Category: Contract

Sutton v Hawkins: 1837

lf a person offer a sum ‘as all that is due,’ that is not a good tender. A party by accepting a sum properly tendered does [not] thereby compromise his future claim to a larger sum, which he would do if he took a sum offered ‘as all that was due ‘

[1837] EngR 297, (1837) 8 Car and P 259, (1837) 173 ER 485
Commonlii
England and Wales

Contract

Updated: 08 January 2022; Ref: scu.313414

Sony Computer Entertainment UK Ltd v Cinram Logistics UK Ltd: CA 8 Aug 2008

Various items were deemed to have been lost whilst being transported by the defendants. The claimants sought damages based on the price for which they would have been sold. The defendants appealed a judgment on that basis.
Held: The carrier’s appeal failed.

Lord Justice Rix, Lord Justice Wilson and Lord Justice Rimer
[2008] EWCA Civ 955, Times 10-Sep-2008, [2009] Bus LR 529
Bailii
England and Wales
Citing:
Appeal from – Sony Computer Entertainment UK Ltd v Cinram Logistics UK Ltd ComC 2008
The defendant took the claimant’s memory cards for transport, but they were lost. The claimant sought damages calculated on the eventual selling price.
Held: The claimants were entitled to damages on this basis if they discharged the burden of . .
Cited – Charter v Sullivan CA 25-Feb-1957
. .
Cited – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 08 January 2022; Ref: scu.272279

Totsa Total Oil Trading Sa v Bharat Petroleum Corp Ltd: ComC 14 Jan 2005

Christopher Clarke J
[2005] EWHC 1641 (Comm)
Bailii
England and Wales
Cited by:
Cited – CMA-CGM Marseille v Petro Broker International CA 19-Apr-2011
Petro sought to enforce an arbitration award in its favour under a bunker contract. CMA obtained a stay on enforcement. It then offered to release the stay but on terms unacceptable to Petro. . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 08 January 2022; Ref: scu.381697

Sony Computer Entertainment UK Ltd v Cinram Logistics UK Ltd: ComC 2008

The defendant took the claimant’s memory cards for transport, but they were lost. The claimant sought damages calculated on the eventual selling price.
Held: The claimants were entitled to damages on this basis if they discharged the burden of proof of lost sales which fell on them.

Judge Knight, QC
[2008] EWHC 14 (QB)
England and Wales
Cited by:
Appeal from – Sony Computer Entertainment UK Ltd v Cinram Logistics UK Ltd CA 8-Aug-2008
Various items were deemed to have been lost whilst being transported by the defendants. The claimants sought damages based on the price for which they would have been sold. The defendants appealed a judgment on that basis.
Held: The carrier’s . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 08 January 2022; Ref: scu.276516

N G Fergusson and Co Ltd v Brown and Tawse: HL 9 May 1918

A British firm having arrested in the hands of another British firm a debt due by the latter to an alien enemy, which was not payable until twelve days after the outbreak of war, and an action of furthcoming having been brought against the arrestees, the House of Lords, on the ground that a question of importance was raised on which it was not desirable to express an opinion, continued a sist till the end of the war, and dismissed without expenses an appeal against an interlocutor sisting the action.

Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, Lord Shaw, and Lord Parmoor
[1918] UKHL 437, 55 SLR 437
Bailii
Scotland

Contract

Updated: 08 January 2022; Ref: scu.631475

Charrington and Co Ltd v Wooder: HL 10 Dec 1913

The lessors of a ‘tied house’ agreed to supply their tenants with malt liquors at ‘the fair market price.’ The respondent claimed to be supplied at such price as he could have bought in the open market, the appellants to charge the ordinary rates applicable to tied houses. Held that the ‘market price’ was the ordinary price charged to tied houses.

Lord Chancellor (Viscount Haldane), Lords Kinnear, Dunedin, and Atkinson
[1913] UKHL 863, 51 SLR 863
Bailii
England and Wales

Landlord and Tenant, Contract

Updated: 08 January 2022; Ref: scu.632760

Teacher v Calder: SCS 25 Feb 1898

An agreement was entered into between T and C, whereby, as interest for an advance made by T for the purpose of carrying on and extending the business of C’s firm, he was to receive a certain percentage of the profits of the business. It was provided that the books of the firm should be audited annually by a particular firm of accountants, whose certificates ‘shall be binding on both parties as finally fixing the amount of the profits in each year.’ Notice of this agreement and of its terms was given by T to one of the partners of the firm of auditors, but they were not communicated by him to the partner who actually conducted the audit. While aware that T had an interest in the profits, the latter did not know the terms of the agreement, and in particular did not know that his audit was finally binding on the parties. T had access to the books of the firm, and had frequent meetings with the auditor.
In an action for a judicial accounting raised by T at the termination of the agreement, he maintained that the auditor’s certificates were not binding on him, because the audits made were not such as were contemplated under the agreement.
Held, on a proof ( diss. Lord Adam), that the certificates of the auditor were certificates under the agreement, and that accordingly the pursuer was not entitled to an accounting.

Lord Low
[1898] SLR 35 – 517
Bailii
Scotland
Cited by:
Appeal From – Teacher v Calder HL 24-Jul-1899
The mere fact that the defendant’s breach of his contract with the plaintiff has enabled him to enter into a more profitable contract with someone else should also not be sufficient to justify departing from the normal rules for calculation of . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 08 January 2022; Ref: scu.612185

Pedriks v Grimaux: QBD 21 Dec 2021

Mr Pedriks alleges that Mr Grimaux is in breach of a Mediation Settlement Agreement (‘MSA’) entered into in January 2015, the terms of an oral agreement made in September 2016 concerning the sale of the business of Ticketpro Limited (‘TL’ and ‘the 2016 Agreement’) and fiduciary duties. As well as damages for breach of contract, he seeks the taking of accounts and inquiries in relation to the alleged misappropriation of company funds. Mr Grimaux denies that a binding agreement was reached in September 2016 and denies all alleged breaches of contract and duties.

Mrs Justice Heather Williams DBE
[2021] EWHC 3448 (QB)
Bailii
England and Wales

Contract

Updated: 08 January 2022; Ref: scu.670655

Severfield (UK) Ltd v Duro Felguera UK Ltd: TCC 24 Nov 2015

The court considered the potential difficulty of payment provisions under a contract concerned with both construction operations and operations which are excluded by the 1996 Act (sometimes referred to as a hybrid contract), and the particular consequences for such a contract of the notice provisions in sections 110, 110A, 110B and 111 of the Act, and the recent line of authority spelling out the consequences for an employer of failing to serve the notices required by those provisions.

Couson J
[2015] EWHC 3352 (TCC)
Bailii
Housing Grants (Construction and Regeneration) Act 1996
England and Wales

Contract, Construction

Updated: 07 January 2022; Ref: scu.556347

Bonhams 1973 Ltd v Lawson and Others: CA 16 Jul 2015

Application for permission to appeal a case management decision that Mr Zanotti should serve a statement of case setting out whether he has any claim to interest in a car which has been auctioned by Bonhams and is currently sitting in a warehouse in Southampton.

Longmore LJ
[2015] EWCA Civ 1062
Bailii
England and Wales

Contract, Litigation Practice

Updated: 07 January 2022; Ref: scu.556215

FFI-Global Srl v Outeiro Ltd and Another: CA 26 Nov 2015

Appeal by the defendants, Outeiro, against an order granting summary judgment against Outeiro in the sum of andpound;366,999 for goods ordered and supplied but stayed enforcement of the judgment for any sums in excess of andpound;300,000 pending the trial of Outeiro’s counterclaim for damages based on the alleged late delivery and defective condition of the goods.

[2015] EWCA Civ 1212
Bailii
England and Wales

Contract

Updated: 06 January 2022; Ref: scu.555004

De Boinville v I G Index Ltd: ComC 10 Dec 2021

The Claimant, Mr Nicholas de Boinville, brings claims against the Defendant, a provider of Spread Betting Services on an ‘execution only’ basis, for damages for breach of contract, breach of fiduciary duty, misrepresentation and a statutory claim under section 150 (which was replaced on 1 April 2013) by section 138D of the Financial Services and Markets Act 2000 (‘FSMA’) for damages for alleged breaches of the applicable Conduct of Business Sourcebook (‘COBS’) Rules, contained in the Handbook of Financial Services Authority

Mr Andrew Hochhauser QC,
Sitting as a Deputy Judge of the High Court
[2021] EWHC 3326 (Comm)
Bailii
England and Wales

Contract, Torts – Other

Updated: 06 January 2022; Ref: scu.670490

GBM Minerals Engineering Consultants Ltd v GB Minerals Holdings Ltd: TCC 21 Oct 2015

‘the claimant, GBM Minerals Engineering Consultants Ltd claims a sum slightly in excess of andpound;594,000, said to be due under a contract dated 18 January 2010, pursuant to which the defendant, a Canadian company called GB Minerals Holdings Ltd, engaged it to carry out consultancy services in connection with a project in Guinea-Bissau in West Africa. There is a sizeable counterclaim by the defendant which is currently pleaded in the sum of about andpound;4 million, brought on the basis that the defendant has significantly overpaid the claimant for the work carried out, and seeking damages for negligent performance.’

Fraser J
[2015] EWHC 2954 (TCC)
Bailii
England and Wales
Cited by:
See Also – GBM Minerals Engineering Consultants Ltd v GB Minerals Holdings Ltd (No 2 Costs) TCC 28-Oct-2015
. .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 January 2022; Ref: scu.554187

One Money Mail Ltd v RIA Financial Services and Another: CA 29 Oct 2015

This appeal raises the question whether an agreement, made by an agent, to procure clients in and around Hereford for the claimantm a company which carries on the business of transferring money between the United Kingdom and Poland, has clauses which are in restraint of trade and thus prevented the agent from working for a competitor during the currency of the contract and for six months after termination.

Longmore, Lloyd Jones, Briggs LJJ
[2015] EWCA Civ 1084
Bailii
England and Wales

Contract, Agency

Updated: 05 January 2022; Ref: scu.554107

Volrath Tham, Merchant In Gottenburgh v Charles Sheriff, and Richard Sheriff: HL 23 Apr 1725

Factor – A foreign factor advises his correspondents, that he has disposed of a cargo, and shipped returns for it, on both which he charges commission; he afterwards brings an action against the correspondents, alleging that he had lent his own goods, and had not received proceeds for theirs; but he is not allowed to prove facts contrary to his correspondence.
The knowledge of the ship-master, though Supercargo, and part owner, not relevant against the correspondence.
Proof – The factor having refused to allow a proof of the ship-master’s knowledge by his own oath, a proof by witnesses is refused him.

[1725] UKHL Robertson – 534, (1725) Robertson 534
Bailii

Scotland, Contract

Updated: 05 January 2022; Ref: scu.554121

Mortgage Express v Countrywide Surveyors Ltd: CA 29 Oct 2015

This appeal turns on a short point of construction of a written agreement between the First Claimant and the Defendant (the ‘Standstill Agreement’). This provided that time would be suspended for the purposes of any limitation defence in relation to claims made by the Claimants.

Arden, Gloster, Simon LJJ
[2015] EWCA Civ 1110
Bailii
England and Wales

Contract, Limitation

Updated: 05 January 2022; Ref: scu.554106

Von Hatzfeldt-Wildensburg v Alexander: ChD 26 Jul 1911

A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored. The fact that the reference to the more formal document is in words which according to their natural construction import a condition is generally, if not invariably, conclusive against the reference being treated as the expression of a mere desire.’

Parker J
[1912] 1 Ch 284, [1911-13] All ER Rep 148, 81 LJ Ch 184, [1911] UKLawRpCh 9
Commonlii
England and Wales
Cited by:
Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .
Cited – Munton v Greater London Council CA 1976
With respect to the words ‘subject to contract’, Lord Denning said, ‘It is of the greatest importance that no doubt should be thrown on the effect of those words’. As to the difference netween the procedures of compulsory purchase and ordinary . .
Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .
Applied – Cranleigh Precision Engineering Ltd v Bryant 1965
The parties drew up heads of agreement. The heads of agreement provided for the assignment by Mr Bryant of certain patents and designs in return for a royalty. They also provided that Mr Bryant and the company would enter into a service agreement on . .
Cited – The Anemone 1987
Owners wished to let their vessel on time charter to Afram Line Limited but were unwilling to do so without a guarantee. The negotiations were conducted by Centre Shipping on behalf of owners and Dipgrove Holdings on behalf of charterers. It was . .
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: 05 January 2022; Ref: scu.183729

Messer UK Ltd and Another v Britvic Soft Drinks Ltd and others: CA 30 Apr 2002

The parties contracted for the supply of material to be used in the manufacture of drinks. The material was to be supplied according to a recognised British Standard.
Held: The use of the British Standard of itself was not sufficient to imply any warranty of satisfactory quality or fitness for purpose upon which a purchaser could rely. Nevertheless, the manufacturer could not rely upon a term excluding liability for breach of warranty under the 1979 Act since this term was unreasonable under the 1977 Act.

Tomlinson J
Times 22-May-2002, [2002] EWCA Civ 548, [2002] 2 All ER (Comm) 335, [2002] 2 Lloyd’s Rep 379
Bailii, Bailii
Sale of Goods Act 1979 14, Unfair Contract Terms Act 1977 3
England and Wales
Citing:
Appeal from – Britvic Soft Drinks Ltd v Messer UK Ltd ChD 2002
Britvic purchased bulk CO2 for the carbonation of various soft and alcoholic drinks from a supplier. The CO2 was manufactured by others. As a result of a breakdown of the manufacturing process, the CO2 contained a concentration of benzene which, . .

Cited by:
Appealed to – Britvic Soft Drinks Ltd v Messer UK Ltd ChD 2002
Britvic purchased bulk CO2 for the carbonation of various soft and alcoholic drinks from a supplier. The CO2 was manufactured by others. As a result of a breakdown of the manufacturing process, the CO2 contained a concentration of benzene which, . .

Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 05 January 2022; Ref: scu.171228

Barry v Davies (T/A Heathcote Ball and Co) and Others: CA 27 Jul 2000

The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.
Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or only bid was too low. To do so was to put himself in a position as if he was bidding for the seller, and that was not allowed save under the Act. The auctioneer himself was liable in damages to the disappointed bidder in a sum equivalent to the market value less the rejected bid.

Pill LJ, Sir Murray Suart-Smith
Times 31-Aug-2000, Gazette 12-Oct-2000, [2000] EWCA Civ 235
Bailii
Sale of Goods Act 1979 57(4)
England and Wales
Citing:
Cited – Payne v Cave 2-May-1789
Auction Bid Withdrawn Before Hammer Fell
The defendant’s bid for a worm-tub, and a pewter worm was highest at the auction, but he withdrew his bid before the hammer fell. The auction was under standard conditions.
Held: No contract had been made. The bid was an offer which could be . .
Cited – Thornett v Haines 28-Apr-1846
Where a sale by auction is advertised or stated by the auctioneer to be ‘without reserve’, the employment by the vendor of a puffer to bid for him, without notice, renders the sale void, and entitles the purchaser to recover back his deposit from . .
Cited – Harris v Nickerson QBD 25-Apr-1873
The defendant auctioneer advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St Edmunds on a certain day and two following days. The plaintiff, a commission broker in London, . .
Cited – Warlow v Harrison QBD 25-Nov-1858
Whether Auctioneer liable to bidder – vendor’s bid
Three following horses were advertised for sale at auction being the property of a gentleman and sold without reserve. The auctioneer had knocked one down as sold for 61 guineas, but the bid was from the owner. The plaintiff sued the auctioneer, . .
Cited – Warlow v Harrison CExC 26-Nov-1859
Unless public notice of this was given, a bid from the seller himself was fraudulent. He appealed against rejection of his claim against the auctioneer.
Held: The appeal failed on the existing pleadings, but said that the plaintiff might . .
Cited – Mainprice v Westley 4-Jul-1865
Liability of auctioneer. Sale without reserve. Undisclosed principal – 1. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale . .
Cited – Harris v Nickerson QBD 25-Apr-1873
The defendant auctioneer advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St Edmunds on a certain day and two following days. The plaintiff, a commission broker in London, . .
Cited – Fenwick v MacDonald Fraser and Co SCS 29-Jun-1904
A sale of farm animals by auction was not made without reserve because the condition of sale reserved to the owner the right to make one offer for each animal. The Lord Ordinary Lord Kyllachy had decided the case both on the grounds that there was a . .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer, Damages, Agency, Contract

Updated: 05 January 2022; Ref: scu.78262

Thomas Paterson, Esq v Archibald Ogilvie, and Anthony Murray, Esq: HL 20 Apr 1724

Process – Qualified Condescendance – In the reduction of a bond, bearing to be for money lent, for want of an onerous cause, the defender acknowledges that the consideration was the future transfer of South Sea stock, and states that such transfer was afterwards made accordingly to the pursuer’s order. This quality in the condescendance did not prove against the pursuers.

[1724] UKHL Robertson – 499, (1724) Robertson 499
Bailii
Scotland

Contract

Updated: 05 January 2022; Ref: scu.553906

Kaki v National Private Air Transport Company and Another: CA 13 May 2015

The Sheik’s claim arises out of an agreement for the purchase of a 2.5 per cent interest in a Gulf Stream 450 aircraft (‘the Aircraft’) for US$4,398,750 (‘the Agreement’). The claimant alleges that NAS failed to deliver the interest in the aircraft and to satisfy certain conditions precedent and that, accordingly, the Sheik is entitled to return of the US$4,398,750 or to an equivalent amount of damages.

Aikens, Sharp, Bean LJJ
[2015] EWCA Civ 731
Bailii
England and Wales

Contract

Updated: 05 January 2022; Ref: scu.553831

Thomas Rigge, of Mortoun, Esq; v Alexander Abercrombie, of Tullibodie, Esq;: HL 18 Mar 1723

Negotiorum Gestor – The respondent having sent money by the appellant, to be by a third person laid out in stock, in his own name; on the death of this third person the appellant could not warrantably lay out the respondent’s money in stock, in his the appellant’s name.
Proof – In this case the son of the person deceased, having by letter given the first notice of the transaction to the respondent, and mentioned that the appellant has informed the writer of the letter, that he had given the respondent his option to stand to the bargain or not, this letter is held to be proof of such option tendered.

[1723] UKHL Robertson – 438, (1723) Robertson 438
Bailii
Scotland

Contract

Updated: 05 January 2022; Ref: scu.553800

PST Energy 7 Shipping Llc Product Shipping and Trading SA v OW Bunker Malta Ltd and Others: CA 22 Oct 2015

The oil owners had contracted for its transport with OWBM aboard Res Cogitans under standard terms which would allow the captain to use the oil for navigation before transfer of the title in the oil. The court was now asked whether the agreement amounted to a sale governed by 1979 Act allowing for a claim for payment of the price under section 49(1).
Held:
Moore-Bick V-P said: ‘Whatever label one attaches to the contract (and I see nothing incongruous in describing it in commercial terms as a contract for the sale of goods), its essential nature is in my view reasonably clear. It is a contract under which goods are to be delivered to the owners as bailees with a licence to consume them for the propulsion of the vessel, coupled with an agreement to sell any quantity remaining at the date of payment, in return for a money consideration which in commercial terms can properly be described as the price. That may not satisfy the definition of a contract of sale of goods in section 2(1) of the 1979 Act, but there is no reason why the incidents of a contract of sale of goods for which the Act provides should not apply equally to such a contract at common law, save to the extent that they are inconsistent with the parties’ agreement. The difficulties in the present case stem entirely from the owners’ attempt to establish that the consideration for the payment of the price was the transfer of property in the whole of the goods to which the contract related, despite the fact that that does not correspond to the express terms of the contract relating to the use of the goods and the passing of title. The commercial background and the terms of the contract make it clear that what the owners contracted for was not the transfer of property in the whole of the bunkers, but the delivery of a quantity of bunkers which they had an immediate right to use but for which they would not have to pay until the period of credit expired. From the suppliers’ point of view the retention of title clause provided an ever diminishing degree of security for the payment of what was due to them. Since the contract provided for the transfer to the owners of property in any part of the bunkers remaining at the time of payment, it was to that extent a contract for the sale of goods to which the Act, including the implied condition in section 12, applied. A failure to pass title to any residue remaining at the time of payment would therefore involve a breach of contract, but it would not be one which entitled the owners to treat the contract as a whole as discharged, unless (contrary to all expectations) it represented such a large proportion of the quantity originally delivered that there could be said to have been a total failure of consideration.
For these reasons I agree with the judge that the transfer of property in the bunkers from OWBM to the owners was not the essential subject matter of the contract and that a failure to transfer property in the bunkers, all of which had been consumed when the period of credit expired, did not relieve the owners of the obligation to pay for them.’

Moore-Bick VP CA, Longmore, McCombe LJJ
[2015] EWCA Civ 1058, [2016] 1 All ER (Comm) 503, [2016] 2 WLR 1072, [2016] 1 Lloyd’s Rep 228, [2015] WLR(D) 426
Bailii, WLRD
Sale of Goods Act 1979 2 49(1)
England and Wales
Citing:
At ComC – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another (Res Cogitans) ComC 14-Jul-2015
The OW Bunker Group had gone into insolvency. Purchasers from them were no concerned at the possibility, under the industry standard tersm, of having to pay twice.
Held: The owners’ appeal from the arbitration award failed.
The court . .
Cited – Arnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Cited – Clough Mill Ltd v Martin CA 1984
The plaintiff had supplied yarn to a company H on terms that the goods were to remain its property until paid for in full, although H was granted the power to sell the goods or use them for the purpose of manufacturing products. The terms also . .
Cited – Borden (UK) Ltd v Scottish Timber Products Ltd CA 1979
The plaintiff sold a quantity of resin to the defendant for use in the manufacture of chipboard. The contract contained a reservation of title clause, but both parties contemplated that the resin would be used in the process of production before it . .

Cited by:
At CA – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .

Lists of cited by and citing cases may be incomplete.

Contract, Transport, Insolvency

Updated: 05 January 2022; Ref: scu.553685

Actial Farmaceutica Lda v De Simone: CA 6 Aug 2015

The parties disputed the use of confidential information regarding methods for the preparation of special youghurt bacteria. Appeal was now made by the defendant against interim orders made.

Jackson, Kitchin Ryder LJJ
[2015] EWCA Civ 1032
Bailii
England and Wales

Contempt of Court, Contract, Intellectual Property

Updated: 05 January 2022; Ref: scu.553679

Thomas Fairholm of Piltoun v Sir William Cockburn, and Sir George Hamilton, Baronet: HL 21 Jun 1720

Mutual Contract – Personal and real – A creditor by adjudication, with an unexpired legal and without infeftment, enters into an agreement with two other creditors, by which he consents that they shall be paid before him; in a competition between a singular successor of the adjudger with notice, and the representatives of those two creditors, it is found that the preference in the contract was perpetual, and that as it concerned a personal subject on which no infeftment had followed, it was effectual against the singular successors of the contractors.
Fraud – A creditor pursuing a judicial sale, enters into a contract before the sale to sell to a third party at a certain sum; he afterwards, at the sale, purchases for a smaller sum, but is obliged to account for the larger sum, which had been paid to him on terms of the prior contract.
Bona fides – A purchaser at a judicial sale having paid a debt bona fide to creditors ranked before him; in accounting to creditors who were prior to both, has allowance of such bona fide payment; but action of repetition is reserved to the prior creditors.

[1720] UKHL Robertson – 317, (1720) Robertson 317
Bailii
Scotland

Contract

Updated: 05 January 2022; Ref: scu.553651

Sir Peter Fraser of Doors v Isabel Sandilands, Widow of William Black Esq: HL 12 Jan 1719

Presumption – A person being sued in 1718 by the widow of one to whom, in 1697, he had granted a bond of pension for the consideration of managing the grantor’s law affairs; though never demanded by the grantee during his life, the bond is supported and the money decerned for.
Holograph – Whether holograph or not being referred to the oath of the grantor of a bond, the term is circumduced against him for not deponing.

[1719] UKHL Robertson – 209, (1719) Robertson 209
Bailii

Scotland, Contract

Updated: 04 January 2022; Ref: scu.553529

James Blackwood, of London, Merchant v John Hamilton of Grange: HL 26 Jan 1719

Tenor – The Court of Session having reduced a decree of proving the tenor of a bond, and an adjudication and decree of mails and duties following thereupon, for the reason that it was not proved who were the writer and witnesses: the judgment is, from the circumstances of the case, reversed, the reasons of reduction repelled, and the adjudication sustained.
Damage and Interest – The Court, in an interlocutor prior to those appealed from, having sustained the adjudication for the principal sum and interest, without all accumulation, penalties, and expences whatsoever, this latter part of their judgment is reversed.

[1719] UKHL Robertson – 211, (1719) Robertson 211
Bailii

Scotland, Contract

Updated: 04 January 2022; Ref: scu.553528

William Habkin, Belt-Maker In Edinburgh v Roger Hog, Merchant In Edinburgh: HL 19 Aug 1715

Annual Rent, Costs and Expences – two tradesmen having contracted to clothe a regiment, and to divide equally under a Denalty the sums to be received by virtue of an assignment of off-reckonings delivered to each of them : one of them afterwards receives a new assignment of off-reckonings, and a sum of money from the Treasury, and refusing to pay a balance due to the other, the Court ordained the person receiving the money, which, they found, fell under the first assignment, and their mutual contrail, to pay the balance due to the other, which however was restricted to a smaller sum than was claimed : but the Court having refused him damage and interest; upon appeal the judgment is reversed, and the respondent is ordered to pay to the appellant the principal sum found due to him, with the interest thereof, from the time the respondent received the remainder of the money; and the Court is ordered to cause the costs and expences of the appellant in the action to be taxed and ascertained and forthwith paid to him by the respondent.
No Specific sum being here awarded, proceedings afterwards upon the complaint of the appellant, relative to the taxing of his expences by the Court of Session, and resolutions and orders of committees and of the House there on a sum allowed to the complainant for his subsequent expences, in taxing costs.

[1715] UKHL Robertson – 147, (1715) Robertson 147
Bailii

Scotland, Contract

Updated: 04 January 2022; Ref: scu.553490

Katherine Lyon, Widow of John Lyon of Muiresk Esq v The Right Hon John Earl of Aboyne, An Infant, and Others: HL 22 Aug 1715

Costs and Expences – A person, having right to the balance of the price of an estate, which price was stipulated for in an agreement with penalty, obtains decrees in several different actions for principal and intereft; and in the last of these actions, insists for expences of all the former actions: the Court having found that in that action the expences of the others could not be allowed because there was probabilis causa litigandi, and since the did not insist for expences in her other actions; upon appeal the judgment is reversed, and the Court ordered to cause the cost and expences of all the actions to be taxed and paid to the appellant.
Subsequent proceedings of the House of Lords on two complaints by the appellant, that the Court had not taxed her costs; the House by a committee afterwards taxes the costs and expences of the Court of Session, and the expences of the said two complaints, and ordains the respondent (a minor), his tutors and curators, to pay 611 l 4 s. 4 .5 d. to the appellant for her costs and expences.
On the 3d of January 1667, Charles Earl of Aboyne, grand-father to the respondent Earl John, entered into articles of agreement with John Lyon of Muiresk, the appellant’s late

[1715] UKHL Robertson – 154, (1715) Robertson 154
Bailii
Scotland

Contract

Updated: 04 January 2022; Ref: scu.553489

Mr H TV Ltd v ITV2 Ltd: ComC 8 Oct 2015

The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that the defendant had wrongfully determined the contract, and the defendant said that the behaviour of the claimant’s owner was in repudiatory breach of and had undermined the contract.
Held: ITV2 was not entitled to terminate the Production Agreement and in purporting to do so ITV2 was itself in repudiatory breach of the Production Agreement.

Flaux J
[2015] EWHC 2840 (Comm)
Bailii
Citing:
Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc (‘The Reborn’) CA 10-Jun-2009
The court confirmed that the necessity to give business efficacy to a contract was still required for the implication of a term into a contract. . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Bedfordshire County Council v Fitzpatrick Contractors Ltd TCC 16-Oct-1998
Dyson J refused to imply a term of trust and confidence into a highway maintenance contract, stating: ‘the court should in any event be very slow to imply into a contract a term, especially one which is couched in rather general terms, where the . .
Cited – Jani-King (GB) Ltd v Pula Enterprises Ltd and others QBD 23-Oct-2007
. .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another CA 14-May-2014
The court considered the operation of a break clause within a lease, and in particular ‘ Can the court imply a term which enables the lessee to get back that part of the advance payment of rent which relates to a period (‘the broken period’) after . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Boston Deep Sea Fishing and Ice Co v Ansell CA 1888
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – 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 . .
Cited – Eminence Property Developments Ltd v Heaney CA 21-Oct-2010
The court was asked whether a vendor of land, who served a notice to complete making the time for completion of the essence of the sale contract, and then, mistakenly, treated the contract as at an end prior to the expiry of the notice, was thereby . .
Cited – Chelsfield Advisers Llp v Qatari Diar Real Estate Investment Company and Another ChD 15-May-2015
Application for summary judgment in respect of an agreement relating to the proposed redevelopment of the site of the embassy of the United States of America in Grosvenor Square.
Held: The court considered the authorities and principles to be . .
Cited – Abrahams v Herbert Reiach Limited CA 1922
Scrutton LJ said: ‘A defendant is not liable in damages for not doing what he is not bound to do.’
Atkin LJ said: ‘The proper method of assessment is . . to make a reasonable computation of the amount the respondents would have received had the . .
Cited – Aerospace Publishing Ltd and Another v Thames Water Utilities Ltd CA 11-Jan-2007
A substantial private archive of valuable books had been damaged when the defendant’s water mains burst. The court was asked to assess the value.
Held: The water company’s appeal failed save to a small extent. The articles were of substantial . .
Cited – Durham Tees Valley Airport Ltd v BMIbaby Ltd and Another CA 5-May-2010
Whilst it is correct that damages for breach of contract are assessed on the basis that the party in breach would have performed the contract in the manner least onerous to it, the court will make its counterfactual assessment on the basis that the . .

Lists of cited by and citing cases may be incomplete.

Contract, Media

Updated: 04 January 2022; Ref: scu.553254

Erste Bank Hungary Zrt v Attila Sugar: ECJ 1 Oct 2015

ECJ Judgment – Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts concluded between a seller or supplier and a consumer – Mortgage loan agreement – Article 7(1) – Stopping the use of unfair terms – Adequate and effective means – Acknowledgement of the debt – Notarised instrument – Affixation of the enforcement clause by a notary – Enforceable order – Notary’s obligations – Examination by the national court of its own motion of unfair terms – Judicial review – Principles of equivalence and effectiveness

M Ilesic P
ECLI:EU:C:2015:637, C-32/14, [2015] EUECJ C-32/14
Bailii
Directive 93/13/EEC 7(1)

European, Consumer, Contract

Updated: 04 January 2022; Ref: scu.552875

Back v Finland: ECHR 20 Jul 2004

The claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts.
Held: It must be open to a legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy that was being adopted.
As to A1P1, the court explained that it comprises ‘three distinct rules’: the first is ‘of a general nature and enunciates the principle of peaceful enjoyment of property’; the second covers ‘deprivation of possessions and makes it subject to certain conditions’; the third concerns the right of the state to ‘control the use of property in accordance with the general interest’. The court added:
‘The three rules are not ‘distinct’ in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule. Each of the two forms of interference defined must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised.’

37598/97, [2004] ECHR 360, (2005) 40 EHRR 48, [2005] BPIR 1
Worldlii, Bailii
European Convention on Human Rights A1P1
Human Rights
Cited by:
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
Cited – Mott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .
Cited – Mott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
Cited – Mott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Contract

Updated: 04 January 2022; Ref: scu.199504

Kreglinger v New Patagonia Meat and Cold Storage Co Ltd: HL 20 Nov 1913

The appellants sought to enforce an option granted them under an agreement by the respondents in consideration for a loan on the security of a mortgage. The loan having been repaid prior to the expiry of the option, the respondents declined to further implement the agreement, on the ground that the option granted to the appellants was of the nature of a collateral advantage limiting the debtor’s right of redemption.
Held that the stipulation in the agreement did not limit the right of redemption, and was therefore valid.
Observed per Lord Parker-There is now no rule in equity which precludes a mortgagee from stipulating for any collateral advantage, provided it is not either (1) unfair and unconscionable, or (2) in the nature of a penalty clogging the equity of redemption, or (3) inconsistent with the contractual and equitable right to redeem.
Observed per Lord Chancellor-The same general principles apply to a floating charge (vide De Beers, Limited v. British South Africa Company, 1912 A.C. 52, where there are dicta to the contrary).
Observations per Lord Chancellor on ‘the true limits of the use of authority.’

Lord Chancellor (Viscount Haldane), Earl of Halsbury, Lords Atkinson, Mersey, and Parker
[1913] UKHL 843, 51 SLR 843
Bailii
England and Wales

Contract, Land

Updated: 04 January 2022; Ref: scu.632759

Tyzack and Branfoot Steamship Co Ltd v Sandeman and Sons: HL 18 Jul 1913

A ship’s cargo consisted of a number of consignments of bales of jute, and at the port of delivery it was found that the number of bales was short by 14, while, further, 11 bales were unidentifiable with any particular consignment and contained a different quality of jute. In an action by the shipowners for freight against a firm of consignees who had received short delivery, held that the consignees were not bound to accept pro tanto a proportion of the unidentifiable bales.

Lord Chancellor (Haldane), Earl Loreburn, Lord Shaw, and Lord Moulton, Lord Parker being present at delivering judgment
[1913] UKHL 869
Bailii
England and Wales

Contract, Transport

Updated: 04 January 2022; Ref: scu.632753

M’Ellistram v Ballymaceltigott Co-Operative Agricultural and Dairy Society Ltd: HL 24 Mar 1919

In 1916 the respondent society which the appellant had joined in 1903 altered its rules. By the new rules, to which the appellant objected as in unreasonable restraint of trade, members became bound under penalty to sell their whole output of milk to the respondents at their price, whilst they were prohibited from withdrawing from membership of the society except with the consent of a committee of the members. The rules referred all disputes between the society and its members to the decision of the Irish Agricultural Organisation Society.
Held that a dispute as to validity of the rules of the society was not a dispute between the society and its members in terms of section 49 of the Industrial and Provident Societies Act 1893. The action was therefore competent- Heard v. Pickthorne, 1913, 3 K.B. 299.
Held further (dis. Lord Parmoor on the ground that membership of a cooperative society is analogous to a partnership), that as the combined effect of the new rules was to impose restrictions more onerous than reasonably necessary for the protection of the respondents’ business, they were ultra vires of the society.

Lord Chancellor (Birkenhead), Lords Finlay, Atkinson, Shaw, and Parmoor
[1919] UKHL 644, 56 SLR 644
Bailii
England and Wales

Contract

Updated: 04 January 2022; Ref: scu.632772

Claddagh Steamship Co Ltd v Thomas C Steven and Co: HL 1 Aug 1919

A trading company were anxious to purchase a ship for their business, and got in touch with a ship company which owned two ships, one free, one under requisition, and was willing to sell. The ship company, however, refused to sell the free ship alone, and after negotiations the trading company agreed to purchase both ships at pounds 100,000. The brokers made out a separate written contract for each ship, dividing the pounds 100,000 without consulting the sellers, which contracts were duly executed. Before the ships were delivered the Government put the free ship under requisition. The trading company refused to go further, and the ship company took action against them. Held (1) that it was competent for the trading company to prove by extrinsic evidence that the written contracts were not the real contracts of parties, but were merely the machinery for carrying out the real contract, which was for the sale of both the ships together; (2) that the purchase by the trading company of the one ship was of a free ship for their own trade, and the ship company could not insist on the purchase when the ship was no longer free; and (3) that the ship company being thus unable to fulfil the contract so far as the one ship was concerned could not insist on fulfilment in the case of the other.

Viscount Finlay, Viscount Cave, and Lords Dunedin, Shaw, and Wrenbury
[1919] UKHL 619, 56 SLR 619
Bailii
Scotland

Contract

Updated: 04 January 2022; Ref: scu.632786

Sellar v Highland Railway Co: HL 24 Jan 1919

Arbiters having disagreed devolved the reference upon the oversman, who issued proposed findings. One of the parties then discovered that the arbiter nominated by the other party, a railway company, held pounds 3700 ordinary stock therein, and intimated that in consequence he considered that the arbiter was disqualified from acting and that he would not hold himself bound by the award. In an action of reduction of the decreet-arbitral held that the ‘arbiter in question was disqualified, and that the decreet-arbitral was in consequence reducible at the instance of the other party to the reference.
Dimes v. Proprietors of the Grand Junction Canal, 1852, 3 C1. H.L. 759, followed.
In an arbitration the arbiter appointed by one of the parties, a railway company, held stock in that company; the other party reduced the decreet-arbitral by the oversman on the ground that the arbiter referred to was disqualified, and claimed the expenses incurred by him in the abortive reference. Held ( rev. judgment of the First Division) that he was not entitled to recover his expenses in respect that there was no contract between the parties from which it could be inferred that the other party was bound to appoint an arbiter against whom no objection could be taken; that there was no statutory duty imposed on the railway company to examine their registers to see that the arbiter appointed was not a shareholder; and that, even assuming there had been a breach of duty, the damages claimed were too remote.

Lord Buckmaster, Lord Finlay, Lord Dunedin, and Lord Atkinson
[1919] UKHL 216, 56 SLR 216
Bailii
Scotland

Contract, Arbitration

Updated: 04 January 2022; Ref: scu.632770

Goodram and Another v Camelot UK Lotteries Ltd: QBD 18 Sep 2020

Application by the Defendant by application notice for summary judgment of the Claimants’ claim. The Claimants’ claim is made in breach of contract and for an order for specific performance in respect of a scratch card purchased from Camelot. It is not in dispute that a scratch card purchased by the Claimants on 22 April 2019 was a ‘winning’ scratch card with a prize of pounds 4 million, nor that Camelot refused to make payment of the said sum to either Claimant.

Senior Master Fontaine
[2020] EWHC 2499 (QB)
Bailii
England and Wales

Contract

Updated: 04 January 2022; Ref: scu.670647

Lloyds TSB Bank Plc v Crowborough Properties Ltd and Others: CA 12 Feb 2013

The court was asked whether Lloyds TSB Bank Plc was entitled to rectify the terms of a compromise embodied in the schedule to a Tomlin order.

Mummery, Rimer, Lewison LJJ
[2013] EWCA Civ 107
Bailii
England and Wales
Citing:
Cited – Swainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Harlow Development Corporation v Kingsgate (Clothing Productions) Ltd 1973
The parties to a lease discussed the terms upon which the landlord would carry out substantial improvement works on the demised property in turn for an increase in rent. The parties had forgotten than the tenant had an option to acquire a long lease . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 03 January 2022; Ref: scu.551919

NH International (Caribbean) Ltd v National Insurance Property Development Company Ltd: PC 6 Aug 2015

Trinidad and Tobago – the parties disputed points arising from an arbitration as to the interpretation of the FIDIC General Conditions of Contract for Construction, First Edition 1999.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed
[2015] UKPC 37
Bailii
Commonwealth

Arbitration, Construction, Contract

Updated: 03 January 2022; Ref: scu.551032

Northrop Grumman Missions Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd: CA 30 Jul 2015

This appeal raises an issue as to the entitlement of the purchaser under a one-off commercial agreement for the supply of software licences during a defined period to terminate the agreement early ‘for convenience’.

Lord Dyson MR, Briggs, Bean LJJ
[2015] EWCA Civ 844
Bailii
England and Wales

Contract

Updated: 03 January 2022; Ref: scu.550944

Lomas and Others v Burlington Loan Management Ltd and Others: ComC 31 Jul 2015

‘This judgment concerns the construction and effect of agreements made since the commencement of the administration of Lehman Brothers International (Europe) (LBIE) between LBIE acting by its joint administrators and very significant numbers of its creditors.’

David Richards J
[2015] EWHC 2270 (Ch)
Bailii
Insolvency Act 1986
Citing:
See Also – Lomas and Others v Burlington Loan Management Ltd and Others (No 2) ComC 31-Jul-2015
‘This judgment considers issues concerning the entitlement of creditors to interest on their debts for periods after the commencement of the administration of Lehman Brothers International (Europe) (LBIE) on 15 September 2008.’ . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 03 January 2022; Ref: scu.550960

Royal Mail Estates Limited v Maple Teesdale Borzou Chaharsough Shirazi: ChD 2 Jul 2015

A contract had been made but one of the parties was not yet incorporated. The court was asked whether it was deemed to have been made with the signatory.
Held: For section 36C(1), a ‘contrary agreement’ would be established if the parties, looking at the matter objectively, had intended that the contract would not have effect as having been made with the ‘agent’.

Kliein QC HHJ
[2015] EWHC 1890 (Ch), [2015] WLR(D) 290, [2016] 1 WLR 942, [2015] BCC 647
Bailii, WLRD
Companies Act 1985 36C(1)
England and Wales
Citing:
Cited – Braymist Limited and Others v Wise Finance Company Limited CA 20-Feb-2002
The claimant company set out to sell land whilst it was still only in the process of incorporation. Its solicitors had signed as agents, and now sought an order for the purchaser to complete the contract. The respondent had not known of the . .
Cited – Phonogram Ltd v Lane CA 1982
A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one . .

Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 02 January 2022; Ref: scu.550339

PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another (Res Cogitans): ComC 14 Jul 2015

The OW Bunker Group had gone into insolvency. Purchasers from them were no concerned at the possibility, under the industry standard tersm, of having to pay twice.
Held: The owners’ appeal from the arbitration award failed.
The court rejected the owners’ argument that the contract was one for the sale of goods, holding that it was necessary to look behind the language of the contract to ascertain exactly what the parties had undertaken to do. OWBM had not undertaken to transfer property in the bunkers delivered to the vessel because both parties had specifically envisaged that some, if not all of them, were likely to have been consumed in the vessel’s engines before the time for payment had come. When that happened they ceased to exist and it became impossible to transfer property in them: ‘In these circumstances the question arises, as already mentioned, what was the consideration for the money payment which the Owners agreed to make if it was not the transfer of title? In my judgment the true nature of the parties’ bargain was that OWBM would deliver or arrange for delivery of the bunkers, which the Owners would be immediately entitled to use for the propulsion of the vessel.’
Males J approved the arbitrators’ reasoning in paragraph 51 of the award where they had said: ‘ Stripped of all unnecessary detail, the deal between the parties was that OWBM would ensure delivery of the bunkers, the use of which would be immediately available to the Owners, who would pay for them according to OWBM’s invoice. Such an agreement does quite obviously resemble in some respects a contract of sale, but its terms and their performance do not to any extent rely on property or title or their transfer.’
Obiter, Males J expressed his opinion on an appeal by OWBM which would only have arisen for decision if the appeal had succeeded, and granted permission to appeal to the owners, but refusing that of OWBM for its own cross appeal.

Males J
[2015] EWHC 2022 (Comm), [2015] 2 Lloyd’s Rep 563
Bailii
England and Wales
Citing:
Cited – FG Wilson (Engineering) Ltd v John Holt and Company (Liverpool) Ltd ComC 5-Sep-2012
. .

Cited by:
At ComC – PST Energy 7 Shipping Llc Product Shipping and Trading SA v OW Bunker Malta Ltd and Others CA 22-Oct-2015
The oil owners had contracted for its transport with OWBM aboard Res Cogitans under standard terms which would allow the captain to use the oil for navigation before transfer of the title in the oil. The court was now asked whether the agreement . .
At ComC – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 02 January 2022; Ref: scu.550208