Category: Contract

Dickinson v Dodds: 1876

An offeree cannot accept a withdrawable offer after he has learnt, by whatever means, that it has been withdrawn. The communication of acceptance of an offer need not come from the offeree himself.

Citations:

[1876] 2 Ch 463

Jurisdiction:

England and Wales

Cited by:

Cited – Holwell Securities Ltd v Hughes CA 5-Nov-1973
An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.276455

in Re 88 Berkeley Road, NW 9: 1971

When considering the meaning of service of a notice under an option agreement, ‘served’ must mean ‘given’.

Judges:

Justice Plowman

Citations:

[1971] Chd 648

Cited by:

Cited – Holwell Securities Ltd v Hughes CA 5-Nov-1973
An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.276454

British American Telegraph C v Colson: 1871

Judges:

Lord Bramwell

Citations:

[1871] LR 6 Exc 108

Jurisdiction:

England and Wales

Cited by:

Overruled – Household Fire Insurance Co v Grant CA 1879
. .
Cited – Holwell Securities Ltd v Hughes CA 5-Nov-1973
An option was to be exercised ‘by notice in writing’ before a certain date. The solicitors’ letter doing so was addressed to the defendant at his residence and place of work, the house which was the subject of the option to purchase, was posted by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.276456

Branca v Cabarro: CA 1947

The fact that the parties might contemplate the possibility of a further written agreement, does not prevent an original agreement being effective as a contract.

Citations:

[1947] KB 857

Cited by:

Cited – City Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
Cited – Hutchison and others v B and DF Ltd ChD 3-Oct-2008
The claimants sought an order declaring that the defendant had a tenancy and requiring it to execute an appropriate lease. The landlords said that the tenant had a continuation lease under the 1954 renewal procedure, and the tenants said they had . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.276217

Transworld Oil Ltd v North Bay Shipping Corpn (The Rio Claro): 1987

Staughton J said that for a loss arising from a breach of contract to be recoverable: ‘It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise nature of the loss does not have to be in his contemplation, It is sufficient that he should have contemplated loss of the same type or kind as that which in fact occurred. There is no need to contemplate the precise concatenation of circumstances which brought it about’.

Judges:

Staughton J

Citations:

[1987] Lloyd’s Rep 173

Cited by:

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

Damages, Contract

Updated: 01 May 2022; Ref: scu.270784

Oceano Grupo Editorial SA v Quintero: ECJ 2000

The court asked whether, in a case brought against an individual consumer, the court could investigate the unfairness of the relevant term of the contract at issue of its own motion.
Held: In such a case the court could act of its own motion. In this case the term was unfair. Article 7(2) refers to a ‘decision’ by a court or an administrative authority as to whether a term is unfair.

Citations:

[2000] ECR I-4941

Statutes:

Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts 7(2)

Jurisdiction:

European

Cited by:

Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Lists of cited by and citing cases may be incomplete.

European, Consumer, Contract

Updated: 01 May 2022; Ref: scu.271000

Laksmijt v Faiz Sherani: PC 1974

Lord Cross of Chelsea said: ‘where a party has a right to rescission he must make an election whether or not to exercise it. The party must make it unequivocally clear that the agreement is at an end. It is only in these circumstances that the consequences of termination follow.’

Judges:

Lord Cross of Chelsea

Citations:

[1974] AC 605

Contract

Updated: 01 May 2022; Ref: scu.269656

Re Hooley Hill Rubber and Royal Insurance Co: CA 1920

When interprting a contract, it is assumed that the draftsman works with a view to certainty of sense and standardisation of terms. Bankes LJ said: ‘Courts should be chary in interfering with the interpretation given to a well-known document and acted on for any considerable period of time.’ and ‘The decision in Stanley v Western LR 3 Ex 71, 74, 75 has been unchallenged and presumably acted on for fifty years, and even if I did not agree with the view there expressed I should hesitate before overruling it.’
Scrutton LJ said that he felt bound to read the words of the condition at issue in the light of existing English decisions.

Judges:

Bankes LJ, Scrutton LJ

Citations:

[1920] 1 KB 257

Cited by:

Cited – Toomey v Eagle Star Insurance Co Ltd CA 1994
The word ‘reinsurance’ is often used loosely simply to describe any contract of insurance which is placed by or for the benefit of an insurer, but it should be construed more properly to require the insurance of an insurable interest in the subject . .
Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – Sunport Shipping Limited, Prometheus Maritime Corporation, Celestial Maritime Corporation, Surzur Overseas Limited v Tryg-Baltica International (UK) Ltd (Formerly Know As Colonia Baltica Insurance Ltd) and others CA 24-Jan-2003
(The ‘Kleovoulos of Rhodes’) A large quantity of cocaine was discovered by divers behind a grille in a sea chest at the vessel’s discharge port, Aliveri – having been placed there by unknown third persons at the load port in Colombia, South America. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 01 May 2022; Ref: scu.270261

Kish v Taylor: 1912

The parties had contracted for a voyage charter.
Held: A contract of affreightment was not put an end to by a breach of the stipulation of seaworthiness. Lord Atkinson said: ‘The fact that a ship is not in a fit condition to receive her cargo or is from any cause unseaworthy when about to start on her voyage will justify the charterer or holder of the bill in repudiating his contract and refusing to he bound by it.’ It was not relevant to consider the extent and nature of the unfitness or the time and circumstances in which it could be rectified.

Judges:

Lord Atkinson

Citations:

[1912] AC 604

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.266194

Tully v Howling: 1877

The parties contracted for a charter of twelve months. The owner could make it available only for ten.
Held: The ship was not fit for the purpose for which she was chartered and could not be made fit within any time which would not have frustrated the object of the adventure.

Citations:

[1877] 2 QB 182

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.266195

Meisels v Lichtman and Another: QBD 9 Apr 2008

The court considered gifts to charity: ‘Where there is a dispute it seems to me that it is the intentions of the donor nor that will be crucial, rather than the more familiar exercise of ascertaining the intentions of both parties in construing the agreement’.

Judges:

Blake J

Citations:

[2008] EWHC 661 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dewar v Dewar ChD 1975
The court was asked whether a payment of pounds 500 by their mother to one of two brothers who were the litigants was to be treated as a gift or as a loan. The evidence showed that the mother always intended it to be a gift, that the son wanted to . .

Cited by:

Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Contract, Charity

Updated: 01 May 2022; Ref: scu.266532

Levy v Stogdon: 1898

Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld.

Judges:

Stirling J

Citations:

(1898) 1 Ch.478

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 May 2022; Ref: scu.259716

Finelvet AG v Vinava Shipping Co Ltd (“The Chrysalis”): 1983

The Chrysalis was trapped in the Shatt-al-Arab waterway in the course of the Iran-Iraq war, and the parties disputed the frustration of the charter contract.
Held: Mustill J set out stages for considering an appeal from an arbitration award by differentiating between points of law and of fact: ‘Starting therefore with the proposition that the court is concerned to decide, on the hearing of the appeal, whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as the present, the answer is to be found by dividing the arbitrator’s process of reasoning into three stages:
(1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute.
(2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached.
(3) In the light of the facts and the law so ascertained, the arbitrator reaches his decision.
In some cases, the third stage will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In other instances, however, the third stage involves an element of judgment on the part of the arbitrator. There is no uniquely ‘right’ answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong.’
Only items at stage 2 are properly appealable: ‘The second stage of the process is the proper subject matter of an appeal under the 1979 Act. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator has arrived at another: and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct – for the Court is then driven to assume that he did not properly understand the principles which he had stated.
Whether the third stage can ever be the proper subject of an appeal, in those cases where the making of the decision does not follow automatically from the ascertainment of the facts and the law, is not a matter upon which it is necessary to express a view in the present case. The Nema and The Evia show that where the issue is one of commercial frustration, the Court will not intervene, save only to the extent that it will have to form its own view, in order to see whether the arbitrator’s decision is out of conformity with the only correct answer or (as the case may be) lies outside the range of correct answers. This is part of the process of investigating whether the arbitrator has gone wrong at the second stage. But once the Court has concluded that a tribunal which correctly understood the law could have arrived at the same answer as the one reached by the arbitrator, the fact that the individual judge himself would have come to a different conclusion is no ground for disturbing the award.’

Judges:

Mustill J

Citations:

[1983] 1 WLR 1469, [1983] 1 Lloyds Rep 503

Statutes:

Arbitration Act 1979 1(3)

Cited by:

Cited – Penwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
Cited – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 01 May 2022; Ref: scu.260257

Rose v Watson: HL 7 Mar 1864

The buyer had paid deposits under an unconditional contract for the purchase of land induced by the misrepresentations of the seller. On discovering the falsity of the representations the buyer rescinded the contract and successfully resisted a claim for specific performance made against him. He now claimed against the vendor’s successors in title to the land contracted to be sold the purchasers asserting a lien over that land to secure the repayment to them of the deposits paid under the contract.
Held: The purchasers’ claim succeeded. He was entitled, so far as the payments extended, to claim a lien on the estate for their amount, and to enforce that claim against the assignees of the vendor.
Lord Westbury said: ‘I think that your Lordships will agree with me that the case is determinable by principles which are very simple and very clear, and which have long been established in the Courts.
When the owner of an estate contracts with a purchaser for the immediate sale of it, the ownership of the estate, is in equity, transferred by that contract. Where the contract undoubtedly is an executory contract, in this sense, namely, that the ownership of the estate is transferred, subject to the payment of the purchase-money, every portion of the purchase-money paid in pursuance of that contract is a part performance and execution of the contract, and, to the extent of the purchase-money so paid, does, in equity, finally transfer to the purchaser of the ownership of a corresponding portion of the estate.
My Lords, that being so, we have only to inquire under the terms of the present contract whether the sums of money paid by the Respondent were, or were not, paid in pursuance of that contract. About that, my Lords, there is no controversy whatsoever. They were bona fide payments made by the Respondent, in conformity with the contract which required such payments to be made in part of the purchase-money; and they were accepted by the vendor as portions of that purchase-money. In conformity, therefore, with every principle, the purchaser paying the money acquired an interest in the estate by force of the contract and of that part performance of the contract, namely, the payment of that portion of the purchase-money.
Then, my Lords, if that contract fails, and the failure is not to be attributed to any misconduct or default on the part of the purchaser, the obvious question arises, is the purchaser to be deprived of the interest in the estate which he has acquired by that bona fide payment? And yet, my Lords that he ought to be so deprived is the whole controversy of the Appellants at your Bar. ‘
Lord Cranworth said: ‘There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate. When, instead of paying the whole of his purchase-money, he pays a part of it, it would seem to follow, as a necessary corollary, that, to the extent which he has paid his purchase-money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if upon the payment of part of the purchase-money the vendor had executed a mortgage to him of the estate to that extent.
It seems to me that this is founded upon such solid and substantial justice, that if it is true that there is no decision affirming that principle, I rejoice that now, in your Lordships’ House, we are able to lay down a rule that may conclusively guide such questions for the future.’

Judges:

Lord Westbury, Lord Cranworth

Citations:

(1864) 10 HLC 671, (1864) 33 LJCh 385, [1864] EngR 300, (1864) 10 HLC 672, (1864) 11 ER 1187

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 May 2022; Ref: scu.259714

Kettlewell v Watson: 1884

A vendor’s lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings.

Citations:

(1884) 26 Ch D 501

Cited by:

Analysed – Barclays Bank Plc v Estates and Commercial Limited CA 20-Feb-1996
Millett LJ discussed the assertion of a vendor’s lien where a third party would be adversely affected: ‘A party with an equitable charge can be taken to agree to the postponement of his property against any party who was allowed to his knowledge to . .
Cited – Bank of Scotland Plc v King and others ChD 23-Nov-2007
The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 May 2022; Ref: scu.261517

The Leonidas D: 1985

The abandonment of a reference to arbitration might be sufficient consideration for the formation of a contract.

Citations:

[1985] 1 WLR 925

Cited by:

Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.261938

Watkins v Nash: 1875

The instrument at issue was delivered to the solicitor acting for the party intended to benefit under it. It was claimed that it was delivered in escrow.
Held: On the detailed facts the delivery was not intended to be a delivery to the grantee, but was to the solicitor who was to hold the deed in an incomplete state for the benefit of all the parties to the transaction. Thus the instrument was not delivered as a deed but was in escrow only. For a delivery of a document to be in escrow, it must normally be made to a stranger to the contract.

Citations:

(1875) LR 20 Eq 262

Cited by:

Qualified – Bank of Scotland Plc v King and others ChD 23-Nov-2007
The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.261512

Middleton v Magnay: 1864

The vendor had agreed to grant a 21 year lease over certain land. In fact he only had an eight year lease in half the land. When the contract went off on account of the inability of the vendor to grant the lease contracted for the purchaser claimed a lien to secure repayment to him of expenditure on improvements undertaken by him pursuant to a term in the contract.
Held: The claim succeeded to the extent of the vendor’s interest. In law the contract took effect as one to assign such interest as the vendor did have.

Judges:

Page-Wood V-C

Citations:

(1864) 2 HandM 233

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 May 2022; Ref: scu.259720

Biggs v Hoddinott: 1898

The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money.

Citations:

[1898] 2 Ch 307

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – Noakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 May 2022; Ref: scu.259691

English Hop Growers v Dering: CA 1928

The defendant farmer had agreed to sell his crop of hops to the Society for five years. He failed to do so and was sued. He replied that the contract was in restraint of trade.
Held: The restraint was reasonable. Scrutton LJ allowed that it might have been a contract in restraint of trade, but this was not just an ordinary agreement, it was rather a marketing scheme accepted by the great majority of English hop growers.

Judges:

Scrutton LJ

Citations:

[1928] 2 KB 174

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.259688

Lipkin Gorman (a Firm) v Karpnale Ltd: 1987

A partner in the plaintiff firm of solicitors stole money from them and spent it gambling in the defendant’s casino. The plaintiff cought to recover the money from the defendant, saying that as a gambling debt, no consideration had been given. They sought recovery also from their bankers, who had paid out on firm’s cheques drawn for Cash. At other times, cheques were made payable to a building society from whose account the partner withdrew the proceeds, and at other times, the cheques were made payable to the bank itself. The bank’s branch manager had knowledge of the partner’s gambling activities and was aware that the method used for the drawing of the cheques was unusual, but he had failed to inform the other partners in the solicitors’ firm.
Held: The court declined to extend the categories of quasi contract so as to enable the firm to recover the stolen money from the person to whom the thief has lost it gambling, but the contracts under which the club received the stolen money were void under section 18 of the Act of 1845 and the club was in no better position than a donee. On principle and on authority a donee is bound to reimburse the victim for stolen money received and retained by the donee and, in the circumstances, the club was unjustly enriched to the extent that the solicitors’ money was retained by the club.
Alliott J set out the principles underlying whether a bank can rely upon the authority of an authorised signatory: ‘(1) the bank is entitled to treat the customer’s mandate at its face value, save in extreme cases;
(2) the bank is not obliged to question any transaction which is in accordance with the mandate, unless a reasonable banker would have grounds for believing that the authorised signatories are misusing their authority for the purpose of defrauding their principals or otherwise defeating his true intention;
(3) it follows that, if a bank does not have reasonable grounds for believing that there is fraud, it must pay;
(4) mere suspicion or unease do not constitute reasonable grounds and are not enough to justify a bank in failing to act in accordance with a mandate; and
(5) a bank is not required to act as an amateur detective.’
The Bank, knowing that the partner, because of his gambling, was in financial difficulty, had reasonable grounds for believing that he was fraudulently withdrawing sums from the partnership account. Quite independently of contract, the Bank was also held in breach of duty to the other partners, in honouring cheques drawn by the gambling partner. The Bank was liable as constructive trustee for rendering knowing assistance to the gambling partner.

Judges:

Alliott J

Citations:

[1987] 1 WLR 987, [1992] 4 All ER 313

Jurisdiction:

England and Wales

Cited by:

At first instance – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
At first Instance – Lipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
Cited – Barclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Banking

Updated: 01 May 2022; Ref: scu.259421

Tamplin Steamship Co Ltd v Anglo Mexican Petroleum Co: 1916

Lord Loreburn formulated the doctrine of frustration as based on the answer to the question: ‘What in fact is the true meaning of the contract?’

Judges:

Lord Loreburn

Citations:

[1916] 2 AC 397

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.259071

Atisa SA v Aztec AG: 1983

The sellers sold to the buyers 13,000 -14,000 tonnes of Kenyan white crystal sugar fob stowed Mombasa, subject to the rules of the Refined Sugar Association including that the sellers were to obtain an export licence and that failure to obtain such a licence was not to be a ground of force majeure. The sellers expected to deliver sugar purchased under a nearly matching contract with the Kenyan Government which was the only source of supply. The Kenyan Government failed to honour this contract claiming it was not binding for lack of authority and the buyers instituted arbitration proceedings for non-delivery.
Held: Parker J upheld the arbitrators’ award that the contract had not been frustrated. He said: ‘There was, here, no change in the law and nothing of the nature of a failure or destruction of the subject matter. At all times an export licence was required and the risk of being unable to obtain one was upon the sellers. No doubt they would certainly have been provided with one by the government had it decided to proceed with K G Ex 10. No doubt also the government would not have provided one having decided not to proceed but that circumstance does not affect the matter. In essence no more has happened than that (1) the sellers’ supplier which was the sole supplier did not wish to supply partly for financial reasons and partly to preserve the build up of stocks and (2) that, having been advised that the contract was not binding, the supplier refused to perform. If the Attorney-General’s advice was correct the sellers failed to make a proper supply contract. If it was incorrect then they will have an action on upon the supply contract. ‘

Judges:

Parker J

Citations:

[1983] 2 Lloyds Rep 579

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.259369

Intertradex SA v Lesieur Tourteraux SARL: 1978

The parties contracted to sell a quantity of Mali groundnut expellers cif Rouen. The sellers intended to perform the contracts by appropriating a quantity of Mali groundnut expellers under a contract with suppliers who were the sole producers of the contract goods. Due to an electrical fault and to interruptions in the supply by rail of raw materials, the suppliers were unable to meet their commitments to the sellers who in turn were unable to supply the contract quantity to the buyers.
Held: The appeal failed. The contracts had not been frustrated. It is the seller who can guard against the risk by protecting himself by making his promise conditional on the goods being available for delivery.
Lord Denning MR said: ‘The events were not sufficient to warrant any finding of frustration. There was the breakdown of the machinery at the factory. There was the difficulty in getting raw material down by rail. Such events are commonplace in the world of affairs. If a party desires to avoid such consequences, he must insert a stipulation to excuse him. He cannot avoid them by a plea of frustration.’

Judges:

Lord Denning MR

Citations:

[1978] 2 Lloyds Rep 509

Citing:

Appeal from – Intertradex SA v Lesieur Tourteraux SARL QBD 1977
The court held as frustrated a contract for the sale of Mali groundnuts, where interruptions in elecricity supplies and other faults prevented the sellers from delivering their promise. . .

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.259371

Flight v Booth: 24 Nov 1834

The auction particulars stated that the land was subject to covenants restricting use of the property for certain offensive purposes. After successfully bidding it was shown to be subject to other substantial restrictions against non-ofensive trades also.
Held: The purchaser was entitled to rescind the contract and recover his deposit. Even though a misdescription may be unintended, where it is a material and substantial point, and a court could infer that the purchaser would not have bid for the property, the purchaser is not restricted to recovering compensation but may choose to rescind.

Judges:

Tindal CJ

Citations:

[1834] 1 Bing NC 370, [1834] 1 Scott 190, [1834] 131 ER 1160, [1834] EngR 1087

Links:

Commonlii

Cited by:

Applied – In re Puckett and Smith’s Contract CA 1902
Land was sold for redevelopment after being described as fit for building, and the vendor knew that this was the purchaser’s intention. The contract said that the purchaser should rely on his own inspection, and that the vendor should not be liable . .
Cited – Cleaver and Others v Schyde Investments Ltd CA 29-Jul-2011
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 May 2022; Ref: scu.252354

Howatson v Webb: CA 1908

The court accepted a plea of non est factum, approving the distinction made by the trial judge between the approval of the contents and the character of the deed executed. Cozens-Hardy MR said that he approved every word of Warrington J’s judgment.

Judges:

Cozens-Hardy MR

Citations:

[1908] 1 Ch 1

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.253146

York Glass Co Ltd v Jubb: 1924

The defendant denied liability under contract, after the vendor brought an action against against the committee of his estate as a person of unsound mind. He said that the fact that he was of unsound mind was known to vendor, and later that the vendor knew that he was infirm of mind and body and incapable of managing his affairs reasonably and properly, that the price was excessive, that he had no legal advice and that there was no reasonable degree of equality between the contracting parties.
Held: the first defence was a plea in law, the second raised a case for rescission in equity. ‘It is well settled that where the defendant in an action of contract sets up the defence of his insanity at the date of the contract he must, in order to succeed, show that the plaintiff knew of his insanity.’ The defendant had not shown that the company knew of the unsoundness of mind. As to te plea in equity: ‘In the result, after having carefully considered the whole of the evidence in support of this part of the case, I have come to the conclusion and hold as a fact that there was no want of fairness either in the terms of the contract itself or in the circumstances under which it was made, and I acquit all the persons concerned in the transaction on behalf of the plaintiff company from the charge made against them of having overreached or exercised any undue influence over the defendant.’

Citations:

[1924] 131 LT Rep 559

Cited by:

Appeal from – York Glass Co Ltd v Jubb CA 1925
The vendor sought to enforce a contract. The court had rejected the defendant’s plea first that the vendor knew of his incapacity, and that therefore the contract was void, and that second, the contract should not be enforced in equity because of . .
Cited – Archer v Cutler 1980
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental . .
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.252450

Shulter’s Case: 1611

Where a blind or illiterate person (here 115 years old) had a deed read over to him before it was signed, but he was mislead, he could plead non est factum.

Citations:

(1611) 12 Co Rep 90, 77 ER 1366

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.253154

De Lassalle v Guildford: CA 1901

The court was asked whether a representation amounts to a warranty or not.
Held: AL Smith MR said: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.’

Judges:

AL Smith MR

Citations:

[1901] 2 KB 215

Jurisdiction:

England and Wales

Cited by:

Cited – Record v Bell ChD 21-Dec-1990
Contracts for the sale of a house were about to be exchanged but office copy entries of the vendor’s title at the Land Registry had not yet been supplied. The solicitors agreed that contracts would be exchanged on the basis of a warranty that office . .
Criticised – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Cited – Jones and Another v Forest Fencing Limited CA 21-Nov-2001
The sellers of and disputed an order as to whether electrical equipment at the site hd been included in the contract.
Held: ‘the answer to the question ‘what meaning should be given to the words used in the memorandum’ cannot, I think, be a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.252312

Kingston v Ambrian Investment Co Ltd: 1975

Once a party has delivered a document in escrow, he must await the conditional event before he can recall the deed.

Citations:

[1975] 1 WLR 161

Cited by:

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

Contract

Updated: 01 May 2022; Ref: scu.252350

Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd: CA 1969

The parties, one in England and one in Scotland agreed to perform certain actions in Scotland. Any dispute was to be settled by arbitration, but it was not said whether this would be in England or Scotland. The curial law of arbitration would decide whether an appeal lay to the High court in England or the Court of Session In Scotland.
Held: The crucial question in determining what was the law governing the contract was to ask: ‘what is the system of law with which the transaction has the closest and most real connection? ‘
Lord Denning MR: ‘I am confirmed in this view by the subsequent conduct of the parties. This is always available to aid the interpretation of a contract and to find out its closest connections. On two occasions the parties seem to have assumed that the transaction was governed by English law.’
Widgery LJ agreed that English was the proper law of the contract: ‘To solve a problem such as arises in this case one looks first at the express terms of the contract to see whether that intention is there to be found. If it is not, then in my judgment the next step is to consider the conduct of the parties to see whether that conduct shows that a decision in regard to the proper law of the contract can be inferred from it. If the parties’ conduct shows that they have adopted a particular view with regard to the proper law, then it may be inferred that they have agreed that that law shall govern the contract accordingly.’

Judges:

Lord Denning MR, Davies LJ

Citations:

[1969] 1 WLR 377

Jurisdiction:

England and Wales

Cited by:

Appeal from – Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd HL 1970
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Lexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.251074

In re Miller’s Agreement, Uniacke v Attorney-General: ChD 1947

Two partners had covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue claimed estate duty.
Held: The claim was rejected. The daughters were not parties to the agreement, and had no right to sue for their annuities. Whether they received them or not depended on whether the other partners were willing to pay or if they did not pay whether the deceased partner’s executor was willing to enforce the contract. After citing the earlier cases Wynn-Parry J. said: ‘I think it emerges from these cases that the section has not the effect of creating rights but only of assisting the protection of rights shewn to exist.’

Judges:

Wynn-Parry J

Citations:

[1941] 1 Ch 615

Statutes:

Law of Property Act 1925 56

Citing:

Cited – In re Foster 1938
. .

Cited by:

Criticised – Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board CA 1949
Benefit of Covenant Ran with Land
In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in . .
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Contract, Inheritance Tax

Updated: 01 May 2022; Ref: scu.251042

Keenan v Handley: 1864

The court considered the availability of specific performance as a remedy to a personal representative.

Citations:

1864 12 WR 1021

Cited by:

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

Litigation Practice, Contract, Wills and Probate

Updated: 01 May 2022; Ref: scu.251047

Stevenson v MacDonald: 1952

Denning J described the difference between a contract of service and a contract for services: ‘It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies. A ship’s master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract, of service; but a ship’s pilot, a taximan, and a newspaper contributor are employed under a contract for services’.

Judges:

Denning J

Citations:

(1952) 1 TLR 101

Cited by:

Cited – Massey v Crown Life Insurance Company CA 4-Nov-1977
Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 01 May 2022; Ref: scu.250993

Tom Shaw and Co v Moss Empires Ltd: 1908

An actor, was engaged by Moss Empires under a contract which prohibited the assignment of his salary. He assigned 10 per cent of the salary to his agent, Tom Shaw. Tom Shaw sued Moss Empires for 10 per cent of the salary joining the actor as second defendant. Moss Empires agreed to pay the 10 per cent of the salary to Tom Shaw or B. as the court might decide i.e. in effect it interpleaded.
Held: The prohibition on assignment was ineffective: it could ‘no more operate to invalidate the assignment than it could interfere with the laws of gravitation.’ The plaintiffs succeeded against both the actor and Moss Empires, ordering the actor to pay the costs but making no order for costs against Moss Empires.

Judges:

Darling J

Citations:

(1908) 25 TLR 190

Jurisdiction:

England and Wales

Cited by:

Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.249320

Vandepitte v Preferred Accident Insurance Corp. of New York: PC 1933

The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be available to an authorised driver.
Held: The Board rejected the claim as there was no evidence that the father had contracted on behalf of anybody but himself nor that he intended to create a beneficial interest for his daughter. The policy expressly provided that it should benefit a third party (the daughter) and, in effect, a person injured by her negligent driving. However, if a trust is created and if the trust refuses to enforce an obligation, the beneficiary may sue for enforcement, joining the trustee as a defendant
Lord Wright: ‘No doubt at common law no one can sue on a contract except those who are contracting parties . . the rule is stated by Lord Haldane in Dunlop Pneumatic Tyre Co. v. Selfridge and Co.: ‘My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.’ In that case, as in Tweddle v Atkinson, only questions of direct contractual rights in law were in issue, but Lord Haldane states the equitable principle which qualifies the legal rule, and which has received effect in many cases, as, for instance, Robertson v. Wait; Affreteurs Reunis Societe Anonyme v. Leopold Walford (London), Ld.; Lloyd’s v. Harper – namely, that a party to a contract can constitute himself a trustee for a third party of a right under the contract and thus confer such rights enforceable in equity on the third party. The trustee then can take steps to enforce performance to the beneficiary by the other contracting party as in the case of other equitable rights. The action should be in the name of the trustee; if, however, he refuses to sue, the beneficiary can sue, joining the trustee as a defendant. But, though the general rule is clear, the present question is whether R.E. Berry can be held in this case to have constituted such a trust. But here again the intention to constitute the trust must be affirmatively proved: the intention cannot necessarily be inferred from the mere general words of the policy.’

Judges:

Lord Wright

Citations:

[1933] AC 70

Cited by:

Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Cited – Don King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
Cited – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 01 May 2022; Ref: scu.249314

Louis Dreyfus Trading Ltd v Reliance Trading Ltd: 2004

LD sold 7kmt sugar to R, C and FFO Banjul at $257.43 per mt. Shipment was ‘per m.v. Dawn currently discharging at Banjul’. An associate of R had already sold 5kmt to B at $290 per mt, for which the sugar was bought. LD knew of the resale and insisted that R buy the full 7kmt and B bought the extra 2kmt at $253 per mt. On August 17 payment was made by R to LD and by B to R for 3kmt. LD was responsible for a delayed discharge, and mean tme the price fell $224 per mt. R said that they would only take the 4,000 m.t. if a reduced price was applied to the whole 7kmt. LD treated R as in default in regards to the 4kmt. R sought damages at the difference between the contract price ($257.43) and the value of the goods when they eventually became available ($224). LD said that R had suffered no loss. They pointed out that R was to receive from B $290 for 5kmt and $253 for the balance and that it was likely that R had obtained payment for the 3kmt discharged at $290 per mt and Reliance had still profited. The arbitrators awarded R damages calculated as claimed.
Held: The profit or loss made by a buyer on a sub-sale is generally irrelevant to the assessment of damages for breach by a seller of a warranty of quality or failure to deliver; but that if the parties had a particular sub-sale within their contemplation when making their contract the buyer might be entitled to have that sub-sale brought into account to increase his damages or the seller might be entitled to have it brought into account in order to reduce the award against him. Where the parties anticiated when the contract was made that the buyer was committed to deliver the same goods to a sub-buyer under a specific contract, principles of remoteness did not require that the sub-sale be disregarded in assessing they buyer’s damages. It was to be taken to have been within the parties’ reasonable contemplation as a serious possibility, or a consequence not unlikely to result from LD being in breach of their obligations, that the loss suffered by R might depend on the impact of the sub-sale to B. The case was remitted to the arbitrators for reconsideration because it was apparent that they had not considered whether or not LD had rebutted the presumption that the damages should be assessed in accordance with section 53 (3) of the 1979 Act.

Judges:

Andrew Smith J

Citations:

[2004] 2 LLR 243

Statutes:

Sale of Goods Act 1979 52(3)

Cited by:

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

Contract, Damages

Updated: 01 May 2022; Ref: scu.246957

Yangtze Insurance Association v Indemnity Mutual Marine Assurance Co: CA 1908

The court considered the significance of a trade custom in interpreting a contract: ‘The general rule of construction is that words used in documents must receive their primary signification, unless the context of the instrument read as a whole, or surrounding contemporaneous circumstances, shew that the secondary meaning expresses the real intention of the parties, or unless the words are used in connection with some place, trade or the like, in which they have acquired the secondary meaning as their customary meaning quoad hoc’.

Judges:

Farwell LJ

Citations:

[1908] 2 KB 504

Jurisdiction:

England and Wales

Cited by:

Cited – Roche Products Ltd and Another v Kent Pharmaceuticals Ltd CA 20-Dec-2006
The defendant appealed summary judgment in a trade mark infringement case based on parallel imports of ACCU-CHEK blood testing strips for diabetics. The defendant said that the products were ‘CE’ marked and therefore intended for sale within the EU. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.247524

The Rio Claro: 1987

For a loss arising from a breach of contract to be recoverable, Staughton J said: ‘It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise nature of the loss does not have to be in his contemplation, It is sufficient that he should have contemplated loss of the same type or kind as that which in fact occurred. There is no need to contemplate the precise concatenation of circumstances which brought it about’.

Judges:

Staughton J

Citations:

[1987] 2 Lloyd’s Rep 173

Cited by:

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

Damages, Contract

Updated: 01 May 2022; Ref: scu.246864

The “Pegase”: 1981

The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single principle – though it is recognised that the application of the principle may depend on the degree of relevant knowledge held by the defendant at the time of the contract in the particular case’.

Judges:

Goff J

Citations:

[1981] I Ll Rep 175

Citing:

Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 01 May 2022; Ref: scu.246863

Meyer v Sanderson: 1913

The charterer had sent out the vessel on a further voyage even on the day when the charter was to come to an end. The owner sought damages.
Held: The charterers were ordered to ‘pay for the use of the steamer on that last voyage at the rate current at the time’.

Judges:

Atkin J

Citations:

[1913] 108 LT 428

Cited by:

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

Contract, Damages

Updated: 01 May 2022; Ref: scu.246741

Markham v Paget: 1908

Parties had entered an agreement, with a draft lease attached to lease a coal seam. If the company anticipated damage, the lease allowed the company to leave sections unmined as support. The final lease allowed the miners to let down the surface, but now asked the miners to request obtain consent before leaving any coal un-mined. The surface was then also let to the plaintiff on a yearly tenancy. The miners sought consent as agreed, but the consent was withheld, and they proceeded. The surface property was damaged, and the tenant sought damages.
Held: There was an implied covenant for quiet enjoyment in the lease of the house, but the owner of the land who was liable under that covenant could not seek an indemnity from the miner without joining in the trustees who had actually executed the lease.

Citations:

[1908] 98 LT 605, [1908] 24 LTR 426, [1908] 1 Ch 697, [1908] 77 LJ Ch 451

Jurisdiction:

England and Wales

Landlord and Tenant, Contract

Updated: 01 May 2022; Ref: scu.246064

British Motor Trade Association v Gray: 1951

The test for an allegation of wrongful interference in a contract required something more than a failure to act.

Judges:

Lord Russell, Lord President Cooper

Citations:

1951 SLT 247, 1951 SC 586

Cited by:

Cited – Mercedes Benz Finance Ltd v Clydesdale OHCS 16-Sep-1996
The creditor finance company complained that the customer had paid money into its account with the bank, in order to discharge its obligations by direct debit payments, but that the bank had refused to make the payments. The claimant argued that the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Torts – Other, Contract

Updated: 01 May 2022; Ref: scu.246216

Clark v BET plc: 1997

The court considered the assessment of damages in a wrongful dismissal case.
Held: A simple discretion whether to award a bonus must not be exercised capriciously by an employer.

Judges:

Timothy Walker J

Citations:

[1997] IRLR 348

Jurisdiction:

England and Wales

Cited by:

Cited – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Cited – Cantor Fitzgerald International v Horkulak CA 14-Oct-2004
The employee claimed under a bonus clause which ‘contained in a contract of employment in a high earning and competitive activity in which the payment of discretionary bonuses is part of the remuneration structure of employers.’
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 01 May 2022; Ref: scu.246219

Pritchard v Hitchcock: 6 Jun 1843

P (the plaintiff) had drawn bills requiring WH to pay P a sum of money three months after date. WH accepted them, but to gain more time for WH, GH (the defendant) guaranteed payment of the bills. P pressed for payment. WH did ultimately pay P but was declared bankrupt. WH’s assignees in bankruptcy brought an action against P and obtained recovery of the sum paid as a fraudulent preference. P then sued GH on the guarantee. One defence of GH was that P had been paid and the debt discharged. GH contended that the judgment in favour of the assignees was not admissible to prove non-discharge of the debt.
Held: P was entitled to prove in the circumstances payment by WH had not discharged the debt, but GH was not a party to the assignee action. The matter was ordered to be retried as to whether there had been ‘a real and genuine payment of the bills by the bankrupt.’

Citations:

(1843) 6 Man and G 151, [1843] EngR 760 (B)

Links:

Commonlii

Citing:

See Also – Cook And Others, Assignees Of Williams Hitchcock, A Bankrupt, v Pritchard 15-Jan-1843
. .

Cited by:

Cited – Lloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 01 May 2022; Ref: scu.246226

Clough v London and North Western Railway Co: 1871

When considering an application for rescission the court must ask whether the representee has elected to affirm the contract, elected to rescind the contract or made no election. Mellor J said: ‘In such cases the question is, has the person on whom the fraud was practised, having notice of the fraud, elected not to avoid the contract? Or has he elected to avoid it? Or has he made no election?
We think that so long as he has made no election he retains the right to determine it either way, subject to this, that if in the interval whilst he is deliberating, an innocent third party has acquired an interest in the property or if in consequence of his delay the position even of the wrongdoer is affected, it will preclude him from exercising his right to rescind.
And lapse of time without rescinding will furnish evidence that he has determined to affirm the contract, and when the lapse of time is great, it probably would in practice be treated as conclusive evidence to shew that he has so determined. But we cannot see any principle, and are not aware of any authority for saying that the mere fact that one who is a party to the fraud has issued a writ and commenced an action before the rescission is such a change of position as would preclude the defrauded party from exercising his election to rescind.’

Judges:

Mellor J

Citations:

[1871] LR 7 Exch 26

Jurisdiction:

England and Wales

Cited by:

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

Contract, Equity

Updated: 01 May 2022; Ref: scu.245564

Paperlight Limited v Swinton Group Limited: 1996

The court identified principles of construction for a franchise agreement, including that the franchisor’s covenant not to derogate from his grant amounted in this context to ‘really no more than an application of the contra proferentem rule’.

Judges:

Clarke J

Citations:

[1996] CLC 1667

Jurisdiction:

England and Wales

Cited by:

Cited – Stone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.244796

Larsen v Sylvester: HL 1908

A vessel was delayed by congestion for 9 days whilst waiting to load; she then loaded within the 84 hours allowed as laytime. The charterparty contained an exceptions clause which stated: ‘the parties hereto mutually exempt each other from all liability arising from floods . . and any other unavoidable accidents and hindrances of what kind soever beyond their control preventing or delaying the working, leading or shipping the said cargo occurring on or after the date of this charter until the actual completion of loading’.
Held: The ejusdem generis rule remains sound ‘both in law and as a matter of literary criticism’. However the inclusion of the words ‘of any other description’ at the end of a list precluded its application to this statute.

Citations:

[1908] AC 295, (1908) 96 LT 94

Jurisdiction:

England and Wales

Cited by:

Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 01 May 2022; Ref: scu.244719

Fairbanks v Snow: 1887

In each case where a party’s disposition has been set aside for duress or undue influence: ‘the party has been subjected to an improper motive for action.’

Judges:

Holmes J

Citations:

(1887) 13 NE 596

Jurisdiction:

England and Wales

Cited by:

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

Contract, Equity

Updated: 01 May 2022; Ref: scu.244661

Clarke v Dickson: 1858

The plaintiff brought his claim for money had and received by the purchaser of shares in a company. He said that he had been induced to purchase the shares by a fraudulent misrepresentation but he had failed in his action at common law.
Held: Erle J: ‘the plaintiff cannot avoid the contract under which he took the shares, because he cannot restore them in the same state as when he took them.’ Crompton J: ‘when once it is settled that a contract induced by fraud is not void, but voidable at the option of the party defrauded, it seems to me to follow that, when that party exercises his option to rescind the contract, he must be in a state to rescind it; that is, he must be in such a situation as to be able to put the parties into their original state before the contract . . . The plaintiff must rescind in toto or not at all; he cannot both keep the shares and recover the whole price. That is founded on the plainest principles of justice. If he cannot return the article he must keep it, and sue for his real damage in an action on the deceit.’

Judges:

Crompton J, Erle J

Citations:

(1858) EL BL and EL 148

Jurisdiction:

England and Wales

Cited by:

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

Equity, Contract

Updated: 01 May 2022; Ref: scu.244659

Kirschbaum v ‘Our Voices’ Publishing Co: 1971

(Ontario High Court) The court was asked whether discovery of letters written without prejudice should be permitted so that the parties might explore the question whether they contained admissions of fact which could be taken into account at the trial.
Held: They should. Contrary to popular belief the proposition that the shibboleth ‘without prejudice’ written on a letter protects it from subsequent use as an admission was not accurate: ‘[T]he question to be considered is, what was the view and intention of the party in making the admission; whether it was to concede a fact hypothetically, in order to effect a settlement, or to declare a fact really to exist.’

Judges:

Haines J

Citations:

[1971] 1 OR 737

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Limitation

Updated: 01 May 2022; Ref: scu.243125

In re Hoyle: CA 1893

ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol evidence, any writing embodying the terms of the agreement and signed by the person to be charged is sufficient’ and ‘the court is not in quest of the intention of the parties, but only of evidence under the hand of one of the parties to the contract that he has entered into it’ and ‘The question is not what is the intention of the person signing the memorandum but is one of fact, vis is there a note or memorandum of the promise signed by the party to be charged?’.

Judges:

AL Smith LJ

Citations:

[1893] 1 Ch 84

Statutes:

Statute of Frauds 1677 4

Jurisdiction:

England and Wales

Cited by:

Cited – Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
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: 01 May 2022; Ref: scu.241713

McBlain v Cross: 1871

The court considered the stautus under the 1677 statute in the case of a telegram which stated that it came from the sender and did so with his express authority.

Citations:

(1871) 25 LT 804

Statutes:

Statute of Frauds 1677 9

Jurisdiction:

England and Wales

Cited by:

Distinguished – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.241716

Caton v Caton: HL 1867

A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient note or memorandum signed by the parties to be bound within Section 4.
Held: It was not. There must be something, which can be regarded as a form of signature, which is voluntarily affixed to the document by way of authentication of it.
Lord Chelmsford C: ‘The cases on this point . . establish that the mere circumstances of the name of a party being written by himself in the body of a memorandum of agreement will not of itself constitute a signature. It must be inserted in the writing in such a manner as to have the effect of ‘authenticating the instrument’ or ‘so as to govern the whole instrument’ . . The name of the party, and its application to the whole of the instrument, can alone satisfy the requisites of a signature.
Lord Westbury said that if something was to be relied upon as a signature, it has to be: ‘ . . . so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument. . . It must govern every part of the instrument. It must shew that every part of the instrument emanates from the individual so signing, and that the signature was intended to have that effect. It follows that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum. ‘

Judges:

Lord Chelmsford C, Lord Westbury

Citations:

(1867) LR 2 HL 127

Statutes:

Staute of Frauds 1677 84

Jurisdiction:

England and Wales

Cited by:

Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
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 . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.241714

Reuss v Picksley: 1866

A written proposal was purportedly accepted orally. The requirements of the 1677 Statute were satisfied where a signed written offer containing the requisite terms was accepted orally by the other party.
Willes J said: ‘The only question is, whether it is sufficient to satisfy the statute that the party charged should sign what he proposes as an agreement, and that the other party should afterwards assent without writing to the proposal? As to this it is clear, both on reasoning and authority, that the proposal so signed and assented to, does become a memorandum or note of an agreement within the 4th section of the statute.’

Judges:

Willes J

Citations:

(1866) LR 1 Ex 342, [1866] 4 HandC 588, [1866] 35 LJ Ex 218, [1866] 15 LT 25, [1866] 12 Jur NS 628, [1866] 14 WR 924 ex Ch

Statutes:

Statute of Frauds 1677 4

Jurisdiction:

England and Wales

Cited by:

Cited – Parker v Clark 1960
A written offer was accepted in writing by a letter that became lost. Although it was recognised that oral evidence of the written acceptance might provide an answer, the case was argued on the basis that the written offer was a sufficient . .
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.241711

Godwin v Francis: 1870

The court was asked as to the effect of a note or memorandum in the form of instructions to a telegraph company signed by the party to be charged on whose behalf the telegram concerned was sent.
Held: Bovill CJ said: ‘the mere telegram written out and signed in the way indicated by the telegram clerk, if done with the authority of the vendors, would have been a sufficient signature’.

Judges:

Bovill CJ

Citations:

(1870) LR 5 CP 295

Statutes:

Staute of Frauds 1677 9

Jurisdiction:

England and Wales

Cited by:

Distinguished – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.241715

Lever v Koffler: 1901

An offer was made in writing by the Defendant to sell two parcels of real property on alternative bases, where one of the alternatives was accepted both orally and by letter by the Plaintiff. He suggested two bases upon which the 1677 Act operated to make the Plaintiff’s apparent acceptance of the offer not binding: the reply letter did not define which alternative was being accepted and secondly that the letter from the Defendant did not sufficiently set out the terms of the agreement.
Held: The first point failed under construction of the letters, and the second was rejected in applying Hussey.

Citations:

[1901] Ch 543

Statutes:

Statute of Frauds 1677 4

Jurisdiction:

England and Wales

Citing:

Applied – Hussey v Horne-Payne HL 1879
An exchange of letters which together constituted a binding agreement would satisfy the requirements of Section 4 as it applied to contracts for the sale of land.
Lord Selborne said: ‘The observation has often been made, that a contract . .

Cited by:

Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.241707

Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D): HL 1991

Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti guarantees about outstanding demurrage, if any, and for balance freight’ The brokers stamped and signed the front page ‘For and on behalf of charterers as brokers only’. The intervening pages were, so far as the brokers were concerned, simply stamped with the brokers’ stamp without any indication of capacity. The last page (which was the last page of the typed additional clauses 18-55) bore the brokers stamp and a signature below the words ‘Charterers’. There was an oral contract, made in the course of telephone conversations, by which Marti guaranteed the liabilities of the charterers in respect of demurrage and the balance of the freight.
Held: Lord Brandon indicated that there were two possibilities: a) Marti signed the page containing clause 24 as a contracting party, in which case the prior oral agreement of guarantee was subsumed in the written agreement signed by Marti on its own account so that there was a written agreement of guarantee signed by the person to be charged therewith and enforceable in the first of the two ways prescribed by the Statute; and b) Marti signed the charterparty, including clause 24, solely as agents of the charterers, in which case the signature, although affixed as agent for the charterers, was nevertheless a note or memorandum of the prior oral agreement. It was irrelevant with what intention or in what capacity Marti signed.
Held: The contention failed. It was irrelevant in what capacity or with what intention the document there being considered was signed. What mattered was the signature.

Judges:

Lord Brandon

Citations:

[1991] 3 WLR 330, [1992] 1 AC 21, [1991] 3 All ER 758, [1991] 2 Lloyds Rep 311

Jurisdiction:

England and Wales

Citing:

Cited – In re Hoyle CA 1893
ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol . .
Cited – Evans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .

Cited by:

Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
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, Transport

Updated: 01 May 2022; Ref: scu.241712

Smith v Neale: 1857

The defendant wrote to the plaintiff requesting the assignment of a patent to him to hold as trustee for an institution who would pay him a share of the profits on exploitation of the patent, and if the profits fell below a figure, the patent would be re-assigned. The plaintff agreed orally.
Held: The Statute did not apply, since everything which would need to be done could be done within the year. If a signed contract had been necessary, a contract by the party charged had been established, since the parol acceptance of the written and siged offer was sufficient.

Citations:

(1857) 2 CB(NS) 67, [1857] LJCP 143, [1857] LTOS 93, [1857] 3 Jur NS 516, [1857] 5 WR 563, [1857] 140 ER 337

Statutes:

Statute of Frauds 1677 4

Jurisdiction:

England and Wales

Cited by:

Cited – Parker v Clark 1960
A written offer was accepted in writing by a letter that became lost. Although it was recognised that oral evidence of the written acceptance might provide an answer, the case was argued on the basis that the written offer was a sufficient . .
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.241710

Love and Stewart Ltd v S Instone and Co Ltd: HL 1917

A statement by one party in negotiation for a contract to the other party to the negotiation that there was now a contract was not of any real assistance in answering the question whether there was in fact a contract, for the statement could simply be wrong as a matter of law.

Judges:

Lord Sumner

Citations:

(1917) 33 TLR 475

Jurisdiction:

England and Wales

Cited by:

Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.242132

Hussey v Horne-Payne: HL 1879

An exchange of letters which together constituted a binding agreement would satisfy the requirements of Section 4 as it applied to contracts for the sale of land.
Lord Selborne said: ‘The observation has often been made, that a contract established by letters may sometimes bind parties who, when they wrote those letters, did not imagine that they were finally settling terms of the agreement by which they were to be bound; and it appears to me that no such contract ought to be held established, even by letters which would otherwise be sufficient for the purpose, if it is clear, upon the facts, that there were other conditions of the intended contract, beyond and besides those expressed in the letters, which were still in a state of negotiation only, and without the settlement of which the parties had no idea of concluding any agreement. ‘

Judges:

Lord Selborne

Citations:

[1879] 4 App Cas 311

Statutes:

Statute of Frauds 1677 84

Jurisdiction:

England and Wales

Cited by:

Applied – Lever v Koffler 1901
An offer was made in writing by the Defendant to sell two parcels of real property on alternative bases, where one of the alternatives was accepted both orally and by letter by the Plaintiff. He suggested two bases upon which the 1677 Act operated . .
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.241708

Wigan Borough Council v Davies: EAT 1979

The court considered that an employer owed a duty of care and under the contract of employment to employees to protect them against ill treatment or bullying. The plaintiff sued for breach of contract.
Arnold J said: ‘We do not think that it is an outrageous or inconvenient conclusion that where a party has an obligation to take reasonable steps to achieve something, and is found to have taken no step or no significant step at all, towards that end, the obligation of demonstrating that there was no reasonable step which could have been taken should be found to lie upon that party. And we do not think that in the circumstances of a case such as this it is possible to say that this industrial tribunal were wrong in the conclusion reached upon that topic: or to put it another way, that the absence of evidence would justify us in overturning the decision of the industrial tribunal.’

Judges:

Arnold J

Citations:

[1979] ICR 411

Cited by:

Cited – Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 01 May 2022; Ref: scu.241283

In re Apex Supply Co Ltd: 1942

A hire purchase agreement provided that if the hirer should go into liquidation, and the owner should retake possession, the hirer would pay a sum by way of compensation for depreciation.
Held: The provision for the payment of compensation was not a fraud on the bankruptcy laws as giving the owner company an undue advantage in the event of the hirer company going into liquidation. The provision was not a deliberate device to secure that more money went to the creditor: ‘it would be extravagant . . to suggest that this clause is aimed at defeating the bankruptcy laws or at providing for a distribution differing from that which the bankruptcy laws permit’ and ‘the penalty area is limited to the narrow field which I have described’.

Judges:

Justice Gorman

Citations:

[1942] Ch 108

Cited by:

Approved – Philip Bernstein (Successors) Ltd v Lydiate Textiles Ltd; orse Sterling Industrial Facilities v Lydiate Textiles Ltd CA 26-Jun-1962
Lord Justice Diplock: ‘. . the ordinary rule which the courts apply is that contracts should be enforced, pacta sunt servanda, unless they can be brought within that limited category of cases in which, for reasons of public policy, the court refuses . .
Approved – Export Credits Guarantee Department v Universal Oil Products HL 1983
A contract provided for the payment of a stated sum by one party to the contract (A) to the other party (B) in the event of the non-performance by A of one of more contractual obligations owed by A not to B himself but to C, who was not a party to . .
Cited – Euro London Appointments Ltd v Claessens International Ltd CA 6-Apr-2006
The court considered whether a clause in an employment agency’s terms and conditions amounted to a penalty and was unenforceable. The contract provided that if the offer was withdrawn by the eventual employer after acceptance but before the . .
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.

Contract, Insolvency

Updated: 01 May 2022; Ref: scu.240154

The Ypatia Halcoussi: 1985

Rectification is not available where the written agreement fails to deal with an issue because the parties have overlooked it.

Citations:

[1985] 2 Lloyds Rep 364

Cited by:

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

Contract, Equity

Updated: 01 May 2022; Ref: scu.238577

McCrone v Boots Farm Sales Limited: 1981

The court considered the meaning of ‘standard form contract’ as it applied in Scotland under the 1977 Act: ‘The Act does not define ‘standard form contract’, but its meaning is not difficult to comprehend. In some cases there may be difficulty deciding whether the phrase properly applies to particular contract. I have no difficulty deciding that, upon the assumption that the defenders prove that their general conditions of sale were set out in all their invoices and they were incorporated by implication in their contract with the pursuer, the contract was a standard form contract within the meaning of the said section 17.
Since Parliament saw fit to leave the phrase to speak for itself, far be it from me to attempt to formulate a comprehensive definition of it. However, the terms of s. 17 in the context of this Act make it plain to me that the section is designed to prevent one party to a contract from having his contractual rights, against a party who is in breach of contract, excluded or restricted by a term or condition, which is one of a number of fixed terms or conditions invariably incorporated in contracts of the kind in question by the party in breach, and which have been incorporated in the particular contract in circumstances in which it would be unfair and unreasonable for the other party to have his rights so excluded or restricted. If the section is to achieve its purpose, the phrase ‘standard form contract’ cannot be confined to written contracts in which both parties use standard forms. It is, in my opinion, wide enough to include any contract, whether wholly written or partly oral, which includes a set of fixed terms or conditions which the proponer applies, without material variation, to contracts of the kind in question. It would, therefore, include this contract if the defenders’ general conditions of sale are proved to have been incorporated in it. In that event, it would be for the defenders to prove that it was fair and reasonable for their condition 6 to be incorporated in this contract.’

Judges:

Lord Dunpark

Citations:

[1981] SLT 103

Statutes:

Unfair Contract Terms Act 1977 17

Cited by:

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

Scotland, Contract, Consumer

Updated: 01 May 2022; Ref: scu.238579

Ntinos Karis Claire Kaissides v Lennox Lewis: CA 21 Dec 2005

A court may draw adverse inferences from unexplained reasons as to why witnesses who were apparently available when their evidence was crucial to a case were not called.

Judges:

The Hon Mrs Justice Arden DBE The Right Honourable Lord Justice May The Right Honourable Sir Martin Nourse

Citations:

[2005] EWCA Civ 1637

Jurisdiction:

England and Wales

Citing:

Appeal from – Lewis v Eliades , Karis, Kaissides ChD 22-Apr-2005
. .

Cited by:

See Also – Karis and Another v Lewis CA 21-Dec-2005
. .
Cited – Baigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 01 May 2022; Ref: scu.237764

Coast Lines Ltd v Hudig and Veder Chartering NV: 1971

Parties who contract to give the UK courts jurisdiction must be taken at least to have wanted a case to be heard by the UK courts. The fact that the foreign forum, notwithstanding the express choice of English law, may not apply English law, and may instead apply its own law is also an element on accepting or declining jurisdiction.

Judges:

Roskill J

Citations:

[1971] 2 Lloyd’s Rep 39

Cited by:

Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 01 May 2022; Ref: scu.237258

Marshall v Goulston Discount (Northern) Ltd: 1967

Citations:

[1967] Ch 72

Statutes:

Moneylenders Acts 1927

Cited by:

Cited – GE Capital Bank Ltd v Rushton and Another CA 14-Dec-2005
The bank had entered into a master trading agreement with a trader under which the trader bought motor vehicles as agent for the bank for resale. The vehicles belonged to the bank. The defendant bought all the trader’s vehicles. The defendant now . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 01 May 2022; Ref: scu.236663

Spiers v Hunt: 1908

The marriage tie and the married state was held to be so fundamental that it was morally wrong and against public policy to become engaged whilst still married.

Citations:

[1908] 1 KB 720

Jurisdiction:

England and Wales

Cited by:

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

Family, Contract

Updated: 30 April 2022; Ref: scu.235295

Price v Bouch: 1986

The power to approve building plans on an estate had been passed to a committee of all estate owners. The plaintiff said that a term should be implied to say that approval should not be unreasonably withheld.
Held: A term that consent would not unreasonably be withheld should be implied when necessary to uphold the purpose (or efficacy) of the contract under which a requirement for consent arose according to the circumstances. The court court not review the reasonableness of the committee’s decision. However: ‘It was conceded that the committee had a duty to inspect and consider any application submitted to them, to reach a decision themselves and not to delegate it to others, and to act honestly and in good faith and not for some improper or ulterior purpose. It was also accepted that, if the committee took into account irrelevant considerations or failed to take into account relevant considerations, or reached a perverse decision such that no reasonable committee could possibly reach, then their decision could be impugned, for it would be ultra vires. This, however, was not enough for the plaintiffs. They insisted that the committee must act reasonably and that they must give reasons for their decision, so that it could, if necessary, be challenged, when the court would adjudicate and decide, in the light of the evidence, whether those reasons were justified.
. . . In my judgment, the mutual covenantors are equally bound by the decision of the committee, whether it be a decision to grant or refuse approval, and they are so bound, provided only that it is given honestly and in good faith and not for some improper purposes. Where the required consent is that of an individual who is free to consult his own interests exclusively, a provision that such consent must not be unreasonably refused is often included in order to prevent consent being withheld arbitrarily, or capriciously, or from improper motives. If that is the only effect of including such a provision, its implication in the present case is unnecessary . . .’

Judges:

Millett J

Citations:

(1986) 53 P and CR 257, [1986] 2 EGLR 179

Jurisdiction:

England and Wales

Cited by:

Cited – Mahon and Another v Sims QBD 8-Jun-2005
A land transfer had contained a clause requiring a restrictive covenant agreeing not to erect any building without the approval by the neighbours of plans.
Held: The term ‘transferors’ was to be read to include the transferors’ successors in . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 30 April 2022; Ref: scu.228506

Arinson v Smith: CA 1888

The court asked whether a misrepresentation in a prospectus was corrected by a circular issued after shares had been allotted to investors who had relied on the prospectus.
Held: It was not, and that what would have been required was a clear statement in the circular calling attention to the fact that there was a serious error in the prospectus.

Judges:

Lord Halsbury LC

Citations:

(1888) 41 Ch 348

Jurisdiction:

England and Wales

Cited by:

Cited – Peekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.226116

Lloyds Bank PLC v Waterhouse: CA 1993

The plaintiff bank claimed against the defendant under an ‘all monies’ guarantee, to which the defendant raised defences of misrepresentation, non est factum, and negligence or breach of duty by the bank.
Held: The court explored the inter-relationship between the doctrine and the law relating to misrepresentation. The defence of non est factum failed, principally because the defendant had failed to exercise proper care for his own protection. However by reason of misrepresentation or breach of duty the bank was not entitled to rely on the guarantee.
Woolf LJ discussed the plea ‘non est factum: ‘Normally the plea is raised by a defendant who is contending that he had been misled (usually because of fraud) by some person other than the plaintiff as to the nature of the document which he has signed. This is not the case here. The defendant contends that he was misled as to the nature of the document by the activities of the bank. In these circumstances, while I do not suggest that the defendant is not entitled to seek to rely on a plea of non est factum, I do not regard the defendant’s ability to rely on the plea as being the primary way in which to determine the merits of his defence to the bank’s claim. It has clearly been laid down that as a matter of principle the scope of the plea of non est factum should be confined by the courts within narrow limits . . .’ There are two reasons for confining the scope of the plea of non est factum. First, confusion and uncertainty would be caused if it was too easy for a person to deny responsibility for what is contained in a contract or deed which he has signed simply by asserting that he did not appreciate what he was signing. This reason is applicable also to other defences such as misrepresentation which can be raised as a defence to a contract in writing. Second, other innocent parties will rely upon the document. ‘This is not applicable in a case such as this and so if the ordinary rules which are applicable to non est factum have still to be surmounted by a defendant in the position of the present appellant, this could place an unnecessarily heavy burden upon him . . However instead of having differing standards or requirements in order to establish a plea of non est factum, I suggest that it is preferable to protect, when appropriate, the position of a defendant who has been misled by the activities of the plaintiff as to the nature of the document which he has signed on the grounds of misrepresentation and breach of the duty not to mislead another party to a written contract as to the nature of that contract.’

Judges:

Woolf LJ, Purchas LJ

Citations:

[1993] 2 FLR 97

Jurisdiction:

England and Wales

Cited by:

Cited – Peekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.226118

British Motor Trust Co Ltd v Hyams: 1934

Mr Lord acquired two motor coaches under two hire-purchase agreements from the claimants and persuaded his mother-in-law to guarantee his obligations by a contract indorsed on the agreements in the following terms:- ‘We . . guarantee the due and punctual payment by the . . hirer of all . . moneys payable by him under the within written agreement . . and we further agree that this guarantee shall not be avoided . . by the owners and the hirer making any variation in the terms of the said agreement . . provided that no variation shall make us liable for a greater maximum sum under this guarantee than that for which we are at present or may become liable under the present terms of the said agreement.’ Mr Lord fell into arrears and the claimant, instead of resuming possession, made a new single agreement with him by which the two earlier agreements were consolidated and the vehicles were regarded as being hired together so that Mr Lord could not acquire property in any one vehicle unless he paid all instalments due on both vehicles.
Held: The Court described the clause permitting variation to be:- ‘so wide that it was almost impossible to put any limit to the power to vary.’ and added:- ‘It might be that the position of the debtor was so altered that he would be less able to repay the guarantor, but even such a change was not beyond the very wide power of variation contained in the guarantee.’

Judges:

Branson J

Citations:

(1934) 50 TLR 230

Cited by:

Cited – Triodos Bank Nv v Dobbs (No 2) CA 24-May-2005
The bank sought payment under a guarantee given by the appellant. The appellant said that the original loan agreement had been varied so as to release him. The loan had been taken out to support a business venture. After the guarantee was signed a . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking

Updated: 30 April 2022; Ref: scu.225453

Trade Indemnity Co Ltd v Workington Harbour and Dock Board: HL 1937

The House held that a loan of andpound;45,000 made by a building owner to a building contractor did not constitute an agreement ‘for any alteration in or to’ the building contract which the company had guaranteed. The question was whether it was ‘within the general purview of the original guarantee’. Lord Atkin also said: ‘My Lords, both actions were brought on the money bond.’ – That is the first and second actions. – ‘It is well established that in such an action the plaintiff has to establish damages occasioned by the breach or breaches of the conditions, and, if he succeeds, he recovers judgment on the whole amount of the bond, but can only issue execution for the amount of the damages proved.’

Judges:

Lord Atkin

Citations:

[1937] AC 1

Cited by:

Cited – Triodos Bank Nv v Dobbs (No 2) CA 24-May-2005
The bank sought payment under a guarantee given by the appellant. The appellant said that the original loan agreement had been varied so as to release him. The loan had been taken out to support a business venture. After the guarantee was signed a . .
See Also – Trade Indemnity Co Ltd v Workington Harbour and Dock Board (No 2) HL 1938
The plaintiffs’ action was derived from a bond given by the defendants guaranteeing a contractor’s performance in building a dock for the plaintiffs. The bond provided that a certificate which complied with certain criteria would prove the amount . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 30 April 2022; Ref: scu.225451

Deanplan Limited v Mahmoud: 1992

The court considered whether a release of one of joint contractors released the other contractors. He said: ‘An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released from liability following an agreement between the lessor and the occupying assignee of the lease under which the lessor takes surrender of the lease and some of the assignee’s goods in return for releasing the assignee from all claims under the lease. In short, does the release, by accord and satisfaction of one covenanter, release the other covenanters undertaking the same obligation?’ and
‘From this long review of the cases, I draw the following conclusions. First, a release of one joint contractor releases the others. There is only one obligation. A release may be under seal or by accord and satisfaction. A covenant not to sue is not a release. It is merely a contract between the creditor and the joint debtor which does not affect the liabilities of the other joint contractors or their rights of contribution and indemnity against their co-contractors. It is a question of the construction of the contract between the creditor and joint debtor in the light of the surrounding circumstances whether the contract amounts to a release or merely a contract not to sue. Secondly, the same principles apply to the contract between the creditor and one of the joint and several debtors. If one joint and several covenanters is released by accord and satisfaction, all are released. Some have seen this as illogical, and so it would be if the only reason for the rule that the release one of joint contractor is that there is only one obligation. Professor Glanville Williams sees the reason for the extended rule to have been an early uncertainty as to the nature of a joint and several obligation: see Joint Obligations , p.135, para.63. Two other reasons can be adduced. First, where the obligations are non-cumulative, i.e. the obligation of each is to perform in so far as it has not been performed by the other party, the acceptance of some other performance in lieu of the promised performance relieves the others. The covenantee cannot have both the promised performance and some other performance which he agrees to accept. Secondly, unless the co-covenantors were released following an accord and satisfaction, they could claim a right of contribution or indemnity. Thus, by suing the co -contractor, the creditor commits a breach of the contract with the released covenantor, for such an action will inevitably lead to the very claim from which the release has been purchased by accord and satisfaction. Thirdly, the reasoning in the preceding paragraph applies equally to a number of second covenanters each liable to perform the same obligation as in the case before me. Indeed the dictum of Younger LJ in Mattee v Curling [1922] (2AC 180 at 208 already averted to is consistent with this). ‘

Judges:

His Honour Judge Paul Baker QC

Citations:

[1993] Ch 151, [1992] 3 All ER 945

Cited by:

Cited – Johnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.224361

Regina v McFadden and Cunningham: 1976

The court was asked whether a professionally improper agreement was thereby illegal also.

Citations:

[1976] CLY 2196

Jurisdiction:

England and Wales

Cited by:

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

Contract

Updated: 30 April 2022; Ref: scu.223962

In re Trepca Mines (No 2): CA 1962

Champerty: Lord Denning MR said: ‘The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses. These fears may be exaggerated, but, be that so or not, the law for centuries had declared champerty to be unlawful, and we cannot do otherwise than enforce the law, and I may observe that it has received statutory support, in the case of Solicitors, in Section 65 of the Solicitors Act 1957.’

Judges:

Lord Denning MR

Citations:

[1962] CLY 2900, [1963] Ch 199

Statutes:

Solicitors Act 1957 65

Jurisdiction:

England and Wales

Cited by:

Considered – Picton Jones and Co v Arcadia Developments 1989
The plaintiff chartered surveyors agreed to act in the purchase of amusement arcades, on the basis that their fees would be payable ‘in the event of ultimate success.’ The work involved applications for gaming licences and planning permissions. The . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Mentioned – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 30 April 2022; Ref: scu.223960

Palmer v Goren: 1856

The court considered events where a vendor of leasehold land had failed to maintain the insurance pending completion, and in breach of the lease: ‘It is, in fact, the duty of the vendor so to act that nothing done by him prior to the completion of the contract shall constitute a forfeiture of the lease. The policy of insurance not having in this case been kept up till the completion of the contract, so rendering the property liable to a forfeiture, that was not done by the vendors that which they should have done, and therefore, I think, the purchaser ought to be discharged from his contract.’

Citations:

(1856) 25 LJ Ch 841

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 30 April 2022; Ref: scu.223747

Sinclair-Hill v Southcott: 1973

There was an unconditional sale of a property to a developer for which the vendor was seeking planning permission. The vendor withdrew his application for planning permission after the contract.
Held: The principle of the vendor’s trusteeship extended to prohibit withdrawal of a planning application in such circumstances: ‘It was not suggested that a term to keep the planning application in being should be implied. Nor could it be said that a planning application could properly be regarded as part of property passing on sale in the same way and for the same reasons as the roses in the front garden. If it were the principle of trusteeship on the part of the vendor could be applied without any hesitation . . Under modern conditions, where all potential building land is subject to planning consents of various kinds, and where local authorities are likely to have large numbers of such applications before them, it is obvious that a high rather than a low place in the queue was of value to a speculative bidder . . It follows that the vendor in such circumstances is in my judgment under an obligation after the contract has been signed, not to withdraw a planning application which must be assumed to be of value to the purchaser, at any rate without obtaining the purchaser’s consent to such withdrawal.’

Judges:

Graham J

Citations:

(1973) 26 PandCR 490

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 30 April 2022; Ref: scu.223749

Abdulla v Shah: PC 1959

(From Court of Appeal for Eastern Africa) An Act provided that a contract of sale did not create any interest, but the seller was bound to take as much care of the property as an owner of ordinary prudence would take. This standard was the same as that of a trustee under the Indian Trusts Act 1882, which in turn was substantially that of a trustee under English law.
Held: A vendor of rent-restricted property which had become vacant between the dates of the contract and of completion was under a duty to consult the purchaser before reletting (at controlled rents) prior to completion of the contract The vendors had no right without consultation with the purchasers to diminish the value of the property as it was after the surrender by reletting.

Judges:

Lord Somervell of Harrow

Citations:

[1959] AC 124

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Contract, Land, Commonwealth

Updated: 30 April 2022; Ref: scu.223748

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 National Conditions of Sale, and referring as it did to the contract of September 30, 1981, which incorporated those conditions, should be treated as having been given and received pursuant to condition 22 of the National Conditions of Sale and so as a notice which made it a term of contract, in respect of which time was of the essence, that the contract should be completed within 28 days of the service of the notice exclusive of the day of service. I appreciate that the notice was dated November 10, 1981, and was expressed to be a notice to complete within 28 days ‘from the date hereof’. But a notice is something which is intended to bring its contents to the attention of the recipient and cannot do that until it reaches him. I am of the opinion that speaking generally, a reference in a notice to ‘the date hereof’ is at least as apt to refer to the date of its service as to the date on which it is and is expressed to be sent, and that the former date (the date of service) is actually to be preferred where, as here,
(a) the notice is given pursuant to a contractual provision referring to that date;
(b) the effect of so regarding it is to save, rather than to destroy, the validity of the notice; and
(c) the recipient treated it as valid, or at least took no exception to it, until well after the 28 days had expired, and certainly had no ground for asserting that the reference to ‘the date hereof’ in any way misled him.’
As to the question of returning a deposit: ‘It is to be observed that a purchaser had no need to pray this sub-section [section 49(2)] in aid when it is not he but the vendor who is the defaulter. The sub-section is needed only to enable a purchaser who is himself in default to recover his deposit.’

Judges:

Mr Gerald Godfrey QC

Citations:

(1983) 47 PandCR 1

Statutes:

Law of Property Act 1925 49(2)

Cited by:

Cited – Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd 1996
The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for . .
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Aero Properties Ltd and Another v Citycrest Properties Ltd and Another ChD 6-Feb-2002
Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the . .
Approved – 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 . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 30 April 2022; Ref: scu.223521

Universal Cargo Carriers Corporation v Citati: 1957

The shipowners had cancelled a voyage charter-party because no cargo had been provided. The court asked what delay could lead to a claim for a repudiatory breach of a contract. Devlin J said: ‘This case gives rise to a difficult question. How long is a ship obliged to remain on demurrage, and what are the rights of the owner if the charterer detains her too long? Translated into the terms of general contract law, the question is: Where time is not of the essence of the contract – in other words, when delay is only a breach of warranty – how long must the delay last before the aggrieved party is entitled to throw up the contract? The theoretical answer is not in doubt. The aggrieved party is relieved from his obligations when the delay becomes so long as to go to the root of the contract and amount to a repudiation of it. The difficulty lies in the application, for it is hard to say where fact ends and law begins. The best solution will be found, I think, by a judge who does not try to draw too many nice distinctions between fact and law, but who, having some familiarity both with the legal principle and with commercial matters and the extent to which delay affects maritime business, exercises them both in a common-sense way. This is the sort of solution which, upon the supposition that it was acceptable to business men, the commercial court was created to provide.’ and ‘But a party to a contract may not purchase indefinite delay by paying damages . . When the delay becomes so prolonged that the breach assumes a character so grave as to go to the root of the contract, the aggrieved party is entitled to rescind. What is the yardstick by which this length of delay is to be measured? Those considered in the arbitration can now be reduced to two’ (as in the present appeal) ‘first, the conception of a reasonable time, and secondly, such delay as would frustrate the charter-party . . In my opinion the second has been settled as the correct one by a long line of authorities’.

Judges:

Devlin J

Citations:

[1957] 2 QB 402

Cited by:

Approved – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – SK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.223518

Merkur Island Corp v Laughton: HL 1983

The shipowner claimants were party to a contract under which their obligation to prosecute their voyages with the utmost despatch was qualified by clauses providing for the vessel to go off hire and for charterers to have a right after 10 days to cancel, in the event of a labour blockade/boycott of the type which the defendants were pursuing. An allegation was made of interference by unlawful means with the performance of the contract.
Held: No damages were recoverable for that non-performance.

Judges:

Diplock L

Citations:

[1983] 2 AC 570

Jurisdiction:

England and Wales

Citing:

Approved – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .

Cited by:

Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 30 April 2022; Ref: scu.222995

Massey v Sladen: 1868

A bill of sale was given redeemable on demand if a floating debt were paid. No notice was required. Other cerditors made demands upon the plaintiff’s absence on his son, and seized the goods immediately.
Held: The notice required by the deed on an occasion where the plaintiff was absent was such as could reasonably be expected to reach the plaintiff. A reasonable time was implied, and the seizure was not justified.

Citations:

(1868) LR 4 EXD 13

Cited by:

Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Updated: 30 April 2022; Ref: scu.223011

Drive Yourself Hire Co (London) Ltd v Strutt: CA 1954

The court discussed the doctrine of privity of contract. Lord Denning MR said: ‘It is often said to be a fundamental principle of our law that only a person who is a party to a contract can sue on it. I wish to assert, as distinctly as I can, that the common law in its original setting knew no such principle. Indeed, it said quite the contrary. For the 200 years before 1861 it was settled law that, if a promise in a simple contract was made expressly for the benefit of a third person in such circumstances that it was intended to be enforceable by him, then the common law would enforce the promise at his instance, although he was not a party to the contract.’

Judges:

Lord Denning MR

Citations:

[1954] 1 QB 250

Statutes:

Law of Property Act 1925 56

Jurisdiction:

England and Wales

Citing:

Cited – Dutton v Poole KBD 1678
A son made a promise to his father that, in return for his father not selling a wood, he would pay andpound;1000 to his sister. The father refrained from selling the wood, but the son did not pay. It was held that the sister could sue, on the ground . .

Cited by:

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

Contract

Updated: 30 April 2022; Ref: scu.221996

Dutton v Poole: KBD 1678

A son made a promise to his father that, in return for his father not selling a wood, he would pay andpound;1000 to his sister. The father refrained from selling the wood, but the son did not pay. It was held that the sister could sue, on the ground that the consideration and promise to the father may well have extended to her on account of the tie of blood between them. There was some disagreement in argument, on the grounds that the daughter was privy neither to the promise nor the consideration.

Citations:

(1678) 2 Lev 210, 83 ER 523

Jurisdiction:

England and Wales

Cited by:

Cited – Drive Yourself Hire Co (London) Ltd v Strutt CA 1954
The court discussed the doctrine of privity of contract. Lord Denning MR said: ‘It is often said to be a fundamental principle of our law that only a person who is a party to a contract can sue on it. I wish to assert, as distinctly as I can, that . .
Confirmed – Martyn v Hind 1776
. .
Appeal from – Dutton v Poole CEC 1679
(Exchequer Chamber) Upheld . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.221999

Alliance Bank Ltd v Broom: 1864

The bank demanded security for its loan in circumstances in which it would otherwise have enforced payment. It made no promise not to demand payment but: ‘the [bank] did in effect give, and the defendant received, the benefit of some degree of forbearance; not, indeed, for any definite time, but, at all events, some extent of forbearance.’

Judges:

Sir Richard Kindersley V-C

Citations:

(1864) 2 Dr and Sm 289

Cited by:

Cited – R v Her Majesty’s Attorney-General for England and Wales PC 17-Mar-2003
PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 30 April 2022; Ref: scu.220491

Galbraith and Grant Ltd v Block: KBD 1922

Where under a contract the seller of goods is required to deliver them at the buyer’s premises he fulfils his obligation if he delivers them there to a person who apparently has authority to receive them, taking care to see that no unauthorized person receives them. If therefore the goods are received by an apparently respectable person, who has obtained access to the buyer’s premises, and who signs for the goods in the buyer’s absence and misappropriates them, the loss must fall on the buyer and not on the carrier or seller: ‘A vendor who is told to deliver goods at the purchaser’s premises discharges his obligations if he delivers them there without negligence to a person apparently having authority to receive them. He cannot know what authority the actual recipient has. His duty is to deliver the goods at the proper place, and, of course, to take all proper care to see that no unauthorized person receives them. He is under no obligation to do more. If the purchaser has been unfortunate enough to have had access to his premises obtained by some apparently respectable person who takes his goods and signs for them in his absence, the loss must fall on him, and not on the innocent carrier or vendor.’

Judges:

Lush J

Citations:

[1922] 2 KB 155

Cited by:

Cited – Computer 2000 Distribution Ltd and others v ICM Computer Solutions Plc CA 17-Nov-2004
The claimant delivered computer equipment against a fraudulent invoice issued in the name of the defendant.
Held: The loss here had to fall on an innocent party. Having delivered the equipment to the site requested, the claimant had done all . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.220646

Tor Line AB v Alltrans Group of Canada (The ‘TFL Prosperity’): HL 1984

A roll-on roll-off liner tendered under a charter party did not conform to the description in the contract and the owners relied on a widely drawn exclusion clause.
Held: The owners’ argument failed. A literal interpretation would have defeated the central objective of the charter contract and would have been commercially absurd. As a result, the exemption was read, not literally, but very restrictively and the owners were held to be liable, notwithstanding the exemption clause, for financial damage resulting from their breach of warranty.
No more should be read into an exemption clause in an insurance policy than is necessary to make sense of it, particularly where to do more would relieve a party from any obligation at all. The repugnancy doctrine (even at its most extreme) only entitles a court to disregard an exception clause if the contract as a whole would otherwise be virtually reduced to a declaration of intent.
Lord Roskill said: ‘Such a literal construction would mean that the owners would be under no liability if they never delivered the vessel at all for service under the charter or delivered a vessel with a totally different description from that stipulated in the preamble. My Lords I cannot think that this can be right.’ and ‘In truth if clause 13 were to be construed so as to allow a breach of the warranties as to description in clause 26 to be committed or a failure to deliver the vessel at all to take place without financial redress to the charterers, the charter virtually ceases to be a contract for the letting of the vessel and the performance of services by the owners, their master, officers and crew in consideration of the payment of time charter hire and becomes no more than a statement of intent by the owners in return for which the charterers are obliged to pay large sums by way of hire, though if the owners fail to carry out their promises as to description or delivery, are entitled to nothing in lieu. I find it difficult to believe that this can accord with the true common intention of the parties and I do not think that this conclusion can accord with the true construction of the charter in which the parties in the present case are supposed to have expressed that true common intention in writing.’ and ‘I doubt whether the fourth sentence of clause 13 imposes greater liabilities than would in any event fall upon the charterers either under the charter or at common law.’

Judges:

Lord Roskill

Citations:

[1984] 1 WLR 48, [1984] 1 Ll R 123, [1984] 1 All ER 103

Jurisdiction:

England and Wales

Cited by:

Cited – Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc, Eagle Star Insurance Company Ltd, AGF Insurance Ltd IC Insurance Ltd ComC 15-Nov-2004
The claimant football club insured its players through the defendants. A footballer injured himself in training and his career was finished. The insurers rejected the claim, and relied upon exception clauses, saying that the true cause was a . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Cited – Total Transport Corporation v Arcadia Petroleum Ltd (‘the Eurus’) CA 18-Nov-1997
Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 30 April 2022; Ref: scu.219699

Craddock v Hunt: 1923

When negotiating for the purchase of property the parties agreed orally that an adjoining yard was to be excluded. The written contract as exchanged included the yard.
Held: Recitification was ordered.

Citations:

(1923) Ch 136

Contract, Land

Updated: 30 April 2022; Ref: scu.219173

Smith v Mansi: CA 1962

Where a land contract was not to be by way of exchange of multiple parts, but by signatures on one document, and in the absence of any other indication, the contract became binding upon the last signature being appended.

Citations:

[1963] 1 WLR 26, [1962] 3 All ER 857

Jurisdiction:

England and Wales

Land, Contract

Updated: 30 April 2022; Ref: scu.219190

Record v Bell: ChD 21 Dec 1990

Contracts for the sale of a house were about to be exchanged but office copy entries of the vendor’s title at the Land Registry had not yet been supplied. The solicitors agreed that contracts would be exchanged on the basis of a warranty that office copies, when available, would show that the vendor was the registered proprietor. Office copy entries were supplied before completion was due, and the vendor’s title was established. But, in answer to a summons for a summary order for specific performance, the purchaser argued that the contract did not satisfy the requirements of section 2 of the 1989 Act.
Held: The warranty was binding on the vendor even though not given in writing. It was collateral to the principle contract, and outside section 2. The warranty was intended to induce the purchaser to exchange contracts, but it was not itself a term of the sale, and the existence of the warranty did not lead to the conclusion that the requirements of section 2 of the 1989 Act were not satisfied in respect of the contract of sale.

Judges:

Baker QC HHJ

Citations:

Times 21-Dec-1991, [1991] 1 WLR 853

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – De Lassalle v Guildford CA 1901
The court was asked whether a representation amounts to a warranty or not.
Held: AL Smith MR said: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or . .

Cited by:

Cited – Jones and Another v Forest Fencing Limited CA 21-Nov-2001
The sellers of and disputed an order as to whether electrical equipment at the site hd been included in the contract.
Held: ‘the answer to the question ‘what meaning should be given to the words used in the memorandum’ cannot, I think, be a . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 30 April 2022; Ref: scu.219188

Harrison v Battye: 1974

Where it is intended that a contract should come into existence upon exchange of contract document parts executed by the various parties, it was necessary for the parts exchanged to be identical. The effective date when parties are bound is the date of exchange.

Citations:

[1975] 1 WLR 58, [1974] 3 All ER 830

Jurisdiction:

England and Wales

Cited by:

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

Contract, Land

Updated: 30 April 2022; Ref: scu.219179

Driver v Broad: 1893

An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property ‘in the ordinary course of its business’ and one that does not. The concept was inherent in the term ‘floating security’ or ‘floating charge.’

Judges:

Kay LJ

Citations:

[1893] 1 QB 744

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Ashborder Bv and others v Green Gas Power Ltd and others ChD 29-Jun-2004
. .
Cited – Sandhu (T/A Isher Fashions UK) v Jet Star Retail Ltd and Others CA 19-Apr-2011
The claimant had supplied clothing to the defendant under a contract containing a retention of title clause. The defendant fell into financial difficulties and administration. The claimant now sought damages for conversion of its goods by the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 30 April 2022; Ref: scu.219434

Holt v Heatherfield Trust: 1942

Consideration is not required to support a statutory assignment of a debt under section 136 of the 1925 Act and the lack of consideration does not need to be made good by deed.

Citations:

[1942] 2 KB 1

Statutes:

Law of Property Act 1925 8136

Cited by:

Cited – Firstdale Ltd v Quinton ComC 5-Aug-2004
In the course of a long dispute, the defendant’s solicitors had indicated that they would accept service of proceedings. Just before the limitation period expired, the papers were served directly in the client. The defendants solicitors said that . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.219114

Grains and Fourrages SA v Huyton: 1997

Where a contract had apportioned a risk, it was not for the court to allow it to be re-opened: ‘If the buyers had made their proposal in terms, or on a basis, which amounted to an acceptance of risk on their part that the facts might turn out differently, then of course I would accept that they could not and should not be allowed to reopen the matter.’

Judges:

Mance J

Citations:

[1997] 1 Lloyds Law Reports 628

Cited by:

Cited – Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.214228

Fercometal v Mediterranean Shipping Co SA, The Simona: HL 1988

The House considered the options available to a party faced with an anticipatory repudiation of a contract.
Held: Affirmation or election requires an unequivocal choice between two inconsistent causes of action.
Lord Ackner said: ‘When A wrongfully repudiates his contractual obligations in anticipation of the time for their performance, he presents the innocent party B with two choices. He may either affirm the contract by treating it as still in force or he may treat it as finally and conclusively discharged. There is no third choice, as a sort of via media to affirm the contract and yet to be absolved from tendering further performance unless and until A gives reasonable notice that he is once again able and willing to perform. Such a choice would negate the contract being kept alive for the benefit of both parties and would deny the party who unsuccessfully sought to rescind the right to take advantage of any supervening circumstance which would justify him in declining to complete.’

Judges:

Lord Ackner

Citations:

[1989] AC 788, [1988] 2 All ER 742, [1988] 3 WLR 200, [1988] 2 Lloyds Rep 199

Jurisdiction:

England and Wales

Cited by:

Cited – Vitol Sa v Norelf Ltd HL 10-Jul-1996
(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.214294

Yien Yieh Commercial Bank Ltd v Kwai Chung Cold Storage Co Ltd: PC 1989

The Board was asked as to how conflicting provisions within a contract should be read and reconciled: ‘Their Lordships wish to stress that to reject one clause in a contract as inconsistent with another involves a rewriting of the contract which can only be justified in circumstances where the two clauses are in truth inconsistent. In point of fact, this is likely to occur only where there has been some defect of draftsmanship. The usual case is where a standard form is taken and then adapted for a special need, as is frequently done in, for example, the case of standard forms of charterparty adapted by brokers for particular contracts. From time to time, it is discovered that the typed additions cannot live with the printed form, in which event the typed additions will be held to prevail as more likely to represent the intentions of the parties. But where the document has been drafted as a coherent whole, repugnancy is extremely unlikely to occur. The contract has, after all, to be read as a whole; and the overwhelming probability is that, on examination, an apparent inconsistency will be resolved by the ordinary processes of construction.’

Judges:

Lord Goff of Chieveley

Citations:

[1989] 2 HKLR 639

Cited by:

Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 30 April 2022; Ref: scu.211393

Pagnan SpA v Tradax Ocean Transportation SA: 1986

When asked to interpret a contract with apparently conflicting provisions, the duty of the court is ‘to reconcile seemingly inconsistent provisions if that result can conscientiously and fairly be achieved’.

Judges:

Steyn J

Citations:

[1987] 1 All ER 81, [1986] 2 Lloyd’s Rep 646

Cited by:

Appeal from – Pagnan SpA v Tradax Ocean Transportation S.A. CA 2-Jan-1987
When looking at different clauses in a contract, there would obviously be an inconsistency if two clauses cannot ‘sensibly’ be read together. . .
Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
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

Updated: 30 April 2022; Ref: scu.211392