with a condition, saying: ‘there is nothing inconsistent in providing expressly or by necessary implication for unilateral waiver of a condition up to a certain date and thereafter for allowing either party to avoid the contract for non fulfilment of the condition. Such a provision simply recognises the commercial reality that the nature and significance to the parties of a condition in a contract may change over time or at a point in time. If the contract [sic] is fulfilled or waived, the parties then have the certainty of an unconditional contract. If not fulfilled or waived by the nominated date, each is free to end the contract by appropriate notice to the other.’

Citations:

[1991] 1 NZLR 399

Cited by:

Applied – Globe Holdings Ltd v Floratos 1998
(New Zealand Court of Appeal) A block of apartments was sold with possession to be given on ‘the first Friday three months after confirmation’. Special conditions required a sub-divisional consent to be obtained within 60 days of acceptance, and . .
Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Commonwealth

Updated: 02 May 2022; Ref: scu.430313

Globe Holdings Ltd v Floratos: 1998

(New Zealand Court of Appeal) A block of apartments was sold with possession to be given on ‘the first Friday three months after confirmation’. Special conditions required a sub-divisional consent to be obtained within 60 days of acceptance, and that the vendor make one unit available for marketing once the contract became unconditional. There was also a unilateral waiver clause.
Held: The special conditions were for the sole benefit of the purchaser, were severable and could therefore be waived without undermining the agreement. The vendors’ only legitimate interest was in knowing whether the transaction would proceed or not. When the purchaser waived the special conditions, the relevant certainty was provided. Implicitly, the court held that if a benefit was to be found in favour of the purchaser it had to go to the issue of certainty of completion after the waiver. On the court’s analysis, the vendor could not properly claim any relevant benefit in that respect.
Blanchard J said, applying Hawker: ‘The argument against waiver rests upon the desirability of certainty for a vendor from being able immediately to bring the contract to an end, or see it immediately collapse, once the given time has elapsed. But certainty is achieved by a different rule, namely that any waiver must occur on or before the condition date, or at least before the contract is actually brought to an end (if it is not automatically void). It has to be remembered that we are at this point concerned with a situation in which it is to be accepted that there is no substantive benefit to [the vendors]. Therefore, their only legitimate interest is in knowing whether the transaction is to proceed or not. Once the time allowed for the fulfilment of the condition expires they can forthwith give notice of cancellation if they have not already been informed that the sale will go ahead. It matters not to them whether it does so because of fulfilment or because the purchaser elects to proceed anyway. The achieving of certainty is in the vendors’ own hands if there has been no action by the purchaser. If there has been a waiver the transaction proceeds as it would have done if the condition had been satisfied on the date of the waiver . . We conclude therefore that a distinction is to be drawn between the benefit of the substance of the condition and the benefit of the time limit.’

Judges:

Blanchard J

Citations:

[1998] 3 NZLR 331

Citing:

Applied – Hawker v Vickers 1991
(New Zealand Court of Appeal) The court considered the ability of a party to waive compliance with a condition, saying: ‘there is nothing inconsistent in providing expressly or by necessary implication for unilateral waiver of a condition up to a . .

Cited by:

Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Updated: 02 May 2022; Ref: scu.430312

Bournemouth and Boscombe FC Limited v Manchester United FC Limited: CA 21 May 1980

Donaldson LJ said: ‘I have on occasion found it a useful test notionally to write into the contract under consideration a declaratory clause expressing the fact that the parties are not subject to the obligations which would flow from the clause which it is urged should be implied. I think it is useful in this case. We then get a contract reading: ‘It is further agreed that Manchester United Football Club will pay a further sum of andpound;27,770 to Bournemouth and Boscombe Football Club when Edward MacDougall has scored 20 goals in first team competitive football for Manchester United . . provided always that Manchester United shall be under no obligation to afford MacDougall any reasonable opportunity of scoring 20 goals.’ It at once becomes clear that the inclusion of the proviso renders this part of the contract ‘inefficacious, futile and absurd’, to use the words that Lord Salmon used in Liverpool City Council v Irwin [1976] 2 All ER 39 at 50, [1977] AC 239 at 262.’
Brightman LJ, dissenting, said that the position would be different where there had been an allegation and finding of bad faith.

Judges:

Donaldson LJ, Brightman LJ

Citations:

Unreported 21 May 1980, Times 22-May-1980

Citing:

Cited – William Stirling The Younger v Maitland And Boyd 1864
Cockburn CJ stated: ‘I look on the law to be that, if a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of . .
Cited – Shirlaw v Southern Foundries (1926) Ltd HL 1940
Where a party enters into an arrangement which can only take effect by the continuance of an existing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.427737

Feuer Leather Corporation v Frank Jonstone and Sons: 1981

The court considered the requirements for notice in section 28(1). Neill J said: ‘2. the Court is concerned with actual notice and not with constructive notice.
3. In deciding whether a person . . had actual notice:
(a) the Court will apply an objective test and look at all the circumstances;
(b) if by an objective test clear notice was given, liability cannot be avoided by proof merely of the absence of actual knowledge;
(c) a person will be deemed to have had notice of any fact to which it can be shown that he deliberately turned a ‘blind eye’ . . ;
(d) on the other hand the Court will not expect the recipient of goods to scrutinize commercial documents such as delivery notes with great care;
(e) there is no general duty on a buyer of goods in an ordinary commercial transaction to make inquiries as to the right of the seller to dispose of the goods; (f) (whether the circumstances, looked at objectively, constitute notice) must be a matter of fact and degree to be determined in the particular circumstances of the case . .
4. The burden of proving a bona fide purchase for value without notice rests on the person who asserts it.’

Judges:

Neill J

Citations:

(1981) Com LR 251

Statutes:

Sale of Goods Act 1979 28(1)

Cited by:

Cited – Angara Maritime Ltd v Oceanconnect UK Ltd and Another QBD 29-Mar-2010
The court was asked as to the application of Section 25(1) of the Sale of Goods Act 1979 when an unpaid supplier of bunkers to a time charterer claims against the owner of the vessel.
Held: The issue was whether as a matter of fact there was a . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 02 May 2022; Ref: scu.421768

The Span Terza: HL 10 Jan 1984

The parties, suppliers of goods and charterers, disputed the ownership of bunkers at the point of sale.
Held: Lord Diplock said: ‘My Lords I agree with Lord Justice Kerr that cl.3 [which set out that Owners were to pay for bunkers on redelivery] and the latter half of cl.4 [which set out the means of redelivery] deal with the same subject-matter and are confined to it. The latter half of cl.4 deals with the redelivery of the vessel (i.e. its being put once more at the disposal of the shipowners by the charterers) on dropping last outward sea pilot at the port within the redelivery range at the end of the contract period; in casu, about two years, 45 days more/less, from the date of delivery. Clause 3 deals with what is to happen to the bunkers aboard the vessel at the time of that redelivery. I share the view of Lord Justice Kerr that as a matter of construction its express provisions are wholly inapt to apply to termination otherwise that pursuant to cl.4’

Judges:

Lord Diplock

Citations:

[1984] 1 Lloyds Rep 119

Jurisdiction:

England and Wales

Citing:

Appeal from – The Span Terza CA 1982
The term ‘charterer’ in section 21(4) includes ‘time charterer’. . .

Cited by:

Cited – Angara Maritime Ltd v Oceanconnect UK Ltd and Another QBD 29-Mar-2010
The court was asked as to the application of Section 25(1) of the Sale of Goods Act 1979 when an unpaid supplier of bunkers to a time charterer claims against the owner of the vessel.
Held: The issue was whether as a matter of fact there was a . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 02 May 2022; Ref: scu.422376

Attorney-General ex rel. Scotland v Barratt Manchester Ltd: CA 2 Jan 1990

Nicholls LJ discussed the nature and enforcement of agreements under section 106 of the 1990 Act, saying: ‘A section 106 agreement may be enforced against the original covenantor in contract, and against successors in title to the original convenantor by virtue of sub.(2). Enforcement is a matter solely for the local planning authority, and there is no right for the public at large, even through a relator action to bring enforcement proceedings; although the authority’s decision to enforce or not to enforce is amenable to judicial review.’ and
‘In the nature of things, many decisions of local authorities affect members of the public to a greater or lesser extent. These decisions affect the public and, in that loose sense, ‘the public interest.’ This is as much so in planning matters as in many other fields of activity of local authorities, such as education. But, despite this, there is no general ‘public right’ which entitles or enables the court to override a local authority’s decision on a matter which by statute or otherwise has been entrusted to its decision. In exercise of its judicial review jurisdiction, the court is able to ensure that a local authority’s decision has been arrived at properly, in the sense that the decision-making process was duly followed. The court will check that the decision-making body proceeded properly, and applied its collective mind properly to the matters entrusted to its decision. If the decision is flawed, the authority may be compelled to reconsider the matter, and this time to do so properly. But the end result is still a decision by the local authority on the relevant issue, not a decision of the court. All this is trite law, but its importance in the present case lies in noting that the public right for which the Attorney-General contends would have the consequence that a decision by the council on whether or not to enforce the covenant in the 1934 agreement, even if arrived at impeccably, could effectively be overridden, at any rate in some circumstances. If the council decided not to enforce the covenant, nevertheless, if the Attorney-General is correct, the covenant would still be enforceable pursuant to the ‘public right’ to have the covenant complied with.’
Nichols LJ continued: a special type or degree of public interest such as to justify the conclusion that they give rise to a ‘public right’ of enforcement. Mr Price [counsel for the Attorney-General], indeed, disclaimed any contention that all agreements to which section 34 applies, or to which its well-known successor section (s.52 of the 1971 Act) applies, give rise to such a right. He was wise to do so. A proposition that all section 52 agreements, irrespective of their content, create a ‘public right’ would be unsustainable. It would be far too wide.
This compelled the Attorney-General to adopt the position that there is to be found in the provisions of this particular agreement some special feature having the consequence that this agreement, unlike the generality of section 34 or section 52agreements, did create a ‘public right. Mr. Price contended that the special feature was that the land was intended to be preserved permanently as a private open space ‘for the benefit and amenity of the district.’ This is a promising starting point, but the route which Mr. Price was then obliged to negotiate led him into quicksand. He recognised that, notwithstanding the existence of the public right for which he contended, the council had power to vary or release the restrictions in the 1934 agreement, by agreement with the owner of Birtenshaw Farm. (Indeed, this power was exercised in this case. In 1955 the council and the executors of the two Ashworth brothers agreed to modify the user restrictions to enable a school to be built partly on Birtenshaw Farm and partly on Oaks Farm.) The public right, in other words, consisted only of a right to enforce the restrictions in the agreement as subsisting from time to time. Mr. Price contrasted a case (a) where the council had agreed to release or vary the restrictions, with a case (b) where there was no variation or release but the council declined to take steps to enforce the agreement for non-planning reasons: for example, because of a mistaken view of the enforceability of the agreement. He submitted that in the latter case, case (b), there was a residual public right which did not override the council’s right to decide whether to vary or release the restrictions. Nor did it override the council’s planning policies. In case (b) the public had a right to enforce the agreement in default of the council doing so. In such a case the public right would not be inconsistent with any relevant policy of the council.
I cannot accept this. By thus limiting its scope, one is left with a public right defined in terms which cannot stand scrutiny. On this formulation the 1934 agreement generated a right vested in the public to enforce the restrictions if, but only if, the reason for non-enforcement was unrelated to planning considerations: for example, financial constraints, or a mistaken view of the council’s legal rights. I can see no sound basis for concluding that the agreement created a public right of such a curiously circumscribed nature. The agreement either operated to vest a right in the public in respect of the user restrictions, or it did not. If it did, the right must surely have been applicable, at the very least, in all circumstances where the agreement remained in force. But admittedly the right being claimed would not apply if it was for planning reasons that the council decided not to enforce the restrictions.
The difficulties do not end there. There is no practical distinction between a decision of the council not to enforce a restriction and a decision formally to vary or release a restriction. In each case the effect of the decision is the same: non-enforcement. For there to be a public right available in the one case but not the other would be unsatisfactory. If the public right is subordinate to and overridden by a formal variation decision, there can be no good reason why it should not equally be subordinate to and overridden by a decision not to enforce.
If that is correct, no scope is left for the operation of the novel public right being contended for. On analysis, the council’s ability to ‘override’ the public right of enforcement by releasing the covenant is inconsistent with there being any public right to enforce the covenant. The custodian of the covenant was the council. Established procedures exist for those dissatisfied with the council’s decisions. But there is no independent public right to enforce the covenant. In short; the categories of public right are not closed, but there is no scope for the existence of a public right in this case without doing unjustifiable violence to the contractual and local government framework in which the 1934 agreement rests.’

Judges:

Nicholls LJ

Citations:

Times 02-Jan-1990

Statutes:

Town and Country Planning Act 1990 106

Jurisdiction:

England and Wales

Cited by:

Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Lists of cited by and citing cases may be incomplete.

Planning, Contract

Updated: 02 May 2022; Ref: scu.415911

R G Kensington Management Co Ltd v Hutchinson IDH Ltd: ChD 2003

Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as supporting that contention. First, that the purpose of s. 2 was to introduce a new and strict regime in relation to contracts for the creation or transfer of interests in land, can be seen from observations of the Court of Appeal in First Post Home Ltd v. Johnson [1995] 1 W.L.R. 1567 at 1571B to H, and McCausland v. Duncan Laurie and Partners [1997] 1 W.L.R. 38 at 44G. Secondly, the result for which the defendant contends is compelled by the reasoning and decision at first instance in this division of Mr David Mackie Q.C. in Jolson [sic] Ltd v. Derby County Council [1999] 3 E.G.L.R. 1991. Despite these authorities, I reject the defendant’s case on s.2.
The purpose and effect of s.2 is to be assessed by reference to the words used by the legislature, and nothing said by the Court of Appeal suggests otherwise. Those words are to be given their natural meaning unless there is some very good reason to the contrary. The closing words of s.2(3) require the contract, or the parts of the contract to be signed by ‘each party to the contract’, not by ‘each party to the prospective conveyance or transfer’. In this case that means that the freehold agreement must be signed by the parties to it, the defendant and Mr Caan. Kensington is not a party to the freehold agreement and, as it is not a party to that contract, it seems there is no reason to require it to sign it. I see no reason to give an artificial meaning to s.2(3) as the defendant’s argument involves, nor do I consider it permissible to do so. Mr Dowding, in his concise submissions on this issue, said that it would be consistent with the spirit of s.2 if a contract such as the freehold agreement could only be enforced in Kensington’s favour if it could be enforced against Kensington. I accept, that the freehold agreement could not be enforced against Kensington unless Kensington had signed it. Accordingly, I see the force of the point, but there is nothing to suggest that the legislature had that sort of consideration in mind when enacting s.2. To give s.2 the meaning and effect that the defendant contends for, would involve an impermissible re-writing and extension or extension of s.2(3). It would also involve giving s.2 a greater degree of interference with Common Law rights and freedom to contract than it naturally bears.
I am not obliged to follow Jolson, but I should only depart from it if I am satisfied that it was wrongly decided, I am clear in my mind that it cannot be supported. It is fair to say that, at least judging from the report, it appears that the simple argument as to why s.2 does not preclude the enforcement of a contract such as the freehold agreement, which causes me to reject the defendant’s case, does not seem to have been raised in terms in Jolson-see the summary of the losing argument at [1999] 3 EGLR 96 B to E.’

Judges:

Neuberger J

Citations:

[2003] 2 P and CR 13

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 82

Jurisdiction:

England and Wales

Citing:

Not Followed – Jelson Ltd v Derbyshire County Council CA 1-Aug-1999
Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .

Cited by:

Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 May 2022; Ref: scu.415912

Chambers v Hubberd: 1653

If B man become bound upon a condition which is inscribed in the body of the bond, whether a declaration that he became bound cum conditione subscripta be good ?

Citations:

[1653] EngR 428, (1653) Cro Eliz 882, (1653) 78 ER 1107 (A)

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.412735

Ross v Ross: SCS 1895

The pursuer was the widow of Sir Charles Ross who died in 1883 and was succeeded by his pupil son. From then until 1893, when her son attained majority, the pursuer had acted as his sole tutor and curator. She was entitled to an annuity of andpound;2,000 under her marriage contract and certain bonds of provision. In 1894 she raised an action against her son for payment of two instalments of the annuity. Her son admitted that the pursuer was entitled to the instalments, but denied that the sums were due, under reference to an action of count, reckoning and payment which he had brought against her, concluding for payment of andpound;70,000 as the balance of her intromissions as his sole tutor and curator and as an individual. He had also raised an action against her, as executrix of the deceased’s moveable estate, for payment of legitim. The son pleaded compensation and also that he was entitled to withhold payment of the annuity because of the pursuer’s failure to pay him legitim or to account for her intromissions with the estate. The Lord Ordinary repelled the son’s defences and granted decree for payment of the annuity. He reclaimed.
Held: The First Division decided to supersede consideration of the reclaiming motion until there should be some change of circumstances. They did so by sisting the action and leaving it open to either party to move therein.
Lord M’Laren said: ‘In disposing of the pleas in this case I think that the Lord Ordinary has rightly dealt with the plea of compensation, because that is a matter of statutory regulation, and the plea is confined to cases where both debts are liquid or capable of immediate ascertainment; but then there is another principle under which one obligation may be suspended until the performance of a counter obligation – the principle of retention, and that, not being subject to the conditions of any statute, must be regarded as an equitable right to be applied by the Court according to the circumstances of each case as it shall arise. The doctrine has received much extension in cases of bankruptcy and insolvency . . But the principle is not limited to bankruptcy cases, and it seems to me that the circumstances of the present case constitute a very clear ground for its application, because Lady Ross while in the management of her son’s estates appears to have wholly neglected the duty of keeping strict accounts, which is incumbent upon every administrator of the property of others, and when she is called upon to account she states that the whole of the money has been expended, and that of a very large sum, amounting to nearly andpound;4,000 a-year, she is unable to give any particulars. Now, that is a position which no guardian or administrator is entitled to assume, and upon the statement of these accounts, and also the claim of legitim, I cannot doubt that, if it appears to the Court that there is a probability that Lady Ross has already in her hands as much of her son’s money as would satisfy this jointure, she would not be entitled to immediate decree. The judgment which I understand your Lordship will pronounce will be one merely suspending the procedure in this case, and if it turns out, contrary to all the probabilities, that the whole of the son’s income has been legitimately and properly expended by his mother, and also that there is no legitim due to him, then of course Lady Ross will be entitled to decree for her jointure.’
Lord Adam did not think: ‘it would be consonant with justice to give this lady immediate decree for the sum she claims.’

Judges:

Lord M’Laren

Citations:

(1895) 22 R 461

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 . .
Considered – Integrated Building Services Engineering Consultants Ltd (T/A Operon) v PIHL UK Ltd SCS 1-Jul-2010
In Scots law it would be inequitable for a debtor of a bankrupt to be required to pay his debt in full, while he could only get a dividend for the debt due to him by the bankrupt, but there is no consensus as to whether this principle is a species . .
Mentioned – Heritable Bank Plc, Administrators of v The Winding-Up Board of Landsbanki Islands Hf SC 27-Feb-2013
A claim by Heritable (H) in Landsbanki’s (L) insolvency had been rejected and then withdrawn before the Icelandic court, and L now appealed against rejection of its own assertion that that Icelandic decision was binding also within its own claim . .
Lists of cited by and citing cases may be incomplete.

Contract, Scotland

Updated: 02 May 2022; Ref: scu.410714

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 the combined Acts.
Wills J said: ‘I am of the same opinion; and I agree with my Lord, on consideration, that debentures of an incorporated company are not, and were never intended to be within the operation of the Act of 1878.’
Lord Coleridge CJ said: ‘The question is, whether a debenture of an incorporated company requires registration as a bill of sale. I am of the opinion – and I think it right to say that my opinion does not stand alone, but is supported by that of a judge of much greater authority than myself, whom I have had the opportunity of consulting – that such debentures are not bills of sale, and are not struck at by either of these Acts of Parliament – that they were never within the Act of 1878 and are expressly exempted from the operation of the Act of 1882.’

Judges:

Wills J, Lord Coleridge CJ

Citations:

(1890) 25 QBD 300

Statutes:

Bills of Sale Act 1878 4, Bills of Sale Act 1882

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

Contract, Company

Updated: 02 May 2022; Ref: scu.408564

John Hole v Christopher Harrison; Christopher Harrison v John Hole, Sir Thomas Player, Thomas Gilpin, Robert Jones, Thomas Tayler, And Anne His Wife: 1673

Two were bound in a recognizance, one was sued and paid the money, the other was decreed to pay half y contribution

Citations:

[1673] EngR 61, (1673-1681) Fin H 203, (1673) 23 ER 111 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 02 May 2022; Ref: scu.406243

Koenigsblatt v Sweet: CA 1923

The copy of a contract signed by a vendor was altered after his signature by his solicitor to correspond to the copy signed by the purchaser, but before it became binding.
Held: The vendor’s subsequent ratification of the altered document related back, so that the position was as if the alterations had been in the document when he signed it. Lord Sterndale MR said: ‘the defendant wishes to get out of a contract which he undoubtedly made and approved, because he could make more money by repudiating it than by fulfilling it.’ Effective ratification is ‘equivalent to an antecedent authority’, and will have retrospective effect.
Younger LJ said: ‘the defendant must be taken to have ratified and acknowledged his signature to the memorandum in its then state’.

Judges:

Lord Sterndale MR, Younger LJ

Citations:

[1923] 2 Ch 314

Contract

Updated: 02 May 2022; Ref: scu.401640

Ter Neuzen v Korn: 19 Oct 1995

CANLII (Supreme Court of Canada) The plaintiff underwent AI treatment by the defendant, during the course of which she contracted HIV-AIDS. She claimed in negligence and contract.
Held: A court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.

Judges:

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

Citations:

[1995] 3 SCR 674

Links:

Canlii

Jurisdiction:

Canada

Commonwealth, Contract, Negligence, Damages

Updated: 02 May 2022; Ref: scu.402550

Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd: HL 1908

Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract themselves out of their duties, but, unless they prove such a contract, the duties remain; and such a contract is not proved by producing language which may mean that and may mean something different.
Lord Loreburn LC said that there is ‘only one standard of construction, except where words have acquired a special conventional meaning, namely, what do the words mean on a fair reading, having regard to the whole document?’

Judges:

Lord Loreburn LC

Citations:

[1908] AC 16

Jurisdiction:

England and Wales

Cited by:

Adopted – British Movietone News Limited v London and District Cinemas Limited HL 26-Jul-1951
Film distributors contracted to supply newsreels at a cinematic theatre. The contract was for a minimum of 26 weeks, and after on termination by the distributors on four weeks notice thereafter, but by the cinema on four weeks after the first month. . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.402548

Browning And Denham: 1685

In indebitatus of Pasch. last, the defendant pleaded that post exhib. billae, viz. the 12th of February (which was before) that here was an accord that the defendant should pay to the plaintiff on the said 12th of February 20l. Which he had paied on the said day ; to which the plaintiff demurred, and per Curiam though the viz. be void, yet the plea in bar is ill, for the accord could never be executed on a day precedent to the making, andc. and judgment for the plaintiff.

Citations:

[1685] EngR 505, (1685) 3 Keb 786, (1685) 84 ER 1012 (A)

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.397280

Gator Shipping Corporation v Trans-Asiatic Oil Ltd, The Odenfeld: 1978

The parties entered into charter for a basic period of ten years. After the first two years the charter hire rate was to be assessed by the London Tanker Broker Panel, subject to a minimum. A side letter from the owners to the defendants contained a ‘funding arrangement’ under which, if the hire fixed by the Panel was less than the minimum hire specified in the charter, the owners would pay the difference. The defendants knew the documents were written to help the owner raise a loan and that it was at least highly likely that the owner would not disclose to the lender the side letter. After the charter had been made, the owner approached the plaintiffs for a loan, disclosing only the charter and not the side letter. The plaintiffs made a loan of $6,660,000 repayable with interest in 16 instalments over eight years on the security of an assignment of the money due under the charter. They believed that the charter contained all the terms of the bargain. The freight market collapsed, and the Panel fixed a rate below the minimum level in the charter. The owner did not observe the funding arrangement, and the defendants said that they treated the charter as at an end due to the owner’s wrongful repudiation.
Held: The owners were entitled to refuse to accept the repudiation, because the funding arrangement was a separate matter. Neither the owner nor the plaintiffs were precluded or estopped from denying that the side letter and the charter represented one transaction. Alternatively, the defendants were estopped from denying that the charter represented the only material bargain between them and the owner which could affect the obligation to pay hire.
Kerr J said: ‘the defendants’ conduct was at least careless, i.e. negligent in law if they were under a duty to potential lenders not to act in relation to the documents as they did’. The law provided a remedy by the doctrine of estoppel, and the plaintiffs would also have a remedy in negligence.
Reviewing White and Carter and Attica Sea Carriers, Kerr J said that ‘any fetter on the innocent party’s right of election whether or not to accept a repudiation will only be applied in extreme cases, viz. where damage would be an adequate remedy and where an election to keep the contract alive would be wholly unreasonable.’
Reviewing earlier case law, ‘All three judgments proceeded on the basis that the owner’s contention must fail because it amounted to an attempt to enforce the charter by a specific performance and because, on the extreme facts of that case, it was wholly unreasonable to the owners to seek to hold the Charterers to the charter instead of claiming such damages as they could establish. I emphasise the latter part of what I regard as the ratio of the judgments, because I do not regard the case as any authority for a general proposition to the effect that whenever the Charterer repudiates a time or demise charter for whatever reason and in whatever circumstances, the owners are always bound to take the vessel back, because a refusal to do so would be equivalent to seeking an order for specific performance. The consequences of such a proposition would be extremely serious in many cases, and no trace of such a doctrine is to be found in our shipping laws. No such general proposition was laid down. One only has to read the judgment of Lord Denning MR, with which Lord Justices Orr and Browne agreed, to see that his conclusion was based on the extreme facts of the case. In saying this I am in no way belittling the importance of the case in so far as it is a presently binding authority on this court in limiting or qualifying the generality of the principal of a virtually unfettered right of election in favour of the innocent party. This had been stated in the speech of Lord Hodson, and was evidently accepted, subject to the practicalities of the situation, by all three members of the Court of Appeal in the Decro-Wall case. It must be accepted in this court that the generality of this principal is qualified by the later Atticus Sea Carriers decision, since all three judgments deal with the White and Carter case and the Decro-Wall case is also expressly referred to in the judgments of Lords Justices Orr and Browne. However, what was decided in the Atticus Sea Carrier case, to use the language of Lord Justice Orr at the end of his judgment, was that the passages in the judgments in the Decro-Wall case did not apply ‘in the very different circumstances of this case’. It follows that any fetter on the innocent party’s right of election whether or not to accept a repudiation will only be applied in extreme cases, viz. where damages would be an adequate remedy and where an election to keep the contract alive would be wholly unreasonable.’

Judges:

Kerr J

Citations:

[1978] 2 Lloyds Reports 357

Cited by:

Cited – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.396613

Plant v Bourne: CA 1897

Parol evidence was admitted to identify the 24 acres of land that had been agreed to be sold. It was clear that there was a contract. Its object were the 24 freehold acres of land which the parties had discussed. All evidence to identify the land was receivable. Once that is admitted there is no room for dispute.
The general rule applicable was ‘Id certum est quod certum reddi potest’ – ‘That is certain which can be rendered certain’

Judges:

Lindley LJ

Citations:

[1897] 2 Ch 281

Citing:

Approved – Ogilvie v Foljambe 25-Jul-1817
Sir William Grant said: ‘The subject-matter of the agreement is left, indeed, to be ascertained by extrinsic evidence; and, for that purpose, such evidence may be received. The defendant speaks of ‘Mr Ogilvie’s house’ . . and parol evidence has . .

Cited by:

Cited – Westvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 May 2022; Ref: scu.393013

Regina v Lord Chancellor, ex parte Nangle: CA 1991

The applicant was a Civil Servant seeking judicial review of the Department’s decision to discipline him. The issue was whether he had a contract of employment or merely a relationship with the Crown, regulated under its prerogative powers. There were a number of documents which, together, comprised Mr Nangle’s appointment. There was a letter of appointment which cross referred to other documents which either were enclosed with the letter or were readily available elsewhere.
Held: The question whether there was an intention to create legal relations had to be ascertained objectively, and where the terms of the relationship are to be derived solely from the documents, its answer depends upon the construction of those documents: ‘[I]n our judgment, that the question whether there is an intention to create legal relations is to be ascertained objectively, and where the terms of the relationship are, as here, to be derived solely from the documents, depends upon the construction of those documents. It is possible for a party to believe mistakenly that he is contractually bound to another when in fact he is not; and conversely to believe that he is not when he is. His belief is immaterial. While this remains a subjective belief uncommunicated to the other party, this is plainly correct. But where such a belief is expressed in the documents it must be a question of construction of the documents as a whole what effect should be given to such a statement.’
Civil servants enter into legal relations with the Crown in the form of contracts of employment: ‘In our judgment the use of the word ‘appointment’ is neutral and certainly does not negative an intention to create legal relations. Many contractual relationships of employer and employee are described as appointments’.

Citations:

[1991] ICR 743, [1992] 1 All ER 897

Employment, Contract, Judicial Review

Updated: 02 May 2022; Ref: scu.392700

Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’): CA 1987

Citations:

[1987] 1 Lloyd’s Reports 239

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 . .
Appeal from – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) HL 1989
A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .
Cited – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.381837

Howard v Pickford Tool Co Ltd: CA 1951

An unaccepted wrongful repudiation that is not in itself a breach does not give rise to a right in damages. Unless and until the repudiation is accepted the contract continues in existence. Asquith LJ said that an unaccepted repudiation is ‘a thing writ in water and of no value to anybody’.

Judges:

Asquith LJ

Citations:

[1951] 1 KB 417

Cited by:

Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.377347

Strutt v Whitnell: CA 1975

The house sale contract provided for vacant possession on completion, notwithstanding that it was in fact occupied by a protected tenant who in the event declined to leave. The vendor offered to accept a reconveyance of the house, but that offer was refused by the purchaser who brought an action for breach of contract. The vendor contended that the purchaser had failed to mitigate by refusing his offer to accept a reconveyance.
Held: The argument failed. Where the purchaser’s only remedy was to recover damages for breach of contract he was not bound to take steps that would deprive him of his right to retain the property and recover damages for the breach of contract. It cannot be right that a refusal to accept a defendant’s offer: ‘even if such refusal were wholly capricious, was something that deprived the plaintiff of his right to substantial damages altogether.’
Cairns LJ said that the offer of buy-back was indistinguishable from an offer to pay damages of andpound;1,900. The plaintiff was not bound to choose between his two remedies: ‘if [the defendant’s] contentions were right it would logically follow that if the offer . . had been not ‘We will take the house back’ but ‘We will pay you andpound;1,900 damages’ and the plaintiff had then, for some reason, refused that offer and had brought an action for damages it could be said that he ought to have accepted the offer and thereby mitigated his damage and therefore he was entitled to nothing at all. That cannot be. Clearly what would happen in those circumstances would be that the defendants, if they were wise, would make a payment into court of the andpound;1,900 and the plaintiff would suffer in respect of costs. But it could not possibly be suggested that the refusal to accept the offer, even if such refusal were wholly capricious was something that deprived the plaintiff of his right to substantial damages altogether.’

Judges:

Cairns LJ

Citations:

[1975] 1 WLR 870

Cited by:

Not approved – Sotiros Shipping Inc v Sameiet; The Solholt CA 1983
The seller had failed to deliver the vessel he had sold by the delivery date. The buyer cancelled and requested return of his deposit, also claiming damages because the vessel was worth $500,000 more on the delivery date than she had been when the . .
Applied – Copley v Lawn; Maden v Haller CA 17-Jun-2009
The parties had been involved in a road accident. The insurer for the liable party offered a car for use whilst the claimant’s car was being repaired. The claimants had rejected that offer, and now appealed against a refusal to award them the cost . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 02 May 2022; Ref: scu.375998

Chaplin v Leslie Frewin (Publishers) Ltd: 1966

It had been agreed that the defendant publishers should during the legal term of the copyright have the exclusive right of producing, publishing and selling a work in volume form in any language throughout the world. The author warranted that he was the owner of the copyright. Application was made to set aside an interlocutory judgment.
Held: The words used were an ‘ample and effective to constitute an assignment’, though Danwerts LJ also thought they might constitute an exclusive licence. Winn LJ unequivocally thought the words ‘should . . be regarded as, and given the effect of, an assignment of copyright’.
Lord Denning (dissenting) thought that the agreement . . was an assignment of copyright; . . or at any rate it was the grant of an interest in the copyright’ and ‘The law of this country for centuries has been that if anyone under the age of 21 makes, or agrees to make, a disposition of his property by a deed or document in writing, he may avoid it at any time before he comes of full age or within a reasonable time thereafter.’

Judges:

Denning LJ, Dankwerts LJ

Citations:

[1966] Ch 71

Jurisdiction:

England and Wales

Cited by:

Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Cited – B4U Network (Europe) Ltd v Performing Right Society Ltd CA 16-Oct-2013
Composers had entered an agreement with the respondent, assigning all copyrights in their works to the respondent. The respondent asserted also an equitable assignment of all future works. The appellant asserted that the rights in the particular . .
Lists of cited by and citing cases may be incomplete.

Contract, Intellectual Property

Updated: 02 May 2022; Ref: scu.373856

Blomley v Ryan: 28 Mar 1956

(High Court of Australia) Equity – Contract for sale and purchase of grazing property – Suit for specific performance brought by purchaser – Vendor aged and affected by long bout of rum drinking – Claim to set aside contract – Unconscionable bargain – Constructive fraud – Circumstances in which courts of equity will grant relief.

Judges:

Taylor J, McTiernan J, Fullagar J, and Kitto J

Citations:

(1956) 99 CLR 362, [1956] HCA 81

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd QBD 1983
To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.375098

Pharmacy Care Systems Limited v The Attorney General: 16 Aug 2004

(Court of Appeal of New Zealand) The claimant had settled a dispute with a Health Authority which alleged it had overclaimed for pharmacy supplies. It now claimed that the settlement should be set aside as having been entered into under duress.

Judges:

McGrath J, Hammond J, O’Regan J

Citations:

[2004] NZCA 187

Links:

NZLII

Jurisdiction:

Commonwealth

Citing:

Cited – Heffer and Another v Tiffin Green (A Firm) CA 17-Dec-1998
The plaintiff had sued the defendant accountants for negligently understating their business profits by inflating the figure for creditors. As a result, further tax had to be paid. The plaintiffs claimed the penalties and interest on tax paid . .
Cited – Kapur v J W Francis and Co CA 18-May-1999
Notwithstanding a finding by a High Court Judge that K ‘had shaded the truth’, and ‘lacked frankness in his evidence’, the Court set aside a credibility finding on the basis that not only was there a lack of reasoning as to why the Judge preferred . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.372850

Shetelworth v Neville: 21 Nov 1786

A plea by an heir at law, who was sued by an obligee of his ancestor, that he claimed to retain a certain sum for money laid out in repairing the premises, cannot be supported.

Citations:

[1786] EngR 210, (1786) 1 TR 454, (1786) 99 ER 1194

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.371573

Cooke v Oxley: 14 May 1790

A. having proposed to sell goods to B., gave him a, certain time at his request to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A. ; yet A. was not liable in an action for not delivering them, for B. not being bound by the original contract, there was no consideration to bind A.

Citations:

[1790] EngR 2367, (1790) 3 TR 653, (1790) 100 ER 785 (B)

Links:

Commonlii

Cited by:

Explained – Byrne v van Tienhoven and Co 1880
The defendant offered by a letter to the plaintiffs to sell them goods at a certain price. They later wrote to the plaintiffs to withdraw the offer. Before they knew of the revocation, the plaintiffs accepted the offer by telegram. The defendants . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.365420

Revell v London General Insurance Co: 1934

MacKinnon J said: ‘if there is an ambiguity in this question so that upon one view of the reasonable meaning which is conveyed to the reasonable reader of it the answer was not false, the company cannot say that on the other meaning of the words the answer was untrue so as to invalidate the policy’.

Judges:

MacKinnon J

Citations:

[1934] 50 Lloyd’s Rep 114

Jurisdiction:

England and Wales

Cited by:

Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 02 May 2022; Ref: scu.346904

The Bank of England v Morice: 1795

Where a bond is forfeited in the life-time of the testator, the penalty is the legal debt, and on the issue what is due must cover so much assets, but on a bond where the day of payment is not come, to be assets only can lie covered for the sum in the condition. Where an executrix pleads the penalties of three bonds, and the jury by special verdict find assets in one entire sum, if the Court are of opinion that the penalties of two of the bonds are to be considered as the debt due, but that the third shall cover no more than the sum really due upon it, they may deduct such penalties and sum due out of the assets found, and give judgment for the plaintiffs to recover the rest.

Citations:

[1795] EngR 3335, (1795) 2 Str 1028, (1795) 93 ER 1012 (B)

Links:

Commonlii

Citing:

See Also – Morice v The Bank of England 1732
. .
See Also – The Bank of England v Morice, Executrix of Humphrey Morice Deceased 1734
. .
See Also – The Bank of England v Katherine Morice, Widow, And Others PC 24-May-1737
. .
See Also – The Bank of England v Katherine Morice, Widow, And Others PC 24-May-1737
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.355680

Grant v John Grant and Sons Pty Ltd: 1 Jun 1954

(High Court of Australia) Contract – Deed of release – Recitals – Limitation – Claims not in contemplation unaffected – Equitable considerations affecting release – General words.
Dixon CJ said: ‘No doubt it is possible a priori that the release was framed in general terms in the hope of blotting out, so to speak, all conceivable grounds of further disputes or claims between all or any two or more parties to the deed, whether in respect of matters disclosed by a party against whom a claim might be made or undisclosed, of matters within the knowledge of a party by whom a claim might be made or outside it. If so the case would fall within the exception which, in the passage already cited, Lord Northington [Lord Keeper Henley] made from his proposition that a release ex vi termini imports a knowledge in the releasor of what he releases, namely the exception expressed by the words ‘unless upon a particular and solemn composition for peace persons expressly agree to release uncertain demands’ (Salkeld v Vernon).’

Judges:

Dixon C.J.(1), Webb(2), Fullagar(1), Kitto(1) and Taylor(1) JJ.

Citations:

[1954] HCA 23, (1954) 91 CLR 112

Links:

Austlii

Jurisdiction:

Australia

Citing:

Cited – Salkeld v Vernon 1758
A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have . .

Cited by:

Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.342301

Scott v Gillmore: 6 Jul 1810

A bill of exchange, part of the consideration for which is spirituous liquor sold in less quantities than of 20s. value, is totally void, though part of the consideration was money lent -The statute 24 G. 2, c. 40, s. 12, making illegal the sale of spirits in less quantities than to 20s. value, unless paid for, extends to spirits mixed with water.

Citations:

[1810] EngR 393, (1810) 3 Taunt 226, (1810) 128 ER 90 (A)

Links:

Commonlii

Cited by:

Cited – Fielding and Platt Ltd v Selim Najjar CA 17-Jan-1969
The plaintiff company had contracted to make and export to the defendant an aluminium extrusion press. The defendant re-assured the plaintiff that it would be lawful for him to import the plant, but asked that the plant be described falsely on the . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 02 May 2022; Ref: scu.335578

Perfect And Others v Musgrave: 10 Nov 1818

One of two drawers of a joint promissory note, payable twelve months after date, who is surety for the other to the amount, is not discharged by the drawee not having demanded paymenit from the surety wheri due, nor till after having entered into a deed of composition with the principal and his other creditors, and received the compositiori money.

Citations:

[1818] EngR 676, (1818) 6 Price 111, (1818) 146 ER 757

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.332676

Smith v Fromont: 18 Jul 1818

A. the owner of a stage coach from Bristol to London, sold to B. the profits of it for a part of the road, B. agreeing to supply the coach with horses for that part of the road, and A. for the remainder. B.’s. horses having been taken in execution and advertised for sale, A. provided his own horses to convey the coach along that part of the road comprised in B.’s agreement : and the Court refused a motion for an injunction to restrain him from so doing.

Citations:

[1818] EngR 611, (1818) 1 Wils Ch 472, (1818) 37 ER 202 (A)

Links:

Commonlii

Litigation Practice, Contract

Updated: 02 May 2022; Ref: scu.332611

Studdy v Sanders And Another: 2 Jun 1826

Where a contract was made between A. and B., whereby A., having a quantity of apples, agreed to sell his cyder to B. at a certain price per hogshead, to be delivered at T. at a future time, and to lend such pipes as he had for the use of the cyder, to be manufactured on his, A.’s premises, and to be paid for before it was removed, and A, in pursuance, delivered a quantity of juice expressed from’the apples to a servant hired by B. to manufacture the cyder on A.’s premises, and before the cyder was completely manufactured, it was seized by the Excise-officers, because the place where it was deposited had not been entered, and was condemned in the Exchequer as B.’s property, together with the casks, and in assumpsit for goods sold and delivered, brought by A. against B., it appeared that the word cyder, at the place where the contract was made, meant the juice of the apples as soon as it was expressed : it was thereupon held, that the contract must be construed to have been for the sale of cyder in that sense of the word, and that the property passed to B. as soon as the apple juice was delivered to his servant. Secondly, that it was B.’s duty to enter t,he premises, and as through his default it became impossible for A. to deliver the goods at T., the failure to do so did not bar his action. Thirdly, that A. might recover in this action the price of the casks lent to the defendant.

Citations:

[1826] EngR 977, (1826) 5 B and C 628, (1826) 108 ER 234

Links:

Commonlii

Citing:

See Also – Studdy v Sanders and others 1823
Legal professional privilege. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.325741

Laythoarp v Bryant: 16 Jan 1835

Plaintiff put up to sale by auction a lease of premises, which he occupied as assignee of the lease, stipulation not to produce any title prior to the lease. In an action against a purchaser for not completing his purchase, in which action Plaintiff declared he was possessed of the lease, Held, the Defendant having rejected the abstract, that Plaintiff was bound to prove the execution of the lease by calling the attesting witness, and that it was not sufficient to prove the assignment to Plaintiff.

Citations:

[1835] EngR 383, (1835) 1 Bing NC 421, (1835) 131 ER 1179

Links:

Commonlii

Cited by:

Appeal from – Laythoarp v Bryant 30-Apr-1936
laythoarp_bryant1836
The Defendant purchased certain leasehold premises at an auction, and signed a memorandum of the purchase on the back of a paper containing the particulars of the premises, the name of the owner, and the conditions of sale: Held, that the Defendant . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 02 May 2022; Ref: scu.315891

Churchill v Susanna Bertrand, Administratrix, &C Of Pateman: 23 Jun 1842

Intestate granted an annuity to plaintiff. After his death, his administratix caused the annuity to be vacated for a defect in the memorial Plaintff to recover the balance of consideration money, brought indebitatus assumpsit against the admiriistratrix for money had and received by the intestate to plaintiff’s use, stating promises by intestate and by defendant. Held that, although a right to recover the consideration money became vested in plaintiff on the refusal to continue the annuity, such right did not go back, by relation, to the time when that money was originally paid : and therefore counts in the above forms were not applicable.

Citations:

[1842] EngR 804, (1842) 3 QB 568, (1842) 114 ER 625

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.307759

Phillips v Viscount Canterbury: 27 May 1843

A sheriff who has seized goods under a fi fa, and disposed of them by appraisement and bill of sale, is not entitled to deduct the expenses of the appraisement and sale ; the scale of fees framed under 7 Will. 4 and 1 Vict. c. 55, applying to ‘sales by auction’ only.

Citations:

[1843] EngR 704, (1843) 11 M and W 619, (1843) 152 ER 953

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.306398

Powney v Blomberg: 11 Jul 1844

A. executed B bond and mortgage to B. to secure andpound;2,000 lent to him by B., with interest at 5%.
B having sold out a sum of stock to enable her to make the loan, the dividends of which exceeded the interest of the andpound;2000 at andpound;5 per cent., A. afterwards agreed, in consideration of her Ietting the andpound;2000 continue secured at interest as aforesaid, to transfer to her, when requested so to do, the amount of the stock sold out, or, at her option, to pay to her a sum of money sufficient to repurchase it, and, in the meantime, to pay to her the amount of the dividends of it, intstead of the interest of the andpound;2000.
Held, that the agreement was additional to and not substitutional for the bond and mortgage, and was, therefore, usurious.

Citations:

[1844] EngR 772, (1844) 14 Sim 179, (1844) 60 ER 325

Links:

Commonlii

Contract, Banking

Updated: 02 May 2022; Ref: scu.305364

Parkin v Thorold: 2 Jun 1851

A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.

Citations:

[1851] EngR 542, (1851) 2 Sim NS 1, (1851) 61 ER 239

Links:

Commonlii

Cited by:

Appeal from – Parkin v Thorold CA 1-May-1852
Time Not of Essence in Standard Land Contract
The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific . .
Lists of cited by and citing cases may be incomplete.

Equity, Land, Contract

Updated: 02 May 2022; Ref: scu.296858

Crowhurst And Mary His Wife v Laverack: 20 Nov 1852

The father and mother of an illegitimate child entered into an agreement for the maintenance of the child. He was to contribute on the basis that she would otherwise care for the child. The mother later married, and she and the father now sought payment for necessaries for the child.
Held: If the agreement purported to oblige the father to make payments if the mother agreed to support the child, then there was no consideration for the agreement, but if it was her agreement to take sole support of without affiliating the child, there would be good consideration.

Judges:

Baron Parke

Citations:

[1852] EngR 1029, (1852) 8 Exch 208, (1852) 155 ER 1322

Links:

Commonlii

Cited by:

Cited – Ward v Byham CA 16-Jan-1956
The parties were the parents of an illegitimate daughter. The child lived with the father at first, but the mother requested the child to be returned to her. The father agreed subject to a letter saying: ‘Mildred, I am prepared to let you have Carol . .
Lists of cited by and citing cases may be incomplete.

Children, Contract

Updated: 02 May 2022; Ref: scu.296152

Bluck v Gompertz: 7 Jun 1852

The defendant had signed an undertaking to procure the acceptance of two bills for andpound;200 and andpound;146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for andpound;150. The plaintiff drew bills for andpound;200 and andpound;500 and the defendant saw that they were accepted. The defendant wrote across the guarantee ‘I have received the two drafts, one being for andpound;150, instead of andpound;146, the other being an error in the invoice of andpound;4’). The plaintiff signed this but the defendant did not. The guarantee as endorsed was treated as a valid memorandum of the contract since the endorsement had been made for the purpose of correcting the mistake and, being written by the defendant on the same piece of paper as he had originally signed, his original signature was plainly intended to authenticate the memorandum as amended, and could therefore be considered as doing so, notwithstanding that the words written on the paper by the defendant were written as the words of the plaintiff. Pollock CB said that the court had come to its conclusion not without some difficulty. Baron Parke said he had had great difficulty in bringing his mind to this conclusion.

Judges:

Pollock, Baron Parke

Citations:

[1852] EngR 689, (1853) 7 Exch 862, (1852) 155 ER 1199

Links:

Commonlii

Citing:

See Also – Bluck v Gompertz 15-Nov-1851
The court has power, independently of statute to compel the plaintiff to produce for the defendant’s inspection a document upon which the action is brought, where the defendant is a party to te document and has no copy of it. . .

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: 02 May 2022; Ref: scu.295812

Boreham v Bignall: 12 Mar 1850

A bequest of annuity to the testator’s nephew for life, or until his bankruptcy or insolvency, and after his decease, bankruptcy or insolvency to be paid to his wife, for the personal support of herself, her husband and his children, during the life of his nephew and his wife, and the survivor of them ; and in case they, or either of them, should attempt to alienate the annuity, the trustees to be empowered to apply it towards the support of their children. The first wife of the nephew, to whom he was married before the date of the will, survived the testator, and the gift of the annuity was held not to extend to the widow of the nephew who was his second wife.

Citations:

[1850] EngR 384, (1850) 8 Hare 131, (1850) 68 ER 302

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.297731

Millward v Littlewood: 6 Nov 1850

A declaration alleged, that in consideration that the plaintiff, at the defendant’s request, promised to marry him, he promised to marry her. Averments that the plaintiff hath continued and still is unmarried, and, until the discovery of the defendant’s marriage, was ready and willing to marry him, that, after the defendant’s promise the plaintiff discovered that the defendant, at the time of his promise, was, and still is, married, and that the plaintiff had not, at the time of the defendant’s promisee, any notice of the defendant’s then marriage. Held, on motion in arrest of judgment, that the declaration was good, and that the plaintiff’s remaining unmarried was a sufficient consideration to support the defendant’s promise – Quaere, whether a promise by a married man to marry another woman after his wife’s death is void.

Citations:

[1850] EngR 814, (1850) 5 Exch 775, (1850) 155 ER 339

Links:

Commonlii

Family, Contract

Updated: 02 May 2022; Ref: scu.298161

Dobie v Larkan: 23 Feb 1855

To an action on a bill of exchange for 501., drawn by M. upon and accepted by the defendant, and by M. indorsed to the plaintiff, the defendant pleaded first, that the bill was drawn by M. and accepted by the defendant, and indorsed by M. to the plaintiff, and the plaintiff first held tbe same for the special purpose of getting the same discounted, and to hand the proceeds thereof to the defendant ; that the plaintiff, acting in fraudulent collusion with M, got the bill discounted and, contrary to and in violation of the special purpose for which the bill was drawn, accepted and indorsed, and for which the plaintiff first held the same, handed to the defendant 171. and no more, being part of the proceeds thereof; and that there never was any other consideration for the acceptance by him of the bill, or for the plaintiff being the holder thereof. Secondly, as to 171, a tender of that amount. Held, on motion for judgment non obstante veredicto, that the first plea, though informal, was good in substance, since it confessed a prima facie title in the plaintiff by indorsement, and avoided it by shewing that he was the holder of the bill for a special purpose only, and without consideration – Also that the second plea was had, for tbe acceptor of a bill of exchange cannot plead a tender after the day of payrnent. A plea of tender ought not to be joined with a plea containing a denial of the right of action for the same sum.

Citations:

[1855] EngR 266, (1855) 10 Exch 776, (1855) 156 ER 654

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.292188

Ockenden v Henly: 31 May 1858

Plaintiff put up for sale by auction real property, upon Conditions of sale which stipulated that the purchaser of each lot should ‘forthwith pay into the hands of the auctioneer deposit of 20 per cent. on the purchase money, and sign the agreement ‘to pay the remainder, and ‘that, if the purchaser of either lot shall fail to comply with these conditions, the deposit money shall be actually forfeited to the vendor, who shall be at full liberty to resell such lot either by public auction or private contract ; and any deficiency tbat may arise upon such resale, together with all expences attending the same, shall immediately after such second sale be made good by such defaulter ; and, on non-payment thereof, such amount shall be recoverable by the vendor, as and for liquidated damages.’ Defendant became a purchaser at the auction, but did not pay the deposit or complete the purchase. Plaintiff resold at a price below that for whiich defendant had purchased ; and the deficiency, with the expences of sale, exceeded the amount of the deposit.-Held: that plainitiff was entitled to recover from defendant the amount of the deficiency and expences only, and not, in addition to this, the amount of the deposit.–Per Curiam, Had the deposit been paid, and the bargain completed, the deposit would have gone in part payment of the purchase money : and, in the case of the non-completion of the bargain, if the deficiericy and expences had together been less than the deposit, the purchaser would have been entitled to the whole deposit, but nothing more.

Citations:

[1858] EngR 757, (1858) El Bl and El 485, (1858) 120 ER 590

Links:

Commonlii

Contract, Land

Updated: 02 May 2022; Ref: scu.289228

Herschfeld v Brown: 1862

A person receiving a bill to get it discounted, has no authority to deal with it otherwise than for discount, and a deposit of it along with other bills, with a bill broker as a secunty for advances, the broker having notice that it was delivered for discount, is beyond the scope of the authority, and passes no property.

Citations:

[1862] EngR 69 (B), (1862) 3 F and F 219

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.286235

Ashpitel (Executor of James Peto) v Bryan: 1862

Defendant having accepted a bill drawn by procuration in the name of a person deceased, and handed it, indorsed in that name to a third party, held liable to that party ; and held no defence that the consideration was goods, assets of the deceased, in the possession of the endorsee, and that the bill was on an understanding that the indorsee should take out a adminiistration to his estate in the absence of evidence of an express agreement to that effect.

Judges:

Mellor J

Citations:

[1862] EngR 3 (B), (1862) 3 F and F 183

Links:

Commonlii

Cited by:

Appeal from – Ashpitel, Executor Of James Peto v Bryan QBD 20-Jan-1863
Estoppel. Bill of exchange. Acceptor. Denial of indorsement. – Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. Plea, that A. did not indorse the bill. It . .
See Aslo – Ashpitel, Executor Of James Peto v Bryan CEC 14-Jun-1864
Bill of exchange. Acceptor. Denial of indorsement. Account stated. – Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. ; with a count upon accounts stated. . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 02 May 2022; Ref: scu.286169

Henry Wulff Trigge And Alfred Trigge v Flavien Lavallee: PC 5 Dec 1862

By the old French law, in force in Lower Canada, a ”Transaction’, like an English compromise, is an agreement to put an end to disputes, and terminate or avoid litigation : and in such case the consideration which each party receives, is not the sacrifice of a right, but the abandonment of a claim. The French law in this case has adopted the definition of the Civil law [15 Moo. P.C. 2p2].

Citations:

[1862] EngR 1147, (1862) 15 Moo PC 270, (1862) 15 ER 497

Links:

Commonlii

International, Contract

Updated: 02 May 2022; Ref: scu.287313

M’Cance v The London And North Western Railway Company: 19 Nov 1861

In an action against a railway Company, the first count of the declaration alleged that the plaintiff employed the defendants to provide trucks for the carriage of the plaintiff’s horses, for hire to be paid by the plaintiff, in consideration whereof the defendants promised the plaintiff that the trucks should he reasonably fit and proper for the carriage of such horses Breach: that the defendants did not provide fit and proper trucks, whereby the plaritiff’s horses were injured. Second count that the defendants having received certain horses of the plaintiff to be carried by railway, in consequence of the defective state of the truck and the negligerice and want of care of the defendants, the plaintiffs horses weie injured. Plea: payment of 25l. into Court Replication damages ultra. At the trial, it appeared that when the plaintiff delivered the horses to the defendants, he signed at their request a declaration that the value of the horses (did not exceed 10l. per horse, and that, on consideration of the rate charged for their conveyance, he thereby agreed that the same were to be carried entirely at the ownet’s risk. In the course of the journey the horses were injured in consequence of the defective state of the truck in which they were carried. The horses were worth more than 10l each, and if taken at, their real value the damage sustained by the plaintiff was 65l, but if valued at 10l each the 25l. paid into Court covered the plaintiff’s claim. A verdict having been entered for the plantiff for 40l. on motion to enter the verdict for the defendants, the Court being at liberty to draw inferences of fact Held that the plaintiff having made a wilfully false statement as to the value of the horses for the purpose of inducing, and having thereby induced, the defendants to enter into the contract, was not at liberty to shew their real value, in order to obtain compensation above the amount paid into Court — Semble, that thedeclaration of the value of the horses formed no part of the contract, and that even if it were it did not render the contract a conditional contract –Also, that, the stipulation that the horses should he carried entirely at the owner’s risk was not unreasonable and void within the meaning of the 17 and 18 Vict. C 31.

Citations:

[1861] EngR 967, (1861) 7 H and N 477, (1861) 158 ER 559

Links:

Commonlii

Cited by:

Appeal from – M’Cance v The London And North Western Railway Company 20-Jun-1864
The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
Held: Williams J . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 02 May 2022; Ref: scu.284728

Shadwell v Shadwell And Another: 1858

Citations:

[1858] EngR 147, (1858) 6 CB NS 679, (1858) 144 ER 618

Links:

Commonlii

Citing:

Cited – Eastwood v Kenyon 1840
eastwood_kenyon1840
Defendant may shew, under non assumpsit, that the promise was within stat. 29 Car. 2, c. 3, 8, 4, and was not in writing. Section 4 of that statute, as to promises to pay the debt of another, contemplates only promises made to the person to whom . .

Cited by:

See Also – Shadwell v Shadwell and Another CCP 11-Jan-1860
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.288618

Ashpitel, Executor Of James Peto v Bryan: QBD 20 Jan 1863

Estoppel. Bill of exchange. Acceptor. Denial of indorsement. – Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. Plea, that A. did not indorse the bill. It appeared that A., who was possessed of goods, being the stock in trade upon his premises, died intestate indebted to the defendant and other persons ; and it was arranged between B, and the defendant, who were two of his next of kin, that the defendant, should take possession of the goods and accept a bill of exchange for their value, purporting to be drawn and indorsed by A. The goods were accordingly delivered to the defendant, and the bill declared upon was drawn and indorsed to the plaintiff by procuration in the name of A., and accepted by the defendant. Held, that the defendant could not he allowed to set up as a defence to the action that the bill was not indorsed by A.
Cropmton J said: ‘If it appears . . that, by express agreement between the parties, a bill was drawn and indorsed by procuration in the name of a fictitious or dead person, and the position of one of the parties has been altered, as in the present case, by giving up certain goods to the other, that other is not at liberty afterwards to say that the fact which was assumed as the basis of the contract or arrangement, and upon which the other party acted, and thereby altered his position, was really untrue and that the bill is void.’

Judges:

Crompton J

Citations:

[1863] EngR 158, (1863) 3 B and S 474, (1863) 122 ER 179

Links:

Commonlii

Citing:

Appeal from – Ashpitel (Executor of James Peto) v Bryan 1862
Defendant having accepted a bill drawn by procuration in the name of a person deceased, and handed it, indorsed in that name to a third party, held liable to that party ; and held no defence that the consideration was goods, assets of the deceased, . .

Cited by:

Affirmed – Ashpitel, Executor Of James Peto v Bryan CEC 14-Jun-1864
Bill of exchange. Acceptor. Denial of indorsement. Account stated. – Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. ; with a count upon accounts stated. . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 02 May 2022; Ref: scu.282813

Price v The Hong Kong Tea Company: 1861

On strong evidence of general usage, an accountant held that the jury might find that he was entitled to charge at the same rate for hs clerks as for himself, even during such portion of the time as he was not himself personally engaged in the work.

Citations:

[1861] EngR 73, (1861) 2 F and F 466, (1861) 175 ER 1144

Links:

Commonlii

Contract

Updated: 02 May 2022; Ref: scu.283833

Stephanos Xenos And Another v Wickham, Chairman Of The Victoria Fire And Marine Insurance Company: 18 Apr 1863

Citations:

[1863] EngR 411, (1863) 14 CB NS 435, (1863) 143 ER 515

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Xenos v Wickham 1862
. .
See Also – Xenos v Wickham 12-Jul-1862
. .

Cited by:

See Also – Xenos v Wickham HL 1866
Delivery of document in Escrow
Blackburn J said that a deed is delivered ‘as soon as there are acts or words sufficient to [show] that it is intended by the party to be executed as his deed presently binding on him.’
Lord Cranworth said: ‘The maker (of a deed) may so . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 02 May 2022; Ref: scu.283066

Ashpitel, Executor Of James Peto v Bryan: CEC 14 Jun 1864

Bill of exchange. Acceptor. Denial of indorsement. Account stated. – Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. ; with a count upon accounts stated. It appeared that A., who was possessed of goods, being the stock in trade upon his premises, died intestate, and indebted to the defendant and other persons ; and it was arranged between B. and the defendant, who were two of his next of kin, that the defendant should take possession of the goods and accept a bill of exchange for their value, purporting to be drawn and indorsed by A. The goods were accordingly delivered to the defendant, and the bill declared upon was drawn and indorsed to the plaintiff by procuration in the name of A., and accepted by the defendant.
Held: affirming the judgrtlerit of the Queen’s Bench ; that the defendant could not be allowed to set up as a defence to the action that the bill was not indorsed by A.-2. Semble. That the bill was evidence of an account stated.
Pollock CB said: ‘We all agree with the Court below that there may arise an estoppel by agreement, and that such an estoppel arises here. The parties agreed that the transaction should have this character, viz, that the defendant should appear to have bought the goods of John Peto, and that therefore the bill should be drawn and indorsed in the name of John Peto, and it was afterwards accepted by the defendant on the basis of that agreement. The defendant having accepted the bill after it had been drawn and indorsed in that name, and having promised payment of it, now says that it was not drawn and indorsed by John Peto; but he is estopped from doing so.’

Judges:

Pollock CB, Williams, Wills JJ, Bramwell and Channell BB

Citations:

[1864] EngR 575, (1864) 5 B and S 723, (1864) 122 ER 999

Links:

Commonlii

Citing:

See Aslo – Ashpitel (Executor of James Peto) v Bryan 1862
Defendant having accepted a bill drawn by procuration in the name of a person deceased, and handed it, indorsed in that name to a third party, held liable to that party ; and held no defence that the consideration was goods, assets of the deceased, . .
Affirmed – Ashpitel, Executor Of James Peto v Bryan QBD 20-Jan-1863
Estoppel. Bill of exchange. Acceptor. Denial of indorsement. – Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. Plea, that A. did not indorse the bill. It . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 02 May 2022; Ref: scu.282289

William Dean And Archibald Stewart v James Byrnes, Robert Cook, Clark Irving, Thomas Walker, And Thomas Buchanan: PC 29 Jun 1864

A verbal agreement was entered into between D., a broker and commission agent at Sydney, and S., who speculated in sugars, in consequence of which two sums were advanced by D. to S. at different, periods, the first for andpound;3000, and the second for andpound;7999 15s. 3d., S. undertaking to place in the hands of D., for sale, certain sugars to be imported from Maurituis and Batavia D. taking the profits of the commission arising from the sale, and repaying his advances, with interest, out of the proceeds of the saIe. Of the moneys thus borrowed, the sum of andpound;3000, with other moneys, was remitted by S. to H and Co., his agents at Batavia, for the purchase of sugars. From the state of the market E, and Co. could not then purchase any sugars on S.’s account, who in the interim became Insolvent, and executed a deed assigning his property to Trustees for the benefit of his creditors. After S.’s insolvency H. and Co. purchased Mauritius sugars with the money sent by S., to whom the same was consigned and sold by the Trustees. The exact time when H. and Co. heard of S.’s insolvency did not appear, but they afterwards purchased Batavian sugars, and having heard of S.’s insolvency, consigned the sugars to S., as agent of the Trustees. S. had deposited with D. prornissory notes and acceptances of J. and J. and Co. by way of security for D.’s advances to him. J. and C. were interested in the adventure of S. After S.’s insolvency J. and Co, also became insolvent, and D. received from their estate the sum of andpound;6083 12s., on account of their Bills, and applied andpound;3000 to the payment of the first advance, and the balance towards the other sum of andpound;7999 15s. 3d. D claimed a lien on the sugars in respect of the sum of 4916 11s 3d, the remaining part of the sum of andpound;7999 15s. 3d. Held, affirming the decree of the Court below:-
First, that it was no part of the agreement that S. should invest the moneys lent him by D. in any particular way, and having assigned his property to Trustees for the benefit of his creditors before the purchase by H. and Co., the sugars consigned were for the benefit of the Trustees, and that D. had no lien on the sugars,
Second, that S.’s Trustees allowing H, and Co. to purchase Batavian sugars on their account did not affect the Trustees with any equity in favour of D. under his agreement with S.
A Bill was filed by D. praying a declaration that he had a lien on the sugars consigned from Batavia, but the Bill did not mention the Mauritius sugarrs.
Held, that as D. had so framed his Bill, he was precluded from afterwards
insisting on any new claim by way of lien on the Mauritius sugars.

Citations:

[1864] EngR 623, (1864) 3 Moo PC NS 92, (1864) 16 ER 35

Links:

Commonlii

Contract, Insolvency

Updated: 02 May 2022; Ref: scu.282337

M’Cance v The London And North Western Railway Company: 20 Jun 1864

The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
Held: Williams J cited with approval Blackburn’s statement in his Treaty on the Contract of Sale that ‘when parties have agreed to act upon an assumed state of facts their rights between themselves are justly made to depend on the conventional state of facts, and not on the truth.’

Judges:

Williams J

Citations:

[1864] EngR 595, (1864) 3 H and C 343, (1864) 159 ER 563

Links:

Commonlii

Citing:

Appeal from – M’Cance v The London And North Western Railway Company 19-Nov-1861
In an action against a railway Company, the first count of the declaration alleged that the plaintiff employed the defendants to provide trucks for the carriage of the plaintiff’s horses, for hire to be paid by the plaintiff, in consideration . .

Cited by:

Cited – Prime Sight Ltd v Lavarello PC 9-Jul-2013
(Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel

Updated: 02 May 2022; Ref: scu.282309

Countrywide Communications Limited v ICL Pathway Ltd: 1996

The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it impossible to formulate a clear general principle which satisfactorily governs the different factual situations which have arisen, let alone those which could easily arise in other cases. Perhaps, in the absence of any recognition in English law of a general duty of good faith in contractual negotiations, this is not surprising. Much of the difficulty is caused by attempting to categorise as an unjust enrichment of the defendant, for which an action in restitution is available, what is really a loss unfairly sustained by the plaintiff. There is a lot to be said for a broad principle enabling either to be recompensed, but no such principle is clearly established in English Law. Undoubtedly the court may impose an obligation to pay for benefits resulting from services performed in the course of a contract which is expected to, but does not, come into existence. This is so, even though, in all cases, the defendant is ex hypothesi free to withdraw from the proposed contract, whether the negotiations were expressly made ‘subject to contract’ or not. Undoubtedly, such an obligation will be imposed only if justice requires it or, which comes to much the same thing, if it would be unconscionable for the plaintiff not to be recompensed.
Beyond that, I do not think that it is possible to go further than to say that, in deciding whether to impose an obligation and if so its extent, the court will take into account and give appropriate weight to a number of considerations which can be identified in the authorities. The first is whether the services were of a kind which would normally be given free of charge. Secondly, the terms in which the request to perform the services was made may be important in establishing the extent of the risk (if any) which the plaintiffs may fairly be said to have taken that such services would in the end be unrecompensed. What may be important here is whether the parties are simply negotiating, expressly or impliedly ‘subject to contract’, or whether one party has given some kind of assurance or indication that he will not withdraw, or that he will not withdraw except in certain circumstances. Thirdly, the nature of the benefit which has resulted to the defendants is important, and in particular whether such benefit is real (either ‘realised’ or ‘realisable’) or a fiction, in the sense of Traynor CJ’s dictum[22]. Plainly, a court will at least be more inclined to impose an obligation to pay for a real benefit, since otherwise the abortive negotiations will leave the defendant with a windfall and the plaintiff out of pocket. However, the judgment of Denning L.J. in the Brewer Street case suggests that the performance of services requested may of itself suffice amount to a benefit or enrichment. Fourthly what may often be decisive are the circumstances in which the anticipated contract does not materialise and in particular whether they can be said to involve ‘fault’ on the part of the defendant, or (perhaps of more relevance) to be outside the scope of the risk undertaken by the plaintiff at the outset. I agree with the view of Rattee J. that the law should be flexible in this area, and the weight to be given to each of the factors may vary from case to case.’

Judges:

Nicholas Strauss QC J

Citations:

[1996] C No 2446

Jurisdiction:

England and Wales

Citing:

Cited – Jenning and Chapman Ltd v Woodman Matthews and Co 1952
. .
Cited – Brewer Street Investment v Barclays Woollen Co CA 1953
A prospective tenant for whom a landlord had carried out alterations on the premises was not permitted to break off negotiations for the lease solely to escape liability for the cost of such alterations. Lord Denning said: ‘What, then, is the . .
Cited – William Lacey (Hounslow) Ltd v Davis 1957
The builder tendered for work, apparently not on the basis that the tender might or might not be accepted but so that the owner could use the tender for what was described as ‘some extraneous or collateral purpose’, for negotiating a claim for . .
Cited – British Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
Cited – Marston Construction C Ltd v Kigass Ltd 1989
. .
Cited – Regalian Properties Plc and Another v London Docklands Development Corporation ChD 25-Jan-1995
Negotiations intended to result in a contract were expressly on the basis that each party was free to withdraw from the negotiations at any time, the costs of a party in preparing for the intended contract were incurred at its own risk and it was . .

Cited by:

Cited – MSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.280268

Tennaro Ltd v Majorarch: 2003

The parties entered into three related contracts to grant long leases of three flats in the same block (Nos 37, 32 and 31), and deposits paid. The vendor served notices to complete and when the purchaser did not comply, he rescinded each agreement and forfeited the deposits. The purchaser sought repayment of the deposits under section 49(2).
Held: Special circumstances are needed to justify the return of a deposit where the purchaser is in breach of contract. The fact that the vendor has resold the property elsewhere for a profit might constitute such a special circumstance. Two of the deposits were ordered to be returned. As to Dimsdale, Neuberger J said: ‘As I understand it, (the judge) considered that the fact that the Seller had sold the property at a substantially higher price than it would have received under the contract with the defaulting Buyer, was the crucial factor which justified the return of the deposit. However, it is right to add that he made deductions from the deposit, in favour of the Seller, in relation to expenditure wasted by the Seller under the abortive contract.’

Judges:

Neuberger J

Citations:

[2003] EWHC 2601

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Citing:

Approved – Dimsdale Developments (South East) Ltd v De Haan 1983
The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the . .
Too restrictive – 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 . .
Too restrictive – Omar v El-Wakil CA 11-Jul-2001
The parties entered into two linked contracts providing for a property and a business to be transferred, a lease granted and otherwise. The transfer of the property was in the sum expressed in the sum and at the time the other agreement provided for . .

Cited by:

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

Land, Contract

Updated: 02 May 2022; Ref: scu.279041

Lovelidge v Anselm Odling and Sons Ltd: 1967

The court was asked whether a flexible revolving drive shaft was ‘machinery’.
Held: A drive shaft connecting an electric motor to a cutting wheel could itself constitute machinery.

Citations:

[1967] 2 QB 351

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 02 May 2022; Ref: scu.279051

Jayaar Impex Limited v Toaken Group Limited: 1996

The acceptance of a counter-offer or variation of a contract must be evidenced by ‘the plainest evidence of assent’.

Judges:

Rix J

Citations:

[1996] 2 Lloyds Rep 437

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 02 May 2022; Ref: scu.278432

Lark v Outhwaite: 1991

The plaintiff asserted an intention to create legal relations but there was evidence from his agent which unambiguously showed that subjectively he did not have any such intention.
Held: The claim failed. Though the test for whether a promise was intended to have legal consequences was primarily objective, the court should not be obliged to ignore entirely evidence of subjective intention. For an estoppel to be effective, the promise must be clear and unequivocal.
Hirst J said: ‘The principles are elementary and very well established. The acceptance must correspond with the offer and must be clear and unqualified and would fail to take effect if it attempts to vary the terms of the offer or to add new terms. On the other hand, statements which are not intended to vary the terms of the offer or to add new terms do not vitiate the acceptance.’ and ‘An act which is wholly motivated by factors other than the existence of an offer cannot in law amount to an acceptance.’

Judges:

Hirst J

Citations:

[1991] 2 Lloyds Rep 132

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 . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.277763

Selkirk v Romar Investments Ltd: PC 1963

A vendor of land may properly only rescind a contract on receipt of requisitions for reasons associated with the contract.

Judges:

Viscount Radcliffe

Citations:

[1963] 1 WLR 1415

Cited by:

Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 May 2022; Ref: scu.277560

Re Hewitt’s Contract: 1963

The interpretation and effect of standard conditions governing the sale of land are informed by the background rules of equity governing the operation of contracts for the sale of land.

Judges:

Wilberforce J

Citations:

[1963] 1 WLR 1298

Cited by:

Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 02 May 2022; Ref: scu.277557

Sharma and Another v Simposh Ltd: CA 23 Nov 2011

The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed against an order for the refund of the deposit. The appeal succeeded, and the deposit was repayable: ‘The fact that property was intended to pass and did pass does not, of course, exclude the possibility of a claim for restitution, but such a claim depends on the claimant being able to establish a recognised ground of restitution. In this case the only suggested ground is failure of consideration. Since the claimants obtained the benefit for which the payment was made, there is no merit in their claim and no injustice in the defendant retaining the money. The justice of the matter is entirely on the defendant’s side.’

Judges:

Laws, Toulson, Black LJJ

Citations:

[2011] EWCA Civ 1383, [2013] Ch 23, [2012] 1 EGLR 113, [2012] 3 WLR 503, [2011] 48 EG 8, [2012] 6 EG 92, [2012] 2 All ER (Comm) 288, [2012] 1 P and CR 12

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Howe v Smith CA 1884
A contract for the sale of land required the purchaser to pay andpound;500 ‘as a deposit and in part payment of the purchase money’, and that if the purchaser failed to complete on time the vendor should be free to resell and recover any deficiency . .
Cited – Gribbon v Lutton and Another CA 19-Dec-2001
The defendant solicitors acted in obtaining and holding a deposit on the sale of land. They issued interpleader proceedings which decided that the deposit was payable to the purchaser. The vendor then sued the solicitors in negligence. The . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Chillingworth v Esche CA 1923
The purchasers agreed in writing to purchase land ‘subject to a proper contract to be prepared by the vendors’ solicitors’ accepting andpound;240 ‘as deposit and in part payment of the said purchase money’. A contract was prepared by the vendor’s . .
Cited – Spiro v Glencrown Properties Ltd and Another ChD 1991
The court considered the nature of an option to buy land. Hoffman J said: ‘The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is . .
Cited – Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .

Cited by:

Cited – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 02 May 2022; Ref: scu.448491

Hardy v Motor Insurers’ Bureau: CA 1964

The court was asked whether insurance pursuant to the Road Traffic Act 1960 would provide valid cover for the benefit of a third party injured by deliberately criminal conduct on the part of the driver.
Held: Diplock LJ said: ‘The rule of law on which the major premise is based – ex turpi causa non oritur actio – is concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under contract. All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right (or by someone who is regarded in law as his successor) which is regarded by the court as sufficiently anti-social to justify the court’s refusing to enforce that right.’
Diplock LJ said: ‘It is well settled that if a man commits murder or committed felo de se in the days when suicide was still a crime, neither he nor his personal representatives could be entitled to reap any financial benefit from such an act: In the Estate of Crippen [1911] P. 108; Beresford v. Royal Insurance Co. Ltd . [1938] A.C. 586. This was because the law recognised that, in the public interest, such acts should be deterred and moreover that it would shock the public conscience if a man could use the courts to enforce a money claim either under a contract or a will by reason of his having committed such acts…The court has to weigh the gravity of the anti-social act and the extent to which it will be encouraged by enforcing the right sought to be asserted against the social harm which will be caused if the right is not enforced.’ As to proposition that all contracts to indemnify a person against a liability which he may incur by committing an intentional crime are unlawful:- ‘The rule of law . . – ex turpi causa non oritur actio – is concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under the contract. All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right … which is regarded by the court as sufficiently anti-social to justify the court’s refusing to enforce that right.’
Lord Denning MR said: ‘no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim.’

Judges:

Diplock LJ, Lord Denning MR

Citations:

[1964] 2 QB 745, [1964] 2 All ER 742

Statutes:

Road Traffic Act 1960

Jurisdiction:

England and Wales

Citing:

Cited – In the Estate of Cunigunda Crippen deceased 1911
Dr Crippen notoriously survived his wife. Between the date of his conviction for her murder and the carrying out of the death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as the sole executrix and universal beneficiary. Ethel . .
Cited – Beresford v Royal Insurance Co Ltd HL 1938
The forfeiture rule was to be applied in a case involving suicide. An insured may not recover under a policy of insurance in respect of loss intentionally caused by his own criminal or tortious act, however clearly the wording of the policy may . .

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Keeley (Widow of Terence Noel James Keeley Deceased) v Pashen and Wren Motor Syndicate 1202 at Lloyd’s CA 10-Nov-2004
The driver had driven his car at a crowd of people intending to frighten them. Instead one had been killed. The insurers resisted liability saying that the use of the car for this purpose and as it was being used as a taxi, was not use for social . .
Cited – Gardner v Moore HL 1984
The uninsured first defendant deliberately drove a car at the plaintiff who was walking on the pavement, and thus caused serious injuries. The MIB accepted that the trial judge was bound by Hardy to declare that the Bureau was bound to indemnify the . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Porter v Zurich Insurance Company QBD 5-Mar-2009
The claimant insured his house with the defendants. Severely depressed, drunk and delusional, he set fire to it and now claimed after refusal to pay out. He said that he was not acting as a free agent.
Held: A claimant who seeks to recover . .
Cited – Bristol Alliance Ltd v Williams and Another QBD 1-Jul-2011
The driver had crashed into the insured’s building causing substantial damage. The court was asked which of the driver’s and building’s insurers should bear the costs. The driver’s insurers said that he had acted deliberately and therefore they were . .
Cited – Mulcaire v News Group Newspapers Ltd ChD 21-Dec-2011
The claimant, a private investigator had contracted with the News of the World owned by the defendant but since closed. He had committed criminal offences in providing information for the paper, had been convicted and had served his sentence. He . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Insurance, Personal Injury, Contract

Updated: 02 May 2022; Ref: scu.199538

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 trade then know what ground to go upon.’

Judges:

Lord Mansfield

Citations:

(1774) 1 Cowp 143

Jurisdiction:

England and Wales

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 . .
Cited – 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 . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.219885

Saunders v Edwards: CA 24 Mar 1986

The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action shoud fail since the contract was tainted with the fraud.
Held: The defence failed. The misrepresentation was not part of the contract itself, and was therefore not affected by the plea of ex turpi causa non oritur actio. The purchasers’ dishonest apportionment of the price was wholly unconnected with their cause of action and that their moral culpability in that regard was greatly outweighed by that of the vendor in making the fraudulent representation.
Bingham LJ said: ‘Where issues of illegality are raised, the courts have . . to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct.’ and ‘the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff’s action in truth arises directly ex turpi causa he is likely to fail . . . Where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed.’
Kerr LJ:- ‘However, the present action, unlike Alexander -v- Rayson, is not brought on the contract, but on the tort of deceit based on the defendant’s fraudulent misrepresentation. I therefore do not propose to consider what would have been the position if, for instance, the defendant had declined to complete in this case and the plaintiffs had sought to sue on the contract, either for specific performance or for damages.’ but ‘But the full picture is more complex, as shown by two more recent cases to which we were also referred. I will not analyse them in detail, but they show that there are no rigid rules for or against the application of the ex turpi causa defence. This is not surprising, since it involves issues of public policy. To some extent these must depend on the circumstances of each case.’ and
‘. . . the conduct and relative moral culpability of the parties may be relevant in determining whether or not the ex turpi causa defence falls to be applied as a matter of public policy.’

Judges:

Bingham LJ, Kerr LJ, Nicholls LJ

Citations:

[1987] 1 WLR 1116, [1987] 2 All ER 651, [1986] Ch 638, [1986] EWCA Civ 4

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sweetman v Nathan and others CA 25-Jul-2003
The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: . .
Cited – Pitts v The Personal Representatives of Mark James Hunt (Deceased) and Another CA 1990
The plaintiff and a friend had spent the evening drinking at a disco before setting off on the friend’s motorcycle. The plaintiff was aware that the motorcyclist was neither licensed to ride a motorcycle nor insured. During the journey, the . .
Cited – St Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 02 May 2022; Ref: scu.186011

Les Laboratoires Servier and Another v Apotex Inc and Others: SC 29 Oct 2014

Ex turpi causa explained

The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for what it said would have been an infringing trade, and pleaded ex turpi causa.
Held: The application of the ex turpi causa principle commonly raises three questions: (i) what acts constitute turpitude for the purpose of the defence? (ii) what relationship must the turpitude have to the claim? (iii) on what principles should the turpitude of an agent be attributed to his principal, especially when the principal is a corporation? Each of these questions requires a principled distinction to be made between different kinds of immoral or illegal act and different ways in which they may give rise to claims.
Lord Sumption said: ‘the illegality defence is not engaged by the consideration that Apotex’s lost profits would have been made by selling product manufactured in Canada in breach of Servier’s Canadian patent. A patent is of course a public grant of the state. But it does not follow that the public interest is engaged by a breach of the patentee’s rights. The effect of the grant is simply to give rise to private rights of a character no different in principle from contractual rights or rights founded on breaches of statutory duty or other torts. The only relevant interest affected is that of the patentee, and that is sufficiently vindicated by the availability of damages for the infringements in Canada, which will be deducted from any recovery under Servier’s undertaking in England. There is no public policy which could justify in addition the forfeiture of Apotex’s rights.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson

Citations:

[2014] UKSC 55, [2015] 1 AC 430, [2014] WLR(D) 452, [2014] BUS LR 1217, [2014] 3 WLR 1257, UKSC 2012/0158, [2015] 1 All ER 671, [2015] RPC 10

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video

Jurisdiction:

England and Wales

Citing:

At first instance – Les Laboratoires Servier and Another v Apotex Inc and others PatC 11-Jul-2007
In a patents claim over a form of the perindopril erbumine compound, an ACE inhibitor used for treating hypertension and cardiac insufficiency, the court held that the patent had been infringed, but that it was invalid. In injunction previously . .
Appeal from – Les Laboratoires Servier and Another v Apotex Inc and Others CA 3-May-2012
The court was asked as to ‘the availability of the defence of illegality to a claim on a cross-undertaking in damages where (1) the holder of a patent enforceable in this jurisdiction has obtained an interim injunction against the defendant from . .
See Also – Les Laboratoires Servier and Another v Apotex Inc and others CA 9-May-2008
Appeal against finding that patent was invalid for lack of novelty, but that if valid the defendant’s product would have infringed it. . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Bowmakers Ltd v Barnet Instruments Ltd CA 1945
An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal . .
Mentioned – Palaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .
Cited – Euro-Diam Ltd v Bathurst CA 1990
The illegality defence was invoked in response to a claim on a property insurance.
Held: The court noted the extension of the concept of ex turpi causa non oritur actio: ‘It applies if in all the circumstances it would be an affront to the . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
At Patents Court – Les Laboratoires Servier and Another v Apotex Inc and Others PatC 29-Mar-2011
Arnold J considered what kinds of unlawfulness would engage the ex turpi causa principle.
Held: a relevant illegality was one which was sufficiently serious in all the circumstances of the case, including in particular whether the illegal act . .
Cited – Everet v Williams 1725
The Highwaymens Case – When the court was invited to take an account between two highwaymen, it not only dismissed the claim as ‘scandalous and impertinent’ but ordered the arrest of the plaintiff’s solicitor and fined him. . .
Cited – Shackell v Rosier 22-Apr-1836
In consideration that Plaintiff had published a libel at Defendant’s request, and had at the like request consented to defend an action brought against Plaintiff for such publication, Defendant promised to indemnify Plaintiff from the costs of the . .
Cited – Burrows v Rhodes 22-Mar-1899
The plaintiff was induced to enlist in the Jameson Raid of 1895, contrary to section 11 of the Foreign Enlistment Act 1870, by the defendants’ fraudulent representation that it had the sanction of the Crown (which would have made it lawful). Kennedy . .
Cited – Weld-Blundell v Stephens HL 1920
The plaintiff had been successfully sued for a libel contained in a document which he had supplied to his accountant.
Held: He could not recover the damages he had had to pay to the defamed party from his accountant, who had negligently left . .
Cited – Parkinson v College of Ambulance Ltd and Harrison 1925
the plaintiff made a donation to a charity to secure a knighthood. When the honour failed to materialise he sued for the return of his money. The claim was rejected. Lush J said that ‘no Court could try such an action and allow such damages to be . .
Cited – Hall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
Cited – Safeway Stores Ltd and Others v Twigger and Others ComC 15-Jan-2010
. .
Cited – Askey v Golden Wine Co Ltd 1948
Denning J said: ‘It is, I think, a principle of our law that the punishment inflicted by a criminal court is personal to the offender, and that the civil courts will not entertain an action by the offender to recover an indemnity against the . .
Cited – Columbia Pictures Industries Inc v Robinson ChD 1986
The plaintiff had obtained an Anton Piller order against a defendant whose business consisted almost entirely in the manufacture and sale of pirated videos.
Held: The injunction had been obtained for an improper purpose and without full . .
Cited – State Rail Authority of New South Wales v Wiegold 1991
(New South Wales) The plaintiff was seriously injured in an industrial accident caused by the defendant’s negligence. At first he received payments of worker’s compensation but when these ceased he took to supplementing his income by growing and . .
Cited – United Project Consultants Pte Ltd v Leong Kwok Onn 16-Aug-2005
(Supreme Court of Singapore – Court of Appeal) A taxpayer sought to recover from his accountant an administrative penalty under a statutory provision dealing with the innocent submission of an incorrect tax return.
Held: In determining whether . .
Cited – Vita Food Products Inc v Unus Shipping Co Ltd PC 30-Jan-1939
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, . .
Cited – Brown Jenkinson and Co Limited v Percy Dalton (London) Limited CA 1957
The claimants owned a vessel on which the defendants shipped a cargo of orange juice, packed in barrels which were old, frail and leaky. The claimants said they would issue a claused bill of lading stating the defects in the barrels. The defendants . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .

Cited by:

Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Intellectual Property

Leading Case

Updated: 02 May 2022; Ref: scu.538150

Parkinson v College of Ambulance Ltd and Harrison: 1925

the plaintiff made a donation to a charity to secure a knighthood. When the honour failed to materialise he sued for the return of his money. The claim was rejected. Lush J said that ‘no Court could try such an action and allow such damages to be awarded with any propriety or decency.’

Judges:

Lush J

Citations:

[1925] 2 KB 1

Jurisdiction:

England and Wales

Cited by:

Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 02 May 2022; Ref: scu.553656

St John Shipping Corporation v Joseph Rank Limited: 1956

The defendants held a bill of lading for part of the cargo carried on the plaintiffs’ vessel from Mobile, Alabama, to Birkenhead. The vessel was over laden and the plaintiffs were guilty of an offence under the 1932 Act. The defendants relied on the plaintiffs’ illegality in the performance of the contract as a ground for refusal to pay the freight otherwise due. The court was concerned with a breach of statute, and the performance of a contract in breach of that statute.
Held: The mere fact that the vessel was over laden did not preclude the plaintiffs from enforcing their claim for freight The question was answered in relation to performance by asking whether the statute intended to prohibit the type of contract sued on. On the construction of the relevant statute that it did not. There are two types of case where illegality renders a contract unenforceable from the outset. One is where the contract is entered into with the intention of committing an illegal act; the other is where the contract is expressly or implicitly prohibited by statute.
Devlin J said: ‘There are two general principles. The first is that a contract which is entered into with the object of committing an illegal act is unenforceable. The application of this principle depends on proof of the intent, at the time the contract was made, to break the law; if the intent is mutual the contract is not enforceable at all, and, if unilateral, it is unenforceable at the suit of the party who is proved to have it.’
. . And ‘Persons who deliberately set out to break the law cannot expect to be aided in a court of justice, but it is a different matter when the law is unwittingly broken. To nullify a bargain in such circumstances frequently means that in a case – perhaps of such triviality no authority would have felt it worthwhile to prosecute – a seller, because he cannot enforce his civil rights, may forfeit a sum vastly in excess of any penalty that a criminal court would impose; and the sum forfeited will not go into the public purse but into the pockets of someone who is lucky enough to pick up the windfall or astute enough to have contrived to get it. It is questionable how far this contributes to public morality.’ and ‘In the statutes to which the principle has been applied, what was prohibited was a contract which had at its centre – indeed often filling the whole space within its circumference – the prohibited act; contracts for the sale of prohibited goods, contracts for the sale of goods without accompanying documents when the statutes specifically said there must be accompanying documents; contracts for work and labour done by persons who were prohibited from doing the whole of the work and labour for which they demanded recompense.’

Judges:

Devlin J

Citations:

[1957] 1 QB 267, [1956] 3 All ER 683

Statutes:

Merchant Shipping (Safety and Load Line Conventions) Act 1932 44 57

Jurisdiction:

England and Wales

Citing:

Cited – Anderson Ltd v Daniel 1924
A claim for the price of goods was held to be unenforceable because the seller had failed to give the buyer an invoice containing details which the seller was required to give him by statute. . .

Cited by:

Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Colen and Another v Cebrian (UK) Limited CA 20-Nov-2003
The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
Held: The contract . .
Cited – Skilton v Sullivan CA 18-Mar-1994
The seller of a quantity of Koi carp sent the buyer an invoice for trout. The supply of Koi carp is chargeable to VAT but the supply of trout is not. When the seller sued for the price, he was met with a plea that the contract was illegal as being a . .
Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – Royal Boskalis Westminster NV and others v Mountain and others CA 28-Feb-1997
Effect of illegality on a contract.
Held: Reversed . .
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 . .
Cited – Garbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
Cited – Hughes v Asset Managers Plc CA 13-May-1994
The appellants had entered into discretionary investment management agreements wth the respondent. The investments made a substantial losss which the appellants sought to recover, saying that the agreements were void under the 1958 Act.
Held: . .
Cited – Joseph and Others v Spiller and Another CA 22-Oct-2009
The claimants, members of a rock band, alleged defamation by the defendants on their web-site. The defendants provided booking services. They said that the claimants were unreliable in failing to meet their contractual obligations. Their terms . .
Cited – Parkingeye Ltd v Somerfield Stores Ltd CA 17-Oct-2012
The claimant company operated parking management for the defendant, charging customers for overparking. The defendant came to believe that the claimant’s behaviour was over-aggressive, and the use of falsehoods, and terminated the contract. The . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 May 2022; Ref: scu.189938

Bowmakers Ltd v Barnet Instruments Ltd: CA 1945

An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal contract pursuant to which it had hired the goods to the defendant. A party to an illegality can recover by virtue of a legal or equitable property interest if, but only if, he can establish his title without relying on his own illegality. The court stated the general rule that a man’s right to possession of an article will be enforced notwithstanding the fact that the article came into his possession by reason of an illegal contract. ‘a man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them or has converted them to his own use, even though it may appear from the pleadings, or in the course of the trial, that the chattels in question came into the defendant’s possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim.’ and ‘It must not be supposed that the general rule which we have stated is subject to no exception. Indeed there is one obvious exception, namely that class of cases in which goods claimed are of such a kind that it is unlawful to deal in them at all, as for example, obscene books. No doubt there are others, but it is unnecessary, and would we think be unwise, to seek to name them all or to forecast the decisions which would be given in a variety of circumstances which may hereafter arise’.
‘We are satisfied that no rule of law, and no considerations of public policy, compel the court to dismiss the plaintiffs’ claim in the case before us, and to do so would be, in our opinion, a manifest injustice.’

Judges:

du Parq LJ

Citations:

[1945] KB 65

Jurisdiction:

England and Wales

Citing:

Cited – Curtis v Perry 10-Mar-1802
Fraudulent Registrations Ineffective
Ships had been purchased by a partnership, but were then held separately in the name of one of them. Only later were they included within the partnership accounts, but the separate registrations were maintained, and unlawfully so as to avoid them . .

Cited by:

Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Costello v Chief Constable of Derbyshire Constabulary CA 22-Mar-2001
The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .
Cited – Gray v Thames Trains Ltd and Another CA 25-Jun-2008
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract, Torts – Other

Leading Case

Updated: 02 May 2022; Ref: scu.194100

Vita Food Products Inc v Unus Shipping Co Ltd: PC 30 Jan 1939

(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, but the action was brought in Nova Scotia where the courts had to apply the proper law of the contract contained in its bill of lading – English law – by which the exemption clause was valid. Lord Wright: ‘But whatever view a Newfoundland Court might take, whether they would hold that the contracts contained in the bills of lading must be taken to have incorporated the Hague Rules or whether they would hold them to have been illegal, the result would be the same in the present case, where the action was brought not in a Newfoundland but in a Nova Scotian Court. It may be that, if suit were brought on these bills of lading in a Newfoundland Court, and the Court held they were illegal, the Court would refuse to give effect to them, on the basis that a Court is bound to obey the laws of its own Legislature or its own common law . . But it does not follow that any other Court could properly act in the same way. If it has before it a contract good by its own law or by the proper law of the contract, it will in proper cases give effect to the contract and ignore the foreign law.’
Lord Wright said: ‘Each case has to be considered on its merits. Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.’

Judges:

Lord Wright

Citations:

[1939] AC 277, [1939] UKPC 7

Links:

Bailii

Jurisdiction:

Canada

Cited by:

Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction

Updated: 02 May 2022; Ref: scu.228196

Smith v Cox: 1942

The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed to obtain the rent, he distrained and recovered andpound;180, which was the rent due, less deductions for repairs. The plaintiff sued for damages, contending that the distraint was unlawful because the rent had been paid by the defendant. He admitted that the rent was paid without his knowledge and not at his request.
Held: The judge found for the defendant. There was no evidence that: ‘the defendant acted or purported to act or regarded himself as acting as the agent of the plaintiff. The view which I take of this transaction is that the defendant did no more than advance out of his own pocket to an elderly impecunious landlord money which he did not wish her to be without for any length of time and so he took the risk of recouping himself later on. That being so, this action must fail because it is based on the allegation that there was an illegal distress, on the ground that the plaintiff had paid his rent or that somebody had paid it for him.’ As between a tenant and a landlord, if a stranger or third person purported to make a discharge of rent, the landlord was entitled to reject the payment.

Judges:

Humphreys J

Citations:

[1942] 2 KB 558

Citing:

Applied – Simpson v Eggington 9-Feb-1855
It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 01 May 2022; Ref: scu.276501