Category: Contract

Rust v Abbey Life Assurance Co ltd: CA 1979

Delay in objection indicated assent to contract

The court was asked whether a binding contract had been concluded between an applicant for an investment in property bonds and the insurance company offering such bonds when, in response to an application form submitted by the applicant, accompanied by a cheque in the appropriate amount, the insurance company allocated units in the relevant fund to her and sent her a policy of insurance.
Held: A binding contract had been made in such circumstances. The failure by the proposed insured to reject the insurance policy offered to her for seven months, was enough to justify an inference that he had accepted the policy.
Brandon LJ said: ‘If I am wrong about that, however, it seems to me that the learned Deputy Judge’s decision should in the alternative be upheld on the second basis relied on by him. The plaintiff held the policy in her possession at the end of October 1973. She raised no objection to it of any kind until some seven months later. While it may well be that in many cases silence or inactivity is not evidence of acceptance, having regard to the facts of this case and the history of the transaction between the parties as previously set out, it seems to me to be an inevitable inference from the conduct of the plaintiff in doing and saying nothing for seven months that she accepted the policy as a valid contract between herself and the first defendant.’
Brandon LJ
[1979] 2 LLoyd’s Rep 334
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 . .
Cited – Cooper v National Westminster Bank Plc QBD 7-Dec-2009
. .
Cited – Shaw v James Scott Builders and Company and Another SCS 26-May-2010
. .
Cited – New Hampshire Insurance Company and Others v MGN Ltd and Others ComC 6-Sep-1996
. .
Cited – Arts and Antiques Ltd v Richards and Others ComC 5-Nov-2013
The court was asked whether the findings of a private arbitration could be relied upon as between other parties in an abuse of process argument. . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.266199

Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA: HL 1970

The court considered what was the proper law of the contract. The inquiry must always be to discover the law with which the contract has the closest and most real connection. The mere fact that arbitration was to be in London did not mean that what was in reality a French contract of affreightment had to be governed by English rather than French law. It did not matter at all that English arbitrators would have to apply French law. It is by no means uncommon for the proper law of the substantive contract to be different from the lex fori.
Lord Wilberforce, Lord Reid, Lord Morris of Borth-y-Gest, Lord Diplock
[1971] AC 572, [1970] 3 All ER 71
England and Wales
Cited by:
Cited – Lexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.372862

British Motor Trade Association v Gilbert: 1951

The Association had attempted to control the price of cars in the context of statutory support. It was after the Second World war and new cars were in short supply. Buyers of new cars had to contract not to sell the car bought for two years without first offering it for sale to the plaintiff at a price reflecting the depreciated price as new. The defendant was accused of breaching this term.
Held: The contract term was valid. The real value of the car was in fact 100 pounds less than had been paid for it to the defendant. Nevertheless the court awarded pounds 836 in damages. The plaintiff had suffered no direct financial loss but the award of damages for breach of contract would effectively strip the wrongdoer of the profit he had made from his wrongful venture into the black market for new cars. It was appropriate to go to what was described as a surreptitious market that was fed by persons who had broken their covenants.
Dankwerts J
[1951] 2 All ER 641
England and Wales
Cited by:
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Mouat v Betts Motors Ltd PC 20-Oct-1958
When setting a level of damages, a price on a surreptitious market should be used, if that gave the correct measure of the loss. . .
Cited – Islam, Regina v HL 10-Jun-2009
The defendant appealed against a confiscation order saying that it should not have been set at values which reflected the black market value of the drugs he had imported.
Held: The appeal failed. The court could take account of the illegal . .

These lists may be incomplete.
Updated: 16 June 2021; Ref: scu.180895

Schmaltz v Avery: 1851

An agent who signed a charterparty containing a cesser clause purportedly as agent for an unidentified principal could show that he was himself the principal and could sue on the contract, on the grounds that it was irrelevant to the third party who contracted on such terms to whom he was liable, and that the agent could say that he was his own principal.
[1851] EngR 68, (1851) 16 QB 655, (1851) 117 ER 1031
Commonlii
England and Wales
Cited by:
Well established – Newborne v Sensolid (Great Britain) Ltd 1954
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.296384

Golden Fleece Maritime Inc and Another v St Shipping and Transport Inc: CA 23 May 2008

The ships let under charter failed to comply with the Marine Pollution Convention which made it not possible for the charterer to fulfill its contract. The owners appealed against a finding that they were liable to the charterers.
Held: The appeal failed. Though the wording used was strange, on any reading the ship was not compliant.
Longmore LJ, Sir Anthony Clarke MR, Collins LJ
[2008] EWCA Civ 584, Times 10-Jun-2008, [2008] 2 Lloyd’s Rep 119, [2008] 1 CLC 861
Bailii
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972
England and Wales
Citing:
Appeal from – Golden Fleece Maritime Inc and Another v St Shipping and Transport Inc Comc 2-Aug-2007
Ship owners were liable in damages to their charterer who was unable to fulfil its contracts because the ships did not comply with the Marine Pollution Convention. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.267999

Orion Finance Ltd v J D Williams and Company Ltd: CA 23 Jun 1995

The finance company had taken an assignment of the benefit of a lease of computer equipment and sought payment from the defendants.
[1995] EWCA Civ 1
England and Wales
Citing:
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – Orion Finance Ltd v Crown Financial Management Ltd 1994
. .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.200686

Vitol Sa v Norelf Ltd (‘the Santa Cara’): CA 26 May 1995

The parties agreed to buy and sell molasses to be delivered on the Santa Clara which was set to leave on a certain date. The market was falling, and when the buyer saw that the ship would not be ready in time, it sent a telex saying that this was a breach of condition, and repudiated the contract. The sellers did nothing, but later sold the cargo at a substantial loss. The buyers now appealed a decision that they were liable saying that the seller’s failure to act could not amount to an acceptance of their repudiation.
Held: The buyer’s appeal succeeded. More was needed to accept a repudiation than failure to perform the contractual obligations. A mere failure to perform must always be equivocal.
An innocent parties’ failure to complete a contract was not an acceptance of a repudiation.
Nourse, Kennedy, Hirst LJJ
Times 02-Jun-1995, Ind Summary 12-Jun-1995, [1995] 3 All ER 971, [1996] QB 108
England and Wales
Citing:
Appeal from – Vitol Sa v Norelf Ltd (the ‘Santa Clara’) QBD 30-Apr-1993
The parties chartered for delivery of molasses. The ship was not going to be ready for the intended start date and the charterer repudiated the contract in a telex alleging breach of condition. The market was falling rapidly. The sellers did . .
Cited – State Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .

Cited by:
Appeal from – 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 . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.90183

International Fina Services AG v Katrina Shipping Ltd, The Fina Samco: CA 1995

Neill LJ said that it was necessary when construing a commercial document to strive to attribute to it a meaning which accords with business common sense. The primary focus is the agreement itself which ‘must speak for itself, but . . must do so in situ and not be transported to a laboratory for microscopic analysis’.
Neill, Roch and Auld LJJ
[1995] 2 Lloyd’s Rep 344
England and Wales

Updated: 02 June 2021; Ref: scu.450166

Nationwide Anglia Building Society v Ahmed: CA 1995

The First Defendant agreed to purchase a business from the Second Defendant for andpound;160,000. andpound;80,000 was raised by way of a secured loan from the plaintiff and was paid to the Second Defendant. The balance of andpound;80,000 was left outstanding and secured by way of a second charge against the property. The arrangements for the sale and purchase of the business and the property were embodied in a contract. The agreement said that the Plaintiffs’ charge would rank before the Second Defendant’s. A Clause provided that the Second Defendant was to retain the use of the property until the whole of the principal money and. interest due under the agreement had been paid. The transfer and mortgage deed were co-dated with the contract. The First Defendant failed to pay both the Second Defendant, and also the mortgage. In possession proceedings the Second Defendant defended on the grounds that the Plaintiffs were not entitled to possession of the property, the Second Defendant’s overriding interest in the property taking priority over the first legal charge. It was argued that the Second Defendant had an unpaid vendor’s lien which had priority over the first charge.
Held: The submission failed. There was no vendor’s lien because the Second Defendant had received all he bargained for when he received the second charge, and the rights under the clause were a contractual licence which could not give rise to an overriding interest. Only proprietary interests can be overriding.
The submission also failed because of the decision in Cann.
Aldous LJ continued: ‘The submission also fails because the charges, the agreement and the transfer were all signed on the same day namely June 1. Thus, his right to occupation under clause 6 did not accrue prior to the creation of the respondent’s charge. In Abbey National Buildins Society v. Cann the House of Lords decided that the relevant date for determining the existence of an overriding interest was the date of registration of the estate affected. In this case that date was August 3, 1990. They went on to hold that to acquire an overriding interest against a chargee by virtue of occupation, the person claiming the interest had to have been in actual occupation at the time of the creation of the legal estate. In this case that was June 1, 1990. They concluded that when a purchaser relied on a building society, such as the respondent, to enable completion, the transactions involved were one indivisible transaction and, therefore, there was no scintilla temporis during which the right to occupation vested free of charge.
The same reasoning is applicable to the facts of this case. On June 1, the contract, the transfer and the legal charges were completed. They formed an indivisible transaction and there was no scintilla temporis during which any right to occupation under clause 6 of the agreement vested in the appellant which was free of the respondent’s charge. Thus, the right given by clause 6 did not provide an overriding interest under section 70(1)(g) of the 1925 Act even if the right was a proprietary right.
Mr Collins submitted that that conclusion ignored the reality of the position and that at all times the appellant was in occupation. However that submission ignores the reality of the legal position. The appellant gave up his right to occupy as an unpaid vendor by signing the agreement and thereby obtained permission to occupy, which permission did not take effect prior to the respondent’s charge.’
Aldous LJ
(1995) 70 P and CR 381
England and Wales
Cited by:
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
cook_mbpCA2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.450470

Calvert v The London Dock Company: CA 13 Feb 1838

The owner had overpaid the contractor for the work done without the consent of the sureties It was held that the sureties were released. Langdale MR said: ‘And the company, instead of keeping themselves in the situation of debtors . . become creditors to a large amount, without any security.’
Langdale MR
[1838] EngR 449, (1838-1838) 2 Keen 638, (1838) 48 ER 774
Commonlii
England and Wales

Updated: 02 June 2021; Ref: scu.312455

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 rescission for duress was not available: ‘the common law remedy of rescission on the grounds of duress requires an ability to give counter restitution. My reasons for reaching that conclusion may be summarised as follows:
i) Rescission at common law on the grounds of fraudulent misrepresentation required an ability to give counter restitution.
ii) The logic of rescission is that the parties are put back into the position in which they would have been had there been no contract. That logic requires an ability to give counter restitution.
iii) Although no case has been found in which it was held that an ability to give counter restitution is required in order to rescind a contract on the grounds of duress there is no reason why the nature of the remedy of rescission or the circumstances in which it is available should differ depending upon whether the ground of rescission is fraud or duress. ‘
and ‘[E]quity, when dealing with rescission, applies the principles of counter restitution, albeit in a broader sense than those principles were applied at common law. That is because, in circumstances where counter restitution is required when a contract is rescinded or avoided both at common law on the grounds of fraudulent misrepresentation and in equity on the grounds of innocent misrepresentation or undue influence, there does not appear to me to be any good reason of justice or logic why it is not required when a contract is rescinded or avoided at common law on the grounds of duress. ‘
Nigel Teare QC
[2006] 3 WLR 946, [2006] EWHC 1642 (Comm), Times 18-Jul-2006, [2006] EWHC 1728 (Comm), [2006] 3 All ER 1139, [2007] QB 88, [2006] 2 CLC 479, [2006] 2 All ER (Comm) 484
Bailii, Bailii
England and Wales
Citing:
Cited – Dunbar Bank Plc v Maurice Nadeem Zubaida Nadeem and Another CA 1-Jul-1998
Manifest disadvantage had to be shown in order to establish a claim of presumed undue influence, but only damage if actual undue influence shown. Equity can only help if restitutio in integrum could be achieved. . .
Cited – Dorimex Srl; Tradex Srl and Intertrade Srl v Visage Imports Limited CA 18-May-1999
In relation to a plea of economic duress the trial judge, His Honour Judge Diamond QC, had directed himself ‘impeccably’ by reference to principles stated in Snell ‘s Equity 29th ed. and Goff and Jones on the Law of Restitution. The defence of . .
Cited – 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: . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – The Western Bank of Scotland v Addie HL 1867
Rescission of a share purchase agreement was sought on the grounds of fraudulent misrepresentation.
Held: Lord Cranworth said: ‘Relief under the first head, which is what in Scotland is designated restitutio in integrum, can only be had where . .
Cited – 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.’ . .
Cited – Spence v Crawford HL 1939
The vendor of shares sought rescission of a contract for their sale.
Held: He succeeded. Express orders for their return were made.
Lord Wright said: ‘Restoration, however, is essential to the idea of restitution. To take the simplest . .
Cited – Barton v Armstrong PC 5-Dec-1973
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was . .
Cited – Adam v Newbigging HL 1988
There was a sale of a share in a partnership, which had become insolvent since the contract.
Held: The House ordered rescission and mutual restitution, though the misrepresentation was not fraudulent, and it gave ancillary directions so as to . .
Cited – O’Sullivan v Management Agency and Music Limited CA 1985
osullivan_mamCA1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
Cited – Abram Steamship Company v Westville Shipping Company HL 1923
The defendant argued for rescission of a shipbuilding contract for misrepresentation.
Held: Rescission in the general law of contract is by act of the innocent party operating independently of the court. When a contract is avoided the remedies . .
Cited – Redgrave v Hurd CA 1881
The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the . .
See Also – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .

Cited by:
Appeal from – Halpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .

These lists may be incomplete.
Updated: 26 March 2021; Ref: scu.243074

Winn v Bull: 1877

By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was ‘subject to the preparation and approval of a formal contract’. The plaintiff sought specific performance.
Held: The words ‘subject to the preparation and approval of a formal contract’ in a document prevented the document from being held to be a final agreement of which specific performance could be enforced.
Sir George Jessel MR said: ‘It comes, therefore, to this, that where you have a proposal or agreement made in writing expressed to be subject to a formal contract being prepared, it means what it says; it is subject to and is dependent upon a formal contract being prepared. When it is not expressly stated to be subject to a formal contract it becomes a question of construction, whether the parties intended that the terms agreed on should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail’
Sir George Jessel MR
(1877) 7 Ch D 29, 47 LJ Ch 139, 42 JP 230, 26 WR 230
England and Wales
Cited by:
Followed – Rossdale v Denny CA 1921
The plaintiff offered in writing to purchase a leasehold house, but the letter was to take effect ‘on signing of a formal contract’ and ‘This offer is subject to a formal contract to embody such reasonable provisions as my solicitors may approve’. . .
[1921] 90 LJ Ch 204, [1921] 1 Ch 57, [1921] 124 LTR 294, [1921] 37 TLR 45, [1921] 65 Sol Jo 59
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 . .
[2003] EWCh 1274 (Ch), Times 12-Jun-03
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, . .
[2006] EWHC 813 (Ch), Times 16-May-06, [2006] 1 WLR 1543
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 . .
[2008] EWHC 2286 (Ch)

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.183731

Mason v Provident Clothing and Supply Co Ltd: 1913

To uphold restrictions which a covenant imposes upon the freedom of action of the servant after he has left the service of the master, the master must satisfy the Court that the restrictions are no greater than are reasonably necessary for the protection of the master in his business.
Courts should be reluctant to read down a potentially excessively wide covenant to make it enforceable. If severance is sought, the court should ask whether that which is unenforceable ‘part of the main purport and substance’ of the clause in which it appears?
Lord Moulton said: ‘It would in my opinion be pessimi exempli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the Courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be remembered that the real sanction at the back of these covenants is the terror and expense of litigation, in which the servant is usually at a great disadvantage, in view of the longer purse of his master.’
Lord Moulton
[1913] AC 724
Cited by:

These lists may be incomplete.
Updated: 07 December 2020; Ref: scu.416384

Kearley v Thompson: 1890

The plaintiff could claim a locus poenitentiae on the grounds of repentance because its confession to the fraud was the result of the frustration by others of its fraudulent purpose. Recovery under a contract performed unlawfully was barred once it had been partly performed.
References: (1890) 24 QBD 742
Jurisdiction: England and Wales
This case is cited by:

  • Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
    The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
    ([2004] EWHC 231 (QB), , Times 27-Feb-04, Gazette 25-Mar-04, [2004] BVC 779, [2004] 2 Lloyds Rep 92, [2004] STC 1535, [2004] STI 497, [2004] BTC 5720)
  • Cited – SQ v RQ and Another FD 31-Jul-2008
    The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
    (, [2008] EWHC 1874 (Fam), [2009] WTLR 1591, [2009] 1 P and CR DG5, [2009] Fam Law 17, (2008-09) 11 ITELR 748, [2009] 1 FLR 935)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194060

British Airways Board v Taylor: HL 1976

Lord Wilberforce said: ‘My Lords, the distinction in law between a promise as to future action, which may be broken or kept, and a statement as to existing fact, which may be true or false, is clear enough. There may be inherent in a promise an implied statement as to a fact, and where this is really the case, the court can attach appropriate consequences to any falsity in, or recklessness in the making of, that statement. Everyone is familiar with the proposition that a statement of intention may itself be a statement of fact and so capable of being true or false. But this proposition should not be used as a general solvent to transform the one type of assurance with another: the distinction is a real one and requires to be respected, particularly where the effect of treating an assurance as a statement is to attract criminal consequences, as in the present case.’
References: [1976] 1 WLR 13
Judges: Lord Wilberforce
Statutes: Trade Descriptions Act 1968 14(1)
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Shropshire County Council (David Walker) v Simon Dudley Limited Admn 17-Dec-1996
    A customer’s description of the goods he required was a trade description for the future supply of those goods by the seller claiming to fulfil that specification. The trading standards officer appealed dismissal of his prosecution of the defendant . .
    (Times 03-Jan-97, , [1996] EWHC Admin 376)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194020

Chaplin and Co Ltd v Brammall: CA 1908

The plaintiffs, having agreed to supply goods to the defendant’s husband on credit if his wife would guarantee payment by him of their price, sent to the husband a form of guarantee, in order that he might obtain his wife’s signature to it, leaving the matter entirely to him. The husband obtained his wife’s signature to the guarantee, without sufficiently explaining to her the nature of the document, which she did not understand when she signed it.
Held: The instrument of suretyship for his obligations was set aside when the wife’s evidence was that she did not know that the document that she signed was a guarantee or of any importance. The case came squarely within the principle explained in Duval where the document the wife signed ‘was very different from what she supposed it to be’
References: [1908] 1 KB 233, 97 LT 860
Judges: Vaughan Williams LJ
Jurisdiction: England and Wales
This case is cited by:

  • Applied – Kings North Trust Ltd v Bell CA 1986
    The wife claimed to have signed a legal charge in favour of the plaintiffs by virtue of her husband’s fraudulent misrepresentation. The charge secured the business borrowings of the husband. She did not get independent advice.
    Held: The bank . .
    ([1986] 1 All ER 423, [1986] 1 WLR 119)
  • Applied – Avon Finance Co Ltd v Bridger CA 1985
    The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
    ([1985] 2 All ER 281, [1985] CLY 1289)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193355

Steadman v Steadman: HL 1976

A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. There is no general rule against the payment of a sum of money constituting an act of part performance for the purposes of s 40. It is necessary to look at the surrounding circumstances, including payments of money, to see if they pointed to some oral contract consistent with the alleged contract.
Lord Reid said: ‘This matter has a very long history. Section 40 replaced a part of section 4 of the Statute of Frauds 1677 (29 Car. 2 c. 3), and very soon after the passing of that Act authorities on this matter began to accumulate. It is now very difficult to find from them any clear guidance of any general application. But it is not difficult to see at least one principle behind them. If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn round and assert that the agreement is unenforceable. Using fraud in its other and less precise sense, that would be fraudulent on his part and it has become proverbial that courts of equity will not permit the statute to be made an instrument of fraud . . It must be remembered that this legislation did not and does not make oral contracts relating to land void; it only makes them unenforceable. And the statutory provision must be pleaded; otherwise the court does not apply it. So it is in keeping with equitable principles that in proper circumstances a person will not be allowed ‘fraudulently’ to take advantage of a defence of this kind. There is nothing about part performance in the Statute of Frauds. It is an invention of the Court of Chancery and in deciding any case not clearly covered by authority I think that the equitable nature of the remedy must be kept in mind.’
References: [1976] AC 536
Judges: Lord Reid
Statutes: Law of Property Act 1925 40, Statute of Frauds 1677 4
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Yaxley v Gotts and Another CA 24-Jun-1999
    Oral Agreement Creating Proprietory Estoppel
    The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
    (Gazette 14-Jul-99, Times 08-Jul-99, , [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, , [1999] EWCA Civ 3006, [2000] 1 All ER 711)
  • Cited – Inglorest Investments Ltd v Robert Campbell and Another CA 2-Apr-2004
    The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .
    ([2004] EWCA Civ 408, )
  • Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
    Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
    (, [2003] UKHL 17, Times 04-Apr-03, , [2003] 2 AC 541, [2003] 2 WLR 1060, [2003] 1 CLC 1003, [2003] 2 All ER (Comm) 331, [2003] 2 All ER 615, [2003] BLR 207, 88 Con LR 208)
  • Cited – Orton v Collins and others ChD 23-Apr-2007
    The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
    Held: The agreement was enforceable. The Civil . .
    (, [2007] EWHC 803 (Ch), [2007] 3 All ER 863, [2007] 1 WLR 2953)
  • Cited – In Re Alton Corporation 1985
    Sir Robert Megarry V-C, said in relation to a loan accompanied by the deposit of title deeds: ‘I have to remember that the basis of an equitable mortgage is the making of an agreement to create a mortgage, with the deposit of the land certificate . .
    ([1985] BCLC 27)
  • Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
    The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
    Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
    (Times 13-Feb-96, [1997] Ch 107, , [1996] EWCA Civ 1308, [1996] 3 WLR 372, [1996] 3 All ER 215)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193604

Jureidini v National British and Irish Millers Insurance Company Limited: HL 1915

An insurance company disputed liability of a claim arising out of a fire, alleging fraud and arson. These allegations were not sustained. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an arbitration clause in the policy. The arbitration clause applied only ‘if any difference arises as to the amount of any loss or damage’ and provided that ‘it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or umpire of the amount of the loss or damage if disputed shall be first obtained’.
Held: the insurance company was not entitled to rely on the arbitration clause. The arbitration clause applied only to differences concerning the amount of loss and, therefore, not to a claim that was repudiated by the insurer altogether. (Haldane obiter) ‘there has been in the proceedings throughout a repudiation on the part of the respondents of their liability based upon charges of fraud and arson, the effect of which, if they are right, is that all benefit under the policy is forfeited. But one of the benefits is the right to go to arbitration under this contract, and to establish your claim in a way which may, to some people, seem preferable to proceeding in the Courts; and accordingly that is one of the things which the appellants have, according to the respondents, forfeited with every other benefit under the contract. Now my Lords, speaking for myself, when there is a repudiation which goes to the substance of the whole contract I do not see how the person setting up that repudiation can be entitled to insist on a subordinate term of the contract still being enforced.’
References: [1915] AC 499
Judges: Viscount Haldane, LC, Lord Dunedin, Lord Atkinson, Lord Parmoor, Lord Parker of Waddington
Jurisdiction: England and Wales
This case is cited by:

  • Restricted – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
    PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
    (, [2004] UKPC 2, Times 28-Jan-04, , , , [2004] 2 All ER 358)
  • Dicta distinguished – Woodall v Pearl Assurance Co Ltd CA 1919
    . .
    ([1919] 1 KB 593)
  • Explained – Sanderson and Son v Amour and Co Ltd HL 1922
    ‘I should say a single word as to the case of Jureidini. That case has in my view no application, for the simple reason that the clause of reference there was not a reference of all disputes, but only a reference as to the evaluation of loss. In . .
    (1922 SC (HL) 117)
  • Explained – Heyman v Darwins Limited HL 1942
    An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
    ([1942] AC 356, [1942] 1 All ER 337)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193381

Heyman v Darwins Limited: HL 1942

An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of submission and the fact that no dispute had arisen on the only point submitted to arbitration.’
If one party to a contract repudiates it and that repudiation is accepted, then ‘By that acceptance he is discharged from further performance and may bring an action for damages, but the contract itself is not rescinded.’ The primary obligations under the contract may come to an end, but secondary obligations then arise, among them being the obligation to compensate the innocent party. The original rights may not then be enforced. But a consequential right arises in the innocent party to obtain a remedy from the party who repudiated the contract for his failure in performance.
Lord Porter said that in differentiating between disputes ‘arising under’ and ‘arising out of’ the agreement, the former should be given a narrower meaning.
As to the right to rescind, he said: ‘The three sets of circumstances giving rise to a discharge of contract are tabulated by Anson as: (1) renunciation by a party of his liabilities under it; (2) impossibility created by his own act; and (3) total or partial failure of performance. In the case of the first two, the renunciation may occur or impossibility be created either before or at the time for performance. In the case of the third, it can occur only at the time or during the course of performance.’
References: [1942] AC 356, [1942] 1 All ER 337
Judges: Viscount Simon LC, Lord Wright, Lord Macmillan, Lord Russell of Killowen, Lord Porter
Jurisdiction: England and Wales
This case cites:

  • Explained – Jureidini v National British and Irish Millers Insurance Company Limited HL 1915
    An insurance company disputed liability of a claim arising out of a fire, alleging fraud and arson. These allegations were not sustained. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an . .
    ([1915] AC 499)

This case is cited by:

  • Cited – Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd; The New York Star PC 1980
    A question arose, in the context of dispute between a consignee of goods and stevedores, whether the latter could rely on a time bar. It was argued that because of the fundamental nature of the breach, the stevedore had deprived itself of the . .
    ([1981] 1 WLR 138, [1980] 3 All ER 257)
  • Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
    PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
    (, [2004] UKPC 2, Times 28-Jan-04, , , , [2004] 2 All ER 358)
  • Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
    A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
    (Times 15-Aug-00, , Gazette 05-Oct-00, , [2000] UKHL 43, [2000] 4 All ER 97, [2000] 3 WLR 946, [2001] 1 AC 518)
  • Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
    The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
    (, , [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)
  • Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
    The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
    (, [2007] EWCA Civ 20, Times 29-Jan-07, [2007] Bus LR 686, [2007] 1 CLC 144, [2007] 2 Lloyd’s Rep 267, [2007] ArbLR 22, [2007] 1 All ER (Comm) 891)
  • Cited – Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd 1993
    The Court said that older (pre Heyman v Darwins Ltd) authorities about the width of arbitration clauses had to be approached with some care and that the words ‘arising from the contract’ have almost invariably been treated as ‘words of very wide . .
    ([1993] 1 Lloyds Rep 81)
  • Cited – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
    The owners of a ship sought to rescind charters saying that they had been procured by bribery.
    Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
    ([2007] ArbLR 24, , [2007] UKHL 40, [2008] 1 Lloyd’s Rep 254, [2007] 4 All ER 951, [2007] Bus LR 1719, [2007] 114 Con LR 69, [2007] 2 CLC 553, [2007] 2 All ER (Comm) 1053, [2007] CILL 2528)
  • 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 . .
    (, [2009] EWHC 2974 (Comm))

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193384

Lamare v Dixon: HL 1873

The respondent resisted an order for specific performance of a contract, saying that the plaintiffs had reneged on an essential promise in a collateral contract.
Held: The defence failed. Lord Chelmsford said: ‘The exercise of the jurisdiction of equity as to enforcing the specific performance of agreements, is not a matter of right in the party seeking relief, but of discretion in the Court – not an arbitrary or capricious discretion, but one to be governed as far as possible by fixed rules and principles.’ and ‘The conduct of the party applying for relief is always an important element for consideration’.
References: (1873) LR 6 HL 414
Judges: Lord Chelmsford
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Ram, Regina (on the Application Of) v Parole Board Admn 12-Jan-2004
    The claimant had won an action for damages against the respondent. He was however released on licence, and subsequently became unlawfully at large. The question was whether the damages continued to be payable to him. The defendant insisted that the . .
    (, [2004] EWHC 1 (Admin))

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191983

Larrinaga Steamship Co Ltd v The King: HL 1944

The vessel, discharging at St. Nazaire, was ordered by charterers to return to Cardiff. Despite severely deteriorating weather conditions a Sea Transport Officer instructed the vessel to sail on completion of discharge to Quiberon Bay to join a convoy bound for the Bristol Channel. The master protested but complied. The vessel grounded and suffered damage. The owners claimed against the Crown as charterers, contending that the damage had resulted from the charterers’ order to return to Cardiff.
Held: A ship owner’s underwriters would be entitled to be subrogated to his claim for indemnity against a charterer in respect of losses caused by the master’s compliance with the charterer’s orders as to the employment of the ship, under a standard term of a charterparty.
Lord Wright said: ‘The view of the judge was that what he described as the ‘sailing orders to Quiberon Bay to be obeyed forthwith . .’ were orders as to employment within cl. 9. With the greatest respect, I cannot agree with that view. These sailing orders which the judge found were given were, in my opinion, merely dealing with matters of navigation, in regard to carrying out the orders to proceed to Cardiff’.
Lord Porter said: ‘Three answers to this argument have been made by the respondent. (1) That though an order specifying the voyage to be performed is an order as to employment, yet an order as to the time of sailing is not. That order, it is contended, is one as to navigation, or, at any rate, not as to employment. My Lords, this distinction seems to me to be justified: an order to sail from port A to port B is in common parlance an order as to employment, but an order that a ship shall sail at a particular time is not an order as to employment because its object is not to direct how the ship shall be employed, but how she shall act in the course of that employment. If the word were held to include every order which affected not the employment itself but any incident arising in the course of it almost every other liability undertaken by the charterer would be otiose, since the owners would be indemnified against almost all losses which the ship would incur in prosecuting her voyages.’
and ‘(2) The second answer of the respondents was that even if it were conceded that orders to sail in a storm were orders in respect of which an indemnity is due, they must still be orders of the charterers as charterers and such as under this charterparty they are entitled to give. The mere instruction to sail may be such an order, but such an instruction leaves it to the discretion of the master who is responsible for the safety of his ship to choose the time and opportunity for starting on his voyage. I know of no right on the part of a charterer to insist that the safety of the ship should be endangered by sailing at a time when seamanship requires her to stay in port.’
Lord Findlay, LC suggested that, although the parties in Krell v Henry may have contracted in the expectation that the procession would take place, it was difficult to see why the happening of the procession was the basis of the contract.
References: [1944] KB 124, [1945] AC 246
Judges: Lord Findlay LC, Mackinnon LJ and Lords Wright and Porter
Jurisdiction: England and Wales
This case cites:

  • Criticised – Krell v Henry CA 1903
    A contract to rent rooms for two days and from which the coronation processions of King Edward VII were to be viewed was frustrated when the processions were cancelled on the days the rooms were taken for because the contract was ‘a licence to use . .
    ([1903] 2 KB 740, [1900-3] All ER 20)

This case is cited by:

  • Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
    Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
    (, Times 13-Feb-02, , [2002] UKHL 4, [2002] 1 LLR 553, [2002] Lloyds Rep IR 261, [2002] 1 All ER (Comm) 321, 2002 SLT 278, [2002] CLC 741, 2002 SC (HL) 117, [2002] BLR 139, 2002 SCLR 346, 2002 GWD 6-178)
  • Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
    The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
    (, [2012] UKSC 17, [2012] 2 WLR 976, , UKSC 2010/0157, , )

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191167

Eastham v Leigh London and Provincial Properties Ltd: 1971

A contract is not conditional merely because it contains obligations which may be termed promissory conditions.
References: (1971) 46 TC 687
This case is cited by:

  • Cited – Jerome v Kelly (Her Majesty’s Inspector of Taxes) HL 13-May-2004
    In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
    (, [2004] UKHL 25, , Times 20-May-04, [2004] 21 EGCS 151, [2004] STI 1201, [2004] 2 All ER 835, [2004] 1 WLR 1409, [2004] NPC 75, [2004] WTLR 681, [2004] STC 887, 76 TC 147, [2004] BTC 176)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.196885

Britan v Rossiter: 1879

A contract which fails to meet the standards required under the Act is not not void, but is merely unenforceable.
References: (1879) 11 QBD 123
Statutes: Statute of Frauds 1677 3
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Yaxley v Gotts and Another CA 24-Jun-1999
    Oral Agreement Creating Proprietory Estoppel
    The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
    (Gazette 14-Jul-99, Times 08-Jul-99, , [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, , [1999] EWCA Civ 3006, [2000] 1 All ER 711)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193606

Karis and Another v Lewis: CA 21 Dec 2005

References: [2005] EWCA Civ 1627, [2005] EWCA Civ 1637
Links: Bailii, Bailii
Jurisdiction: England and Wales
This case cites:

These lists may be incomplete.
Last Update: 25 October 2020; Ref: scu.237501

Nair v Lagardere Sports and Entertainment UK Ltd: QBD 6 Oct 2020

contract law – employment law – implied terms – trust and confidence – scope of term – financial wellbeing – corporate structure – bonus payments
Applicability of the ‘implied term as to trust and confidence’ (‘ITTC’) in contracts of employment, and in particular where the alleged context is a breach of that term by way of the conduct of an employer which (depending on how one looks at the facts) consisted of a failure to secure payment of bonuses due from other companies in the broad group of companies in which C was employed and over which it is argued D had sufficient de facto control, or where the conduct is a positive ‘stringing along’ and avoiding honouring the bonus payment, leading to a breakdown in trust and confidence. Among other things the question is whether the claim must fail on the basis that appellate courts have in the past rejected the notion of an implied duty on an employer to take steps to protect the financial welfare of employees. In this instance the sum involved is enormous, being a bonus of at least $25 million USD.
References: [2020] EWHC 2608 (QB)
Links: Bailii
Judges: McCloud M
Jurisdiction: England and Wales

Last Update: 24 October 2020; Ref: scu.655147

International Fibre Syndicate Ltd v Dawson: SCS 20 Feb 1900

A, the owner of a patent for a fibre decorticating machine, entered into an agreement with B, the owner of an estate in Borneo, whereby it was stipulated that A should supply and erect one of the machines on B’s estate, and if it proved satisfactory that B should pay for it a sum to cover cost, freight, and cost of erection, that terms should be arranged for the use of decorticators on the estate, and that the area under fibre cultivation should be increased by 25 acres per three months up to 1000 acres. A decorticating machine was supplied and erected by A. within a year after the date of this contract he assigned the patent to a limited liability company together with ‘licences concessions, and the like,’ receiving certain shares in the company, inter alia, for this patent and for ‘contracts and concessions.’ Thereafter the company with consent of A brought an action against B, in which they sued as assignees of the contract between A and B, but ultimately restricted their claim to the sum due for the machine which was in fact supplied and erected by A. In defence to this action B pleaded ‘no title to sue.’ Held that, even if the contract was included under the assignation by A to the company (which was doubtful), it was not assignable, and that the plea of ‘no title to sue’ must be sustained.
Grierson, Oldham, and Company, Limited v. Forbes Maxwell and Company Limited, June 27, 1895, 22 R. 812, followed.
Opinion ( per Lord Kincairney (Ordinary) that, A having consented to the action brought by the company upon the contract, the fact of his consent might be taken into account in determining whether the contract had in fact been assigned by him to them, and that if the decision in this case had depended upon that question only, the plea of ‘No title to sue’ could not have been sustained without inquiry.
References: [1900] SLR 37 – 451
Links: Bailii
Judges: Lord Kincairney, Ordinary
Jurisdiction: Scotland

Last Update: 23 September 2020; Ref: scu.611714

Car and Universal Finance Company Ltd v Caldwell: CA 19 Dec 1963

The defendant had sold a car, taking as payment a cheque which was dishonoured; the plaintiffs later bought the car in good faith.
Held: The defendant was entitled to return of the car, even though the original purchaser had disappeared, and could not be notified. In these circumstances, communication to the police was sufficient. If it was impossible to communicate with the representor then then the representee rescinds by taking all necessary and reasonable steps to make it known that the contract is cancelled.
Sellers LJ said: ‘In such exceptional circumstances, it does not seem to me appropriate to hold that a party so acting can claim any right to have a decision to rescind communicated to him before the contract is terminated. (The other party) has to establish clearly and unequivocally that he terminates the contract and is no longer to be bound by it. If he cannot communicate his decision he may still satisfy a judge or jury that he had made a final and irrevocable decision and ended the contract.’ and ‘If one party by absconding deliberately puts it out of the power of the other to communicate his intention to rescind which he knows the other will almost certainly want to do, I do not think he can any longer insist on his right to be made aware of the election to determine the contract. In these circumstances communication is a useless formality. I think that the law must allow the innocent party to exercise his right of rescission otherwise than by communication or repossession. To hold otherwise would be to allow a fraudulent contracting party by his very fraud to prevent the innocent party from exercising his undoubted right. I would hold that in circumstances such as these the innocent party may evince his intention to disaffirm the contract by overt means falling short of communication or repossession.’
References: [1963] EWCA Civ 4, [1964] 1 All ER 290, [1965] 1 QB 525, [1964] 2 WLR 600
Links: Bailii
Judges: Sellers, Upjohn, Davies LJJ
Jurisdiction: England and Wales
This case cites:

  • Cited – Reese River Silver Mining Co Ltd v Smith HL 1869 ((1869) LR 4 HL 64)
    Rescission for misrepresentation is always the act of the party (representee) himself.
    The fact that a person’s name continues to remain on a company’s register as member does not mean that it should have done so under the provisions of the . .
  • Cited – Scarf v Jardine HL 13-Jun-1882 ([1882] 7 AC 345, [1882] UKLawRpAC 17, )
    If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an . .
  • Cited – Longman v Hill 1891 ((1891) 7 Times Law Reports 639)
    The question whether an election to rescind a contract has been validly exercised is always one of fact. . .
  • Cited – Financings Ltd v Stimson CA 17-Jul-1962 (, [1962] EWCA Civ 1, [1962] 3 All ER 386, [1962] 1 WLR 1184)
    A purchaser signed a hire purchase agreement for a motor vehicle in early March 1961. A clause in the agreement provided that when the form was signed by the purchaser it would become binding ‘upon acceptance by signature’ of an officer of the . .
  • Cited – Campbell Discount Ltd v Gall 1961 ([1961] 2 All ER 104, [1961] 1 QBD 431)
    . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.262807

A Roberts and Co Ltd v Leicestershire County Council: ChD 1961

The court considered the circumstances required for rectification of a contract after a unilateral mistake. Pennycuick J said: ‘a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the contract, and that the other party concluded the contract with the omission or a variation of that term in the knowledge that the first party believed the term to be included. . . The principle is stated in Snell on Equity, 25th edition (1960), p 569 as follows: ‘By what appears to be a species of equitable estoppel, if one party to a transaction knows that the instrument contains a mistake in his favour but does nothing to correct it, he (and those claiming under him) will be precluded from resisting rectification on the ground that the mistake is unilateral and not common.”
References: [1961] Ch 555, [1961] 2 All ER 545
Judges: Pennycuick J
Jurisdiction: England and Wales
This case is cited by:

  • Approved – Riverlate Properties Ltd v Paul CA 1974 ([1975] Ch 133, [1974] 2 All ER 656)
    A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy.
    Held: The tenant had no such knowledge as would have brought the doctrine into play. In . .
  • Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005 (, [2005] EWCA Civ 77, Times 16-Feb-05, [2005] BLR 135)
    A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
    Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
  • Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980 ([1981] 1 WLR 505, , [1980] EWCA Civ 3, [1981] 1 All ER 1077)
    An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
  • Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019 (, [2019] EWCA Civ 1361)
    Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
    Held: The appeal failed. The judge was right to conclude that an . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.222559

Scarfe v Adams: CA 1981

Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was part of the land comprised in the specified title). The coiurt had to identify what land was transferred.
Held: The court criticised the use by solicitors of small scale plans on conveyances and set out the principles for deciding what criteria were to be applied in incorporating plans into conveyances or transfers. Extrinsic evidence was admissible because the Ordnance Survey map used in the conveyance to identify the relevant property had been wholly inadequate due to its small scale. However, if the terms of the transfer clearly define the land, extrinsic evidence is not admissible to contradict the transfer.
Cumming-Bruce LJ said: ‘the question raised in these proceedings is only the proper construction to the Plaintiff’s Transfer Deed. And the starting point is that extrinsic evidence is not admissible as an aid to its construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous. Counsel for the Plaintiff submits that this deed is uncertain, contradictory and ambiguous. Counsel in the court below invited the judge to admit evidence as to facts and circumstances from which the common intention of the vendor and purchaser was to be collected in order to understand the true meaning of the deed which they made, and the true effect of the plan to which they referred as showing the land transferred. The judge admitted extrinsic evidence de bene esse but decided that there was no such uncertainty or ambiguity as to make it right to admit that evidence as an aid to construction. . . The learned deputy judge said that he had derived most assistance from the cases of Grigsby v Melville [1973] 3 All ER 455 and Neilson v Poole [1969] 20 P and CR 909. The judge was wrong in thinking that Grigsby was an action for rectification. The decision was founded on the determination that, as a matter of construction, the deed was clear, certain and unambiguous, so there was no room for extrinsic evidence about the inconvenient consequences. Neilsen v Poole was a case in which Megarry J as a matter of construction of the conveyance with plan attached, decided that it was uncertain and that therefore it was right to admit and consider extrinsic evidence. Having done so, Megarry J decided that the conveyance as a whole and the dividing line on the plan showed that the dividing line was along a line drawn on the plan, and the other conveyances supported the conclusion. I have difficulty in understanding how the decision of either case or the reasoning of Megarry J supported the deputy judge’s conclusion.

. . . ‘The facts of the present case are really very simple, but I hope that this judgment will be understood by every conveyancing solicitor in the land as giving them warning, loud and clear, that a conveyancing technique which may been effective in the old days to convey large property from one vendor to one purchaser will lead to nothing but trouble, disputes and expensive litigation if applied to the sale to separate purchasers of a single house and its curtilage divided into separate parts. For such purposes it is absolutely essential that each parcel conveyed shall be described in the conveyance or transfer deed with such particularity and precision that there is no room for doubt about the boundaries of each, and for such purposes if a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless. The plan or other drawing bound up with the deed must be on such a large scale that it clearly shown with precision where each boundary runs. In my view the parties to this appeal are the victims of sloppy conveyancing for which the professional advisers of vendor and purchasers appear to bear the responsibility. We are not concerned in this appeal with determining or apportioning that responsibility. This court has to try to reduce to order the confusion created by the conveyancers.’
Griffiths LJ said: ‘Although we have had the benefit of a fairly extensive citation of authority, I do not find it necessary to review these authorities, as I regard the legal principle to be applied in this appeal as well established and the cases cited as illustrations of the practical application of that principle. The principle may be stated thus: if the terms of the transfer clearly define the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer. But, if the terms of the transfer do not clearly define the land or interests to transfer it, then extrinsic evidence is admissible so the court may (to use the words of Lord Parker in Eastwood v Ashton [l915] AC 900 at 913) ‘do the best it can to arrive at the true meaning of the parties upon a fair consideration of the language used.’
References: [1981] 1 All ER 843
Judges: Cumming-Bruce LJ, Griffith LJ
Jurisdiction: England and Wales
This case cites:

  • Cited – Eastwood v Ashton HL 1915 ([1915] AC 900)
    A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . .
  • Cited – Neilson v Poole ChD 1969 ([1969] 20 P and CR 909)
    The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
  • Cited – Grigsby v Melville CA 6-Jul-1973 ([1973] 3 All ER 455)
    The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the . .
  • Cited – Kingston v Phillips CA 1976 (Unreported, 1976 Transcript 279)
    The court was asked to construe a parcels clause in a transfer: ‘It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade . .

This case is cited by:

  • Cited – Partridge and others v Lawrence and others CA 8-Jul-2003 (, [2003] EWCA Civ 1121, [2004] 1 P and CR 176)
    The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
    Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
  • Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005 (, [2005] EWCA Civ 1006)
    The neighbour parties disputed the existence of a right of way over one plot. . .
  • Cited – Clarke and Clarke v O’Keefe and O’Keefe CA 21-Oct-1997 (, [1997] EWCA Civ 2539, (1997) 80 PandCR 126)
    The plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went . .
  • Cited – Joyce v Rigolli CA 2-Feb-2004 (, [2004] EWCA Civ 79)
    An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
    Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not . .
  • Cited – Hillman and Hillman v Rogers and Rogers CA 19-Dec-1997 (, [1997] EWCA Civ 3069)
    The parties disputed rights of way. The court considered the use of extrinsic evidence to construe the conveyance at issue. Robert Walker LJ: ‘It is to my mind clearly a case in which the court needs all the help it can get, and is entitled to make . .
  • Cited – Hillman and Hillman v Rogers and Rogers CA 30-Apr-1998 (Gazette 07-May-98, , [1998] EWCA Civ 746)
    A court order can properly be recalled to correct an error before it had been perfected. This appeal was rejected also as attempt to re-litigate the interpretation of a section in the appeal judgement. . .
  • Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 1-Jul-1998 (, [1998] EWCA Civ 1121)
    Boundary Dispute . .
  • Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 10-Jun-1999 (, [1999] EWCA Civ 1552)
    Boundary dispute . .
  • Cited – Druce v Druce CA 11-Feb-2003 (, [2003] EWCA Civ 535)
    The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
    Held: In the circumstances the plan would . .
  • Cited – Gillon v Baxter and Another CA 10-Oct-2003 (, [2003] EWCA Civ 1591)
    Boundary dispute . .
  • Cited – Horn and Another v Phillips and Another CA 18-Dec-2003 ([2003] EWCA Civ 1877, )
    In a boundary dispute, extrinsic evidence was not admissible to contradict, in this, case the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. . .
  • Cited – Woolls v Powling CA 9-Mar-1999 (Times 09-Mar-99, , [1999] EWCA Civ 751)
    A plan attached to a conveyance for identification purposes only’ could still be used, when clear, to determine just where the boundary lay. If the transfer is clear, extrinsic evidence cannot be used to clarify the precise boundary.
    The . .
  • Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002 (Times 27-Aug-02, , Gazette 03-Oct-02, [2002] EWCA Civ 1078, [2003] P and CR 16, [2002] 44 EG 175, [2003] 4 All ER 83, [2003] 1 WLR 360)
    Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
    Held: . .
  • Cited – Pennock and Another v Hodgson CA 27-Jul-2010 (, [2010] EWCA Civ 873)
    In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
    Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
  • Cited – Dixon and Another v Hodgson and Others CA 20-Dec-2011 (, [2011] EWCA Civ 1612)
    The parties were in a boundary dispute. The court warned of the danger of deciding where a boundary is by simply relying on the physical appearance of the ground features to the neglect or exclusion of the title documents. The Recorder had found . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.182549

Scarf v Jardine: HL 13 Jun 1882

If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an estoppel it must be shown that the person seeking to assert an estoppel has acted on the faith of the representation: ‘I put rather an emphasis on those last words ‘against those who acted upon the faith that the authority continued.”
An election to avoid a contract is not completed until the decision has been communicated to the other side ‘in such a way as to lead the opposite party to believe that he has made that choice’.
‘Novation’ is a term derived from the civil law and therefore from Roman law. A novation operates where: ‘there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract.’
Lord Blackburn said: ‘The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act – I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way -the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.’
References: [1882] 7 AC 345, [1882] UKLawRpAC 17
Links: Commonlii
Judges: Lord Blackburn, Lord Selborne LC
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal and Another PC 23-Mar-2005 (, [2005] UKPC 16, )
    (Jamaica) The company having been taken over summarily dismissed three employees who complained to their union, and the remaining workforce were called out on strike. There was a disagreement as to whether there was a genuine redundancy situation. . .
  • Cited – Peyman v Lanjani CA 1985 ([1985] 1 Ch 457, [1985] CL 457)
    Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . .
  • Cited – Car and Universal Finance Company Ltd v Caldwell CA 19-Dec-1963 (, [1963] EWCA Civ 4, [1964] 1 All ER 290, [1965] 1 QB 525, [1964] 2 WLR 600)
    The defendant had sold a car, taking as payment a cheque which was dishonoured; the plaintiffs later bought the car in good faith.
    Held: The defendant was entitled to return of the car, even though the original purchaser had disappeared, and . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223952

Wallington v Townsend: 1939

Where a vendor of land failed to complete for reasons other than a defect in title and the purchaser was unable to prove a loss of profits he was entitled by way of damages, in addition to the return of the deposit, to interest in respect of the loss of use of the deposit and to the costs of approving and executing the contract, investigating title, preparing the conveyance and of searches.
Morton J said: ‘The case is a good illustration of the fact that actions in which the subject-matter is comparatively trifling often give rise to the most difficult questions of fact and of law’.
References: [1939] Ch 588, [1939] 2 All ER 255
Judges: Morton J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
    The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
  • Cited – Hopgood v Brown CA ([1955] 1 WLR 213, [1955] 1 All ER 550, (1055) 99 Sol Jo 168, Bailii, [1955] EWCA Civ 7)
    Two adjoining plots were conveyed to the same purchaser. Buildings were constructed, and the adjusted boundary required an obtuse angle. The plots were sold on separately but with the original straight boundaries. The plans on the conveyances had no . .

These lists may be incomplete.
Last Update: 26 August 2020; Ref: scu.421539

Kelly v Solari: CexC 18 Nov 1841

Recovery was sought of money (andpound;200) paid an error of fact. There had been a life policy, but it had lapsed before the death of the life assured. The policy had been marked ‘lapsed’ but the marking had been overlooked.
Held: Where money is paid to another under the influence of a mistake in circumstances where if the true facts had been known the money would not have been paid, an action lies to recover the money and it is against the conscience of the recipient to retain it. Parke B said of Bilbie v Lumley that ‘All that that case decides is, that money paid with full knowledge of all the facts cannot be recovered back by reason of its having been paid in ignorance of the law’
A payment made in the knowledge that there was a ground to contest liability will be irrecoverable (Lord Abinger CB).
Lord Abinger CB accepted that Baron CB had put the matter too broadly at trial by using the expression ‘means of knowledge’. This was a very vague expression, and: ‘The safest rule however is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he cannot recover it back again. There may also be cases in which, although he might by investigation learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding; in that case there can be no doubt that he is equally bound. Then there is a third case, and the most difficult one, – where the party had once a full knowledge of the facts, but has since forgotten them. I certainly laid down the rule too widely to the jury, when I told them that if the directors once knew the facts they must be taken still to know them, and could not recover by saying that they had since forgotten them. I think the knowledge of the facts which disentitles the party from recovering, must mean a knowledge existing in the mind at the time of payment.’
Parke B agreed and said: ‘If, indeed, the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the latter is certainly entitled to retain it; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it.’
Rolfe B mentioned two interpretations of the facts available to the jury: ‘first, that the jury may possibly find that the directors had not in truth forgotten the fact; and secondly, they may also come to the conclusion, that they had determined that they would not expose the office to unpopularity, and would therefore pay the money at all events.’
References: (1841) 9 M and W 54, [1841] EngR 1087, (1841) 152 ER 24
Links: Commonlii
Judges: Parke B, Lord Abinger CB, Gurney B, Rolfe B
Jurisdiction: England and Wales
This case cites:

  • Cited – Bilbie v Lumley and Others ((1802) 2 East 469, Commonlii, [1802] EngR 245, (1802) 102 ER 448)
    An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
    Held: A contract . .

This case is cited by:

  • Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL (Gazette 18-Nov-98, Gazette 10-Feb-99, Times 30-Oct-98, House of Lords, Bailii, [1998] UKHL 38, [1999] 2 AC 349, [1998] 4 All ER 513, [1998] 3 WLR 1095, [1998] Lloyds Rep Bank 387)
    Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
  • Cited – Fisher v Brooker and Another ChD (Bailii, [2006] EWHC 3239 (Ch), [2007] FSR 12, [2007] EMLR 9)
    The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.

These lists may be incomplete.Leading Case
Last Update: 21 August 2020; Ref: scu.236536

Dunlop v Higgins: HL 1848

References: (1848) 6 Bell’s App 195, (1848) 1 HLC 381
Ratio: Contracts made by post are complete when and where the letter of acceptance is posted.
Jurisdiction: Scotland
This case is cited by:

(This list may be incomplete)

Last Update: 01 June 2020
Ref: 276450

Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others: Comm 7 Nov 2003

References: [2003] EWHC 2602 (Comm), [2004] 1 All ER (Comm) 481, [2004] 1 Lloyd’s Rep 38
Links: Bailii
Coram: The Honourable Mr Justice Colman
Ratio: One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s right of action against the promisor and because, by reason of the underlying policy of section 1(4), he is confined to the means of enforcement provided by the contract to the promisee, namely arbitration. He is to be treated as standing in the shoes of that promisee for the purpose only of the enforcement of the substantive term. In this case, the scope of the disputes covered by the arbitration agreements was wide enough to embrace a dispute between owners and charterers about payment of the brokers’ commission, and they fell to be resolved by arbitration.
Statutes: Contracts (Rights of Third Parties) Act 1999 1(4), Arbitration Act 1996 67
Jurisdiction: England and Wales
This case cites:

  • Cited – Robertson v Wait ((1853) 8 Ex 299)
    . .
  • Cited – Les Affreteurs Reunis SA v Leopold Walford (London) Ltd HL ([1919] AC 801)
    With regard to Robertson -v- Wait: ‘My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is . .
  • Cited – The Jordan Nicholev ([1990] 2 Lloyds Rep 11)
    The court was asked as to the position resulting from the assignment of a contract including an arbitration clause: ‘Where the assignment is the assignment of the cause of action, it will, in the absence of some agreement to the contrary include as . .
  • Cited – The Padre Island ([1984] 2 Lloyds Rep 408)
    The 1930 Act creates a statutory assignment of any rights of action in a case where the assured has become bankrupt or been wound up, the party to whom the benefit of a right of action under the liability insurance contract has been transferred may . .
  • Cited – T W Thomas and Co Ltd v Portsea Steamship Co Ltd PC ([1912] AC 1)
    The board discussed the approach to the incorporation of arbitration clauses and jurisdiction clauses from one contract into another such as a bill of lading. . .
  • Cited – The Mahkutai PC (Times 24-Apr-96, [1996] AC 650, [1996] 3 WLR 1)
    (Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
  • Cited – Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (‘The Jay Bola’) CA ([1997] 2 Lloyds Rep 279)
    The insurance company claimant had insured a cargo under a voyage charter made by the defendant as charterer with the claimant as time charterer and disponent owner of the vessel. The charter had an arbitration clause. The cargo was damaged in a . .

(This list may be incomplete)

Last Update: 26 March 2020
Ref: 187699

Kelly v Solari: CexC 1841

References: (1841) 9 M and W 54
Coram: Parke B, Lord Abinger CB, Gurney B, Rolfe B
Ratio: Recovery was sought of money (andpound;200) paid an error of fact. There had been a life policy, but it had lapsed before the death of the life assured. The policy had been marked ‘lapsed’ but the marking had been overlooked.
Held: Where money is paid to another under the influence of a mistake in circumstances where if the true facts had been known the money would not have been paid, an action lies to recover the money and it is against the conscience of the recipient to retain it. Parke B said of Bilbie v Lumley that ‘All that that case decides is, that money paid with full knowledge of all the facts cannot be recovered back by reason of its having been paid in ignorance of the law’
A payment made in the knowledge that there was a ground to contest liability will be irrecoverable (Lord Abinger CB).
Lord Abinger CB accepted that Baron CB had put the matter too broadly at trial by using the expression ‘means of knowledge’. This was a very vague expression, and: ‘The safest rule however is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he cannot recover it back again. There may also be cases in which, although he might by investigation learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding; in that case there can be no doubt that he is equally bound. Then there is a third case, and the most difficult one, – where the party had once a full knowledge of the facts, but has since forgotten them. I certainly laid down the rule too widely to the jury, when I told them that if the directors once knew the facts they must be taken still to know them, and could not recover by saying that they had since forgotten them. I think the knowledge of the facts which disentitles the party from recovering, must mean a knowledge existing in the mind at the time of payment.’
Parke B agreed and said: ‘If, indeed, the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the latter is certainly entitled to retain it; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it.’
Rolfe B mentioned two interpretations of the facts available to the jury: ‘first, that the jury may possibly find that the directors had not in truth forgotten the fact; and secondly, they may also come to the conclusion, that they had determined that they would not expose the office to unpopularity, and would therefore pay the money at all events.’
Jurisdiction: England and Wales
This case cites:

  • Cited – Bilbie v Lumley and Others ((1802) 2 East 469, Commonlii, [1802] EngR 245, (1802) 102 ER 448)
    An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
    Held: A contract . .

(This list may be incomplete)
This case is cited by:

  • Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL (Gazette 18-Nov-98, Gazette 10-Feb-99, Times 30-Oct-98, House of Lords, Bailii, [1998] UKHL 38, [1999] 2 AC 349, [1998] 4 All ER 513, [1998] 3 WLR 1095, [1998] Lloyds Rep Bank 387)
    Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap agreements were . .
  • Cited – Fisher v Brooker and Another ChD (Bailii, [2006] EWHC 3239 (Ch))
    The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.

(This list may be incomplete)
Leading Case
Last Update: 18 March 2019
Ref: 236536

British Movietone News Limited v London and District Cinemas Limited: HL 1952

References: [1952] AC 166
Coram: Viscount Simon
Ratio: Viscount Simon said: ‘It is of the utmost importance that the action of a court, when it decides that in view of a supervening situation the rights and obligations under a contract have automatically ceased, should not be misunderstood. The suggestion that an ‘uncontemplated turn of events’ is enough to enable a court to substitute its notion of what is ‘just and reasonable’ for the contract as it stands, even though there is no ‘frustrating event,’ appears to be likely to lead to some misunderstanding. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate – a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made. If, on the other hand, a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different situation which has now unexpectedly emerged, the contract ceases to bind at that point – not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply in that situation.’
Jurisdiction: England and Wales
This case cites:

  • Adopted – Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd HL ([1908] AC 16)
    Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract . .

(This list may be incomplete)
This case is cited by:

  • Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC (Bailii, [2010] EWHC 323 (TCC))
    The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .

(This list may be incomplete)

Last Update: 17 March 2019
Ref: 402547

The Demetra K: CA 2002

References: [2002] 2 Lloyd’s Rep 581
Coram: Lord Phillips of Worth Matravers MR
Ratio: The court set out the elements to be satisfied before ordering a rectification of a commercial contract, in particular, the need for an antecedent agreement with outward expression of a common intent, and convincing evidence sufficient to discharge the burden of proving a common mistake in translating the previous agreement into contractual form.
Held: Those negotiating the contract each assumed that their agreement on a certain matter would have a certain effect, but they had never discussed and agreed upon that effect. There was not enough for rectification: ‘Mr Lee and Mr Mitchell plainly agreed that the Oct. 3 addendum should be deleted from the slip policy. We do not believe that either of them gave precise consideration to the effect of this deletion. It may be that Mr. Mitchell assumed that it would relieve the insurers from all risk arising from vandalism, sabotage and malicious mischief. It may be that Mr. Lee had a similar belief. If they both shared that belief this would not establish a claim for rectification of the policy.’ and ‘Where a policy provides cover against one of two or more concurrent causes of a casualty, a claim will lie under the policy provided that there is no relevant exclusion. Where, however, a policy contains an express exclusion of cover in respect of loss resulting from a specified cause, underwriters will be under no liability in respect of a loss resulting from that cause, notwithstanding the fact that there may have been a concurrent cause of the loss which falls within the cover.’
Jurisdiction: England and Wales
This case cites:

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 200213

Codelfa Construction v State Rail Authority of New South Wales: 1982

References: (1982) 149 CLR 337
Coram: Mason J
Ratio: Mason J referred to the need for a term to be implied into a contract where ‘a term which should have been included had been omitted.’
Jurisdiction: Australia
This case is cited by:

(This list may be incomplete)

Last Update: 14 March 2019
Ref: 248232

Smith v South Wales Switchgear: HL 1978

References: [1978] 1 WLR 165
Coram: Lord Fraser, Viscount Dilhorne, Lord Keith of Kinkel
Ratio: The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’. Lord Keith of Kinkel: The tests were guidelines, but ‘guidelines’ but ‘the matter is essentially one of the ascertaining the intention of the contracting parties from the language they have used, considered in the light of surrounding circumstances which must be taken to have been within their knowledge.’
Jurisdiction: England and Wales
This case cites:

  • Approved – Canada Steamship Lines Ltd v The King PC ([1952] AC 192, Bailii, [1952] UKPC 1, [1952] 1 TLR 261, [1952] 1 All ER 305, [1952] 1 Lloyd’s Rep 1)
    A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
  • Cited – Gillespie Bros and Co Ltd v Roy Bowles Transport Ltd CA ([1973] QB 400, [1973] 1 Lloyds Rep 10)
    The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . . .
  • Dicta approved – Hollier v Rambler Motors (AMC) Ltd CA ([1972] 2 QB 71, Bailii, [1971] EWCA Civ 12, [1972] 1 All ER 399, [1972] 2 WLR 401, [1972] 2 QB 71, [1972] RTR 190)
    The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .

(This list may be incomplete)
This case is cited by:

  • Cited – National Westminster Bank v Utrecht-America Finance Company CA (Bailii, [2001] EWCA Civ 658, [2001] 3 All ER 733)
    An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
  • Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC (Bailii, [2000] EWHC Technology 66)
    The defendant company sought to rely upon an exemption clause.
    Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
  • Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL (House of Lords, Bailii, [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)
    The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
  • Cited – Gray v Fire Alarm Fabrication Services Ltd and others QBD (Bailii, [2006] EWHC 849 (QB))
    The deceased, a maintenance engineer died after falling through a skylight at work. The court considered the respective liabilities of his employer and the landowner. . .
  • Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA (Bailii, [1999] EWCA Civ 1293, [1999] 1 All ER (Comm) 970)
    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 – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA ([1988] 2 Lloyds Reports 427)
    The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .

(This list may be incomplete)

Last Update: 22 April 2017
Ref: 185979

Parsons Corporation and others v CV Scheepvaartonderneming Happy Ranger”: ComC 9 Feb 2006″

References: [2006] EWHC 122 (Comm)
Links: Bailii
Coram: Mrs Justice Gloster DBE
Ratio: A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required.
This case cites:

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 14-Apr-17
Ref: 238654

Perrymans case: 1599

References: (1599) 5 Co Rep 846
Ratio: As between grantor and grantee, a deed delivered in escrow is to be regarded as a valid transaction which was effective to pass the title to the grantee as at the date of the escrow.
This case cites:

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 30-Nov-16
Ref: 252346

Hollierv Rambler Motors (AMC) Ltd: 1972

References: [1972] 2 QB 71
Coram: Salmon LJ
Ratio: When construing a clause: ‘in the end you are driven back to construing the clause in question to see what it means’
This case cites:

  • Restricted – Canada Steamship Lines Ltd v The King PC ([1952] AC 192)
    A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .

(This list may be incomplete)
This case is cited by:

  • Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC (Bailii, [2000] EWHC Technology 66)
    The defendant company sought to rely upon an exemption clause.
    Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
  • Dicta approved – Smith v South Wales Switchgear HL ([1978] 1 WLR 165)
    The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’. Lord Keith of Kinkel: The tests were guidelines, but . .
  • Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL (House of Lords, Bailii, [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)
    The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 17-Nov-16
Ref: 195686

Rushforth And Others, Assignees of Rushforth, v Hadfield And Others; 8 Feb 1806

References: [1806] EngR 70, (1806) 7 East 224, (1806) 103 ER 86
Links: Commonlii
Ratio: A general lien is regarded in law as an exception, rather than the rule, because it advantages one creditor, otherwise unsecured, over the general body of unsecured creditors.
Where no lien exists at common law, it can arise by contract with the particular party, either express or implied: it may be implied either from previos dealings between the same parties upon the footing of such a lien, or even from a usage of the trade so general as that the jury must reasonably presume that the parties knew of and adopted it in their dealing. But where as in the case of a common carrier claiming a lien for his general balance, such a lien is against the policy of the common law and the custom of the realm, which only gives him a lien for the carriage price of the particular goods, there ought to be very trong evidence of a general usage for suh a lien to induce a jury to infer the knowlede and adoption of it by the particular parties in their contract ; and the jury having negatived such a general usage, though proved to have been frequently exercised by the defenants and various other common carriers throghout the north for 10 or years before, and in one instance so far back as 30 years, though not opposed by other evidence, the Court refused to grant a new trial.
This case cites:

(This list may be incomplete)

Last Update: 28-Sep-16
Ref: 340858

Rushforth And Another, Assignees of B And W Rushforth v Hadfield And Others; 20 Jun 1805

References: [1805] EngR 204, (1805) 6 East 519, (1805) 102 ER 1386
Links: Commonlii
Ratio: The lien of a common carrier for his general balance, however it may arise in point of law from an implied agreement to be inferred from a general usage of trade, proved by clear and satisfactory instances sufficiently numerous and general to warrant so extensive a conclusion affecting the custom of the realm, yet is not to be favoured, nor can be supported by a few recent instances of detention of goods by four or five carriers for their general balance. But such a lien may be inferred from evidence of the particular mode of dealing between the respective parties.
This case is cited by:

  • See Also – Rushforth And Others, Assignees of Rushforth, v Hadfield And Others (Commonlii, [1806] EngR 70, (1806) 7 East 224, (1806) 103 ER 86)
    A general lien is regarded in law as an exception, rather than the rule, because it advantages one creditor, otherwise unsecured, over the general body of unsecured creditors.
    Where no lien exists at common law, it can arise by contract with . .

(This list may be incomplete)

Last Update: 28-Sep-16
Ref: 343277

Cambridge Antibody Technology v Abbott Biotechnology Ltd and Another; Patc 20 Dec 2004

References: [2004] EWHC 2974 (Pat), [2005] FSR 590
Links: Bailii
Coram: Laddie J
Ratio: Rectification of an agreement was sought.
Held: Laddie J rejected a submission that evidence of the subjective state of mind of one of the parties contained in statements which had not been communicated to the other party (‘crossed the line’) was inadmissible. I
This case is cited by:

(This list may be incomplete)

Last Update: 02-Sep-16
Ref: 227185

Smart And Another v Sandars And Others; 6 Jul 1846

References: [1846] EngR 865, (1846) 3 CB 380, (1846) 136 ER 152
Links: Commonlii
Ratio: The mere relation of principal and factor confers, ordinarily, an authourity to sell at such times and for such prices as the factor may, in the exercise of his discretion, think best for his employer: but, if he receive the goods subject to any special instructions, he is bound to obey them. The authority, whether general or special, is revocable. Quaere, whether the factor’s authority to sell can be revoked after he has made advances upon the credit of the goods consigned to him, his authority then being coupled with an interest? In assumpsit, the declaration stated that the plaintiffs had consigned wheat to the defendants, who were corn factors, for sale on account of the plaintiffs ; that the defendants then promised the plaintiffs to obey and observe the lawful orders and directions of the plaintiffs to be given by them to the defendants in regard to the sale and disposal of the wheat, and that, although the plaintiffs ordered the defendants not to sell below a certain price, and although the same was a lawful order and direction in that behalf, yet the defendants, not regarding their promise, sold at a less price. Plea, that, after the delivery of the wheat to the defendants, they became and were under advances to the plaintiffs in respect thereof ; that they gave the plaintiffs notice that they required to be repaid such advances, and that in default they should sell the wheat and repay themselves; and that, although a reasonable time had elapsed, the plaintiffs did not repay them such advances ; whereupon the defendants, for the purpose of reimbursing themselves, sold the wheat for the best prices that could then be obtained for the same, &c. Held, that the plea was bad in substance, there being nothing in the transaction disclosed upon the record, from which it could be inferred that it was part of the contract that at any time the wheat should be forfeited, or the defendant’s authority to sell enlarged, so as to enable them to sell for repayment of advances, without reference to its being for the interest of the principals to sell at that particular time, and for that price.
This case is cited by:

  • Appeal from – Smart & another v Sandars & Others CCP ((1848) 5 CB 895, [1848] EngR 499, Commonlii, (1848) 136 ER 1132)
    A factor to whom goods have been consigned generally for sale, and who has subsequently made advances to his principal on the credit of the goods, has no right to sell them, contrary to the orders of his principal, on the latter neglecting, on . .

(This list may be incomplete)

Last Update: 31-Aug-16
Ref: 302760

Turner v Bladin; 20 Apr 1951

References: (1951) 82 CLR 463, [1951] HCA 13
Links: Austlii
Coram: Williams, Fullagar, and Kitto JJ
Ratio: Austlii (High Court of Australia) Contract – Specific performance – Outstanding obligations on either side – Contract of sale completely performed by vendor – Decree of specific performance against purchaser to enforce payment of purchase price.
Statute of Frauds – Action – Debt – Sale of interest in land – Contract not evidenced by writing – Consideration fully executed by vendor – Action by vendor in indebitatus assumpsit to recover purchase price or instalments thereof – Instruments Act 1928-1936 (No. 3706 – No. 4370) (Vict.), s. 128.

Last Update: 29-Aug-16
Ref: 395052

Laythoarp v Bryant; 30 Apr 1936

References: [1836] 3 Scott 238, [1836] EngR 652, (1836) 2 Bing NC 735, (1836) 132 ER 283
Links: Commonlii
Coram: Tindal CJ
Ratio: The Defendant purchased certain leasehold premises at an auction, and signed a memorandum of the purchase on the back of a paper containing the particulars of the premises, the name of the owner, and the conditions of sale: Held, that the Defendant was bound by his contract, notwithstanding it was not signed by the vendor.
Tindal CJ defined ‘consideration’: ‘Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff,provided such act is performed or such inconvenience suffered by the plaintiff, with the consent, either express or implied, of the defendant.’
This case cites:

  • Appeal from – Laythoarp v Bryant (, Commonlii, [1835] EngR 383, (1835) 1 Bing NC 421, (1835) 131 ER 1179)
    Plaintiff put up to sale by auction a lease of premises, which he occupied as assignee of the lease, stipulation not to produce any title prior to the lease. In an action against a purchaser for not completing his purchase, in which action Plaintiff . .

(This list may be incomplete)
This case is cited by:

  • Cited – Carlill v Carbolic Smoke Ball Co CA ([1893] 1 QB 256, [1892] 4 All ER Rep 127, [1892] 62 LJ QB 257, [1892] 67 LT 837, [1892] 57 JP 325, [1892] 41 WR 210, [1892] 9 TLR 124, [1892] 4 R 176, lip, Hamlyn, Justis, Bailii, [1892] EWCA Civ 1)
    The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 267731

Alati v Kruger; 29 Nov 1955

References: (1955) 94 CLR 216, [1955] HCA 64, [1955] ALR 1047
Links: Austlii
Coram: Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ
Ratio: (High Court of Australia) The remedy of rescission is only available if the parties can be returned to their respective positions before the contract was made. Dixon CJ said: ‘It is not that equity asserts a power by its decree to avoid a contract which the defrauded party himself has no right to disaffirm, and to revest property the title to which the party cannot affect. Rescission from misrepresentation is always the act of the party himself . . The function of a court in which proceedings for rescission are taken is to adjudicate upon the validity of a purported disaffirmance as an act avoiding the transaction ab inito, and, if it is valid, to give effect to it and make appropriate consequential orders . . The difference between the legal and the equitable rules on the subject simply was that equity, having means which the common law lacked to ascertain and provide for the adjustments necessary to be made between the parties in cases where a simple handing back of property or repayment of money would not put them in as good a position as before they entered into their transaction, was able to see the possibility of restitutio in integrum, and therefore to concede the right of a defrauded party to rescind, in a much wider variety of cases than those which the common law could recognize as admitting of rescission.’ and
‘When a contract is rescinded by reason of a recognised vitiating factor, the contract, as just noted, is set aside from the beginning. In such a case there can be no claim for damages for breach of contract, because in such situations there is no contract. Equally, if a claim is made by the victim for damages for breach of contract, there can be no rescission of the contract as the victim has by suing for breach clearly elected not to rescind.’
This case is cited by:

  • Approved – O’Sullivan v Management Agency and Music Limited CA ([1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351)
    The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 470685

Birmingham v Renfrew; 11 Jun 1937

References: (1937) 57 CLR 666, [1937] HCA 52
Links: Austlii
Coram: Dixon J, Latham CJ
Ratio: (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’
This case cites:

  • Cited – Dufour v Pereira ((1769) 1 Dick 419, (1769) 2 Harg Jurid Arg 304, Commonlii, [1769] EngR 63, (1769) Dick 419, (1769) 21 ER 332)
    The court was asked as to the validity and effect of a single joint will.
    Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
  • Cited – Re Oldham ([1925] Ch 75)
    The court was asked whether an agreement for mutual wills should be inferred. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Goodchild and Another v Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
    The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
  • Cited – In re Cleaver dec’d, Cleaver v Insley ChD ([1981] 1 WLR 939, [1981] 2 All ER 1018)
    Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
    Nourse J said: ‘The principle of all these cases is that a court of . .
  • Cited – Goodchild v Goodchild ChD (Times 22-Dec-95, Ind Summary 08-Jan-96, [1996] 1 WLR 694)
    The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
    Held: The wills were in identical terms, but . .
  • Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD (Bailii, [2007] EWHC 1314 (Ch), [2007] 4 All ER 81)
    The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
  • Cited – Walters v Olins CA (Bailii, [2008] EWCA Civ 782, [2009] Ch 212, [2009] 2 WLR 1, [2008] WTLR 1449)
    The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
    Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
  • Cited – Healey v Brown ChD ([2002] 19 EG 147, Bailii, [2002] EWHC Ch 1405)
    The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
    Held: . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 183791

Eckstein and Another v Reynolds; 30 May 1837

References: , [1837] EngR 770, (1837) 7 Ad & E 80, (1837) 112 ER 401
Links: Commonlii
Ratio: Defendant’s agent told plaintiff that he had called to tender £8 in settlement of defendant’s account ; plaiiitiff answered that he would take nothing leas than the bill, which defendant’s agent produced at the time, amourttirig to £19. Held, that the question whether this tender was conditional or unconditional, was proper to be Ieft to the jury.

Last Update: 08-Aug-16
Ref: 313887