Category: Contract

Simpson v Eggington; 9 Feb 1855

References: (1855) 10 Exch 845, [1855] EngR 220, (1855) 10 Exch 845, (1855) 156 ER 683
Links: Commonlii
Coram: Parke B
Ratio:It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The treasurer of a corporation paid their clerk (the defendant) the amount of his year’s salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment, but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the deferidatit for the recovery of certain monies paid to him on account of the corporation — Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.
The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent.
Held: Parke B said: ‘The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.’
This case is cited by:

  • Applied – Smith v Cox ([1942] 2 KB 558)
    The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed . .
  • Cited – Treasure & Son Ltd v Dawes TCC (Bailii, [2008] EWHC 2181 (TCC))
    The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
  • Cited – Park v Cho and Others ChD (Bailii, [2014] EWHC 55 (Ch), [2014] PTSR 769, [2014] WLR(D) 27, WLRD)
    The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

(This list may be incomplete)

Last Update: 21-Jul-16
Ref: 276500

Simpson v Eggington: 1855

References: (1855) 10 Exch 845
Coram: Parke B
Ratio:The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent.
Held: Parke B said: ‘The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.’
This case is cited by:

  • Applied – Smith v Cox ([1942] 2 KB 558)
    The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed . .
  • Cited – Treasure & Son Ltd v Dawes TCC (Bailii, [2008] EWHC 2181 (TCC))
    The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
  • Cited – Park v Cho and Others ChD (Bailii, [2014] EWHC 55 (Ch), [2014] PTSR 769, [2014] WLR(D) 27, WLRD)
    The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

(This list may be incomplete)

Last Update: 20-Jul-16
Ref: 276500

Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’): HL 1976

References: [1976] 1 WLR 989, [1976] 2 Lloyd’s Rep 621, [1976] 3 All ER 570
Coram: Lord Wilberforce
Ratio:In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. The real issue is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly, the enquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind.
Lord Wilberforce commented on the Wooler case saying: ‘I think that all of their Lordships are saying, in different words, the same thing — what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were’.
Lord Wilberforce said: ‘No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as ‘the surrounding circumstances’ but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.’
This case cites:

  • Explained – Charrington & Co Ltd -v- Wooler HL ([1914] AC 71)
    The court is entitled to know the surrounding circumstances which prevailed when the contract was made. A contract is not to be construed in a vacuum. The term ‘market’ did not have a ‘fixed legal significance’ .
    Lord Dunedin said: ‘in order to . .

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

  • Cited – Wilson -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2) HL (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
    The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
  • Cited – Mannai Investment Co Ltd -v- Eagle Star Assurance HL (Times 26-May-97, House of Lords, Bailii, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122)
    Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
  • Cited – Westminster City Council -v- National Asylum Support Service HL (House of Lords, Times 18-Oct-02, Bailii, [2002] UKHL 38, [2002] 1 WLR 2956, [2002] 4 All ER 654, [2002] HLR 58, (2002) 5 CCL Rep 511, [2003] BLGR 23)
    The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
    Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
  • Cited – Investors Compensation Scheme Ltd -v- West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
    The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
    Held: Investors having once . .
  • Cited – Youell and Others -v- Bland Welch & Co Ltd and Others CA ([1992] 2 Lloyd’s Rep 127)
    The court considered whether an underwiter’s slip was admissible when construing the policy which followed.
    Held: Staughton LJ: ‘It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, that . .
  • Cited – Bruton -v- London and Quadrant Housing Trust HL (Gazette 14-Jul-99, Times 25-Jun-99, Gazette 21-Jul-99, House of Lords, Bailii, [1999] 3 All ER 481, [2000] 1 AC 406, [1999] UKHL 26, [1999] 2 EGLR 59, [1999] 3 WLR 150, [1999] EG 90, [1999] L & TR 469, (1999) 31 HLR 902, [1999] NPC 73, [1999] 30 EG 91, (1999) 78 P & CR D21)
    The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
    Held: The housing association had a temporary licence to . .
  • Cited – Catnic Components Ltd & Another -v- Hill & Smith Ltd HL ([1983] FSR 512, [1982] RPC 183)
    The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The defendants had not been in business in this field at all, . .
  • Cited – Kirin-Amgen Inc and others -v- Hoechst Marion Roussel Limited and others etc HL (House of Lords, [2004] UKHL 46, Bailii, [2005] RPC 169, (2005) 28(7) IPD 28049, [2005] 1 All ER 667)
    The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
    Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
  • Cited – McDowall -v- Inland Revenue SCIT (Bailii, [2003] UKSC SPC00382)
    Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
  • Cited – Barclays Bank Plc -v- Weeks Legg & Dean (a Firm); Barclays Bank Plc -v- Lougher and Others; Barclays Bank Plc -v- Hopkin John & Co CA (Gazette 28-May-98, Gazette 24-Jun-98, Times 15-Jun-98, Bailii, [1998] EWCA Civ 868, [1998] 3 All ER 213, [1999] QB 309)
    The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
  • Cited – Crancour Ltd -v- Da Silvaesa and Another CA (Bailii, [1986] EWCA Civ 1, [1986] 1 EGLR 80, [1986] 52 P&CR 204, [1986] 18 HLR 265, [1986] 278 EG 618)
    The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
  • Cited – Persimmon Homes (South Coast) Ltd -v- Hall Aggregates (South Coast) Ltd and Another TCC (Bailii, [2008] EWHC 2379 (TCC))
    The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
    Held: The provisions had been intended and had achieved a prompt and binding settlement . .
  • Cited – Islam, Regina -v- HL (Bailii, [2009] UKHL 30, Times, [2009] 3 WLR 1)
    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 . .
  • Cited – Berrisford -v- Mexfield Housing Co-Operative Ltd SC ([2011] NPC 115, [2011] 46 EG 105, [2011] 3 WLR 1091, Bailii, [2011] UKSC 32, Bailii Summary, UKSC 2010/0167, SC Summary, SC)
    The tenant appealed against an order granting possession. The tenancy, being of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it was . .
  • Cited – Marley -v- Rawlings and Another SC (Bailii, [2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057, SC Summary, SC)
    A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
  • Cited – Arnold -v- Britton and Others SC (Bailii, [2015] UKSC 36, [2015] HLR 31, [2016] 1 All ER 1, [2015] WLR(D) 247, [2015] 2 WLR 1593, [2015] AC 1619, Bailii Summary, WLRD, UKSC 2013/0193, SC, SC Summary, SC Video)
    A standard lease of plots on a caravan park, contained a probision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
    Held: When interpreting a written . .
  • Cited – Arnold -v- Britton and Others SC (Bailii, [2015] UKSC 36, [2015] HLR 31, [2016] 1 All ER 1, [2015] WLR(D) 247, [2015] 2 WLR 1593, [2015] AC 1619, Bailii Summary, WLRD, UKSC 2013/0193, SC, SC Summary, SC Video)
    A standard lease of plots on a caravan park, contained a probision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
    Held: When interpreting a written . .

(This list may be incomplete)

Last Update: 02-Jul-16
Ref: 184430

Bromage And Another v Prosser; 2 Jun 1825

References: [1825] EngR 609, (1825) 1 Car & P 673, (1825) 171 ER 1362 (B)
Links: Commonlii
Ratio:Thls case having been again argued, by J L Adolphus, for the plaintiffs, and Campbell, for the defendants, the Court now gave Judgment on the motion for a new trial.
Abbot CJ (after stating the nature of the case) — On the general question, whether on a sale of goods for a specific purpose, a warranty is to be implied that they are resonably fit and proper for that purpose, I continue to be of the same opinion that was expressed by me at the trial, although some of my Brother Judges are as strongly of a contrary opinion We do not, however, feel ourselves called upon to decide that question , for, allowing that a person who sells a commodity fora specific shall be taken, by law, to undertake that it was reasonably fit and proper for that purpose, yet the plaintiffs have not, in this case, declared on that implied warranty, as the declaration states, in general terms, that the defendants undertaok that the copper in question should be good, substantial, and serviceable. Now we are all of opinion, that a warranty to that extent, and in those unqualified terms, could not be implied by law out of the circumstances attending the sale of an article like this, of which the defects were equally unknown to both parties at the time of the sale. The rule must therefore be made absolute.
Rule absolute for a new trial.
This case cites:

  • See Also – Bromage and Another -v- Prosser (Commonlii, [1824] EngR 822, (1824) 1 Car & P 475, (1824) 171 ER 1280)
    Semble, that malice is necessary to ground an action for words ; and that if words be proved to be spoken bona fide and without malice, no action lies for the speaking of them, though they be false and actionable in themselves; and though injury . .
  • See Also – Bromage And Another -v- Prosser (Commonlii, [1825] EngR 42, (1825) 4 B & C 247, (1825) 107 ER 1051)
    Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common acceptation of the term means ill-will against a person, but in its legal sense it . .

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 326700

Bromage and Another v Prosser; 20 Aug 1824

References: [1824] EngR 822, (1824) 1 Car & P 475, (1824) 171 ER 1280
Links: Commonlii
Ratio:Semble, that malice is necessary to ground an action for words ; and that if words be proved to be spoken bona fide and without malice, no action lies for the speaking of them, though they be false and actionable in themselves; and though injury result to the party from the speaking of them – and, semble, that the defendant may, under the general issue, go into evidence to shew that he spoke the words bona fide and without rnalice
This case is cited by:

  • See Also – Bromage And Another -v- Prosser (Commonlii, [1825] EngR 42, (1825) 4 B & C 247, (1825) 107 ER 1051)
    Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common acceptation of the term means ill-will against a person, but in its legal sense it . .
  • See Also – Bromage And Another -v- Prosser (Commonlii, [1825] EngR 609, (1825) 1 Car & P 673, (1825) 171 ER 1362 (B))
    Thls case having been again argued, by J L Adolphus, for the plaintiffs, and Campbell, for the defendants, the Court now gave Judgment on the motion for a new trial.
    Abbot CJ (after stating the nature of the case) — On the general question, . .

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 327813

Holman v Johnson; 5 Jul 1775

References: (1775) 1 Cowp 341, [1775] EngR 58, (1775) 98 ER 1120
Links: Commonlii, Commonlii
Coram: Mansfield LCJ
Ratio:Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
The question therefore is, ‘Whether, in this case, the plaintiff’s demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country.’
This case is cited by:

  • Cited – Hall -v- Woolston Hall Leisure Limited CA (Times 31-May-00, Gazette 15-Jun-00, Bailii, [2000] EWCA Civ 170, [2001] ICR 99, [2001] 1 WLR 225, [2000] 4 All ER 787)
    The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
  • Cited – Colen and Another -v- Cebrian (UK) Limited CA ([2003] EWCA Civ 1676, Bailii, Times 27-Nov-03, Gazette 15-Jan-04, [2004] ICR 568)
    The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
    Held: The contract . .
  • Cited – 21st Century Logistic Solutions Limited (In Liquidation) -v- Madysen Limited QBD ([2004] EWHC 231 (QB), Bailii, 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)
    The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
  • Cited – Tinsley -v- Milligan HL (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)
    Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
  • Cited – Abner Soleimany -v- Sion Soleimany CA (Times 04-Mar-98, Bailii, [1998] EWCA Civ 285)
    The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
  • Cited – Hyde Park Residence Ltd -v- Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA (Times 16-Feb-00, Gazette 24-Feb-00, Bailii, [2000] EWCA Civ 37, [2001] Ch 143)
    The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
    Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
  • Cited – J -v- S T (Formerly J) CA (Bailii, [1996] EWCA Civ 1016, [1998] Fam 103)
    The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
  • Cited – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .
  • Mentioned – Collier -v- Collier CA (Bailii, [2002] EWCA Civ 1095, [2002] BPIR 1057, [2002] 6 ITELR 270)
    The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
  • Cited – Vellino -v- Chief Constable of Greater Manchester Police CA (Times 09-Aug-01, Bailii, [2001] EWCA Civ 1249, [2002] 1 WLR 218, [2002] PIQR P10, [2002] 3 All ER 78)
    The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
  • Cited – Gray -v- Thames Trains Ltd and Another CA (Bailii, [2008] EWCA Civ 713, Times 09-Jul-08, [2009] 2 WLR 351)
    The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
  • Cited – Enfield Technical Services Ltd -v- Payne and Another CA (Bailii, [2008] EWCA Civ 393, Times 02-Jun-08, [2008] IRLR 500, [2008] ICR 1423)
    The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . .
  • Cited – Gray -v- Thames Trains and Others HL (Bailii, [2009] UKHL 33, Times, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167)
    The claimant had been severely injured in a rail crash caused by the defendant’s negligence. Under this condition, the claimant had gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of . .
  • Cited – Les Laboratoires Servier and Another -v- Apotex Inc and Others SC (Bailii, [2014] UKSC 55, [2015] 1 AC 430, [2014] WLR(D) 452, [2014] BUS LR 1217, [2015] 1 AC 430, [2014] 3 WLR 1257, Bailii Summary, WLRD, UKSC 2012/0158, SC, SC Summary, SC Video)
    The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
  • Cited – Hounga -v- Allen and Another SC (Bailii, [2014] UKSC 47, [2014] ICR 847, [2014] Eq LR 559, [2014] 4 All ER 595, [2014] 1 WLR 2889, [2014] IRLR 811, [2014] WLR(D) 353, Bailii Summary, WLRD, UKSC 2012/0188, SC Summary, SC)
    The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
  • Cited – Jetivia Sa and Another -v- Bilta (UK) Ltd and Others CA (Bailii, [2013] EWCA Civ 968, [2013] WLR(D) 333, [2014] 1 All ER (Comm) 176, [2013] 3 WLR 1167, [2014] 1 All ER 168, [2014] Ch 52, [2013] STI 2677, [2013] BCC 655, [2014] 1 BCLC 302, [2014] 1 Lloyd’s Rep 113, [2013] Lloyd’s Rep FC 620, [2013] STC 2298)
    Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

(This list may be incomplete)

Last Update: 22-Jun-16
Ref: 189937

Gamer’s Motor Centre (Newcastle) Proprietary Limited v Natwest Wholesale Australia Proprietary Limited; 24 Jul 1987

References: (1987) 163 CLR 236, [1987] HCA 30
Links: Austlii
Coram: Mason CJ
Ratio: Austlii (High Court of Australia) Sale of Goods – Sale by buyer obtaining possession with sellers consent – Delivery under sale, pledge or other disposition to third party receiving goods or documents of title in good faith – Delivery – Whether physical delivery required – Sale of Goods Act 1923 (NSW), ss. 5(1) ‘delivery’,28 – Factors (Mercantile Agents) Act 1923 (N.S.W.), s. 5(1).
This case is cited by:

  • Applied – Forsythe International (UK) Limited -v- Silver Shipping Co Limited and Others ([1994] 1 WLR 1334, [1993] 2 Lloyds Rep 268, [1994] 1 All ER 851)
    Delivery under section 24 requires a voluntary act by the person in possession because by section 61(1) of the 1979 Act, unless the context or subject matter otherwise requires, `delivery’ means `voluntary transfer from one person to another’. . .

(This list may be incomplete)

Last Update: 19-Jun-16
Ref: 470091

Attwood v Small etc; 22 Mar 1838

References: , [1838] EngR 515, (1835-40) 6 Cl & Fin 232, (1838) 7 ER 684
Links: Commonlii
Ratio:
This case cites:

  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 729, (1827) 7 B & C 390, (1827) 108 ER 768 (B))
    . .
  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 659, (1827) 3 Car & P 208, (1827) 172 ER 389)
    An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
    Held: That although with the clause referred . .
  • See Also – Attwood -v- Small (Commonlii, [1827] EngR 853, (1827) 2 Y & J 72, (1827) 148 ER 837 (A))
    Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
  • See Also – Small And Others -v- Attwood And Others (Commonlii, [1828] EngR 545, (1828) 2 Y & J 512, (1828) 148 ER 1021 (B))
    Amendment of pleadings . .
  • See Also – Small And Others -v- Attwood And Others (, Commonlii, [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051)
    Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and . .
  • At HL – Attwood -v- Small and Others HL (Bailii, [1838] UKHL J14, 7 ER 684, Bailii, [1838] UKHL J60)
    The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
    Held: . .

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

(This list may be incomplete)

Last Update: 11-Jun-16
Ref: 312521

Small v Attwood; 1 Jun 1838

References: , [1838] EngR 690, (1838) 3 Y & C Ex 105, (1838) 160 ER 633
Links: Commonlii
Ratio:The purchasers of certain mines having paid part of their purchase money, and having been let into possession, agreed to pay the residue of the purchase money by instalments, and in the meantime to pay to the vendor half-yearly interest on what should remain due. Having paid one half-year’s interest, but no portion of the remaining purchase money, they filed their bill to set aside the contract.

Last Update: 10-Jun-16
Ref: 312696

George Avery v Samuel Wilson Bowden; 26 Nov 1855

References: (1855) 5 E&B 714, [1855] EngR 842, (1855) 5 El & Bl 714, (1855) 119 ER 647
Links: Commonlii
Ratio:The parties agreed a charterparty involving the ship arriving at a port and taking 45 days to unload and load up before leaving. The defendant ordered the boat to leave early and without the cargo. He pleaded that, war having been declared between Britain and Russia, it would have been unlawful to load up. This would have counted as trading with the enemy.
Held: No cause of action for breach of contract had arisen before the performance of the contract would have become unlawful. A frustrating event (the Crimean War) could excuse further performance of a contract even if the relevant party was already in breach.
This case is cited by:

(This list may be incomplete)

Last Update: 10-Jun-16
Ref: 184745

Lyde v Barnard; CExC 1836

References: [1836] 1 M & W 101, [1836] EngR 146, (1836) 150 ER 363
Links: Commonlii
Coram: Gurney B, Parke B, Alderson B, Lord Abinger CB
Ratio:The question before the court was whether a misrepresentation, that a particular fund in which Lord Edward Thynne had a life interest was charged with only three annuities, was a representation relating to Lord Edward’s credit or ability within the statute. Gurney B explained the mischief to which Lord Tenterden’s Act of 1828 was aimed: ‘But a series of cases, commencing with the case of Pasley v Freeman (3 TR 51), had occurred, in which defendants were charged, not strictly and specifically as guarantees for the solvency of others, but on alleged representations and assurances respecting them and their credit or ability, averred to be false and fraudulent.
There is no doubt that there have been many cases in which false and fraudulent representations of the ability of others have been made, in order to obtain credit for them, by which honest men have suffered. On the other hand, there has been but too much reason to fear that innocent persons have been the victims, not merely of intentionally false, but of unintentionally exaggerated statements of conversations.
If inquiry were made and information given respecting the credit or ability of the person whom the inquirer was called upon to trust either with money or with goods, the inquiry would be private, the communication would be private, and, if the inquirer was a competent witness, on his evidence alone, without the possibility of contradiction or explanation, the case must rest.
It has been a subject of complaint that these cases had trenched upon the security intended to be afforded by the Statute of Frauds, and it was considered by the legislature that a person so circumstanced was entitled to the same protection as the Statute of Frauds had given to the person whom a plaintiff sought to charge for the debt or miscarriage of another. To afford this protection, among other purposes, the statute of 9 Geo.4, c. 14 was passed.
That act is intituled, ‘An Act for rendering written Instrument necessary to the Validity of certain Promises and Engagements.”
Alderson B said: ‘According to the view which I take of the act, the representation, in order to be within it, must, therefore, be of the third person’s trustworthiness, as evidenced by his character, conduct, ability, credit, trade, or dealings, and must be one whereby, if true, that trustworthiness is increased. If indeed the real clause as drawn by Lord Tenterden stood thus, ‘To the intent that such third person might obtain money or goods upon credit,’ which is highly probable, this conclusion would be strengthened. But I do not rely on that which is, after all, only matter of probable conjecture from the ungrammatical state of the sentence as it now stands.’
Parke B said: ‘The words of the clause in question are, it is to be observed, clearly inaccurate, probably from a mistake in the transcriber into the Parliamentary roll. We must make an alteration in order to complete the sense, and must either transpose some words, and read the sentence as if it were ‘to the intent or purpose that some other person may obtain money or goods upon credit,’ or interpolate others, and read it as if it were ‘to the intent or purpose to obtain credit, money, or goods on such representation.’ If we assume Lord Tenterden’s object to have been merely to prevent evasion of the Statute of Frauds, as we think it was, and use this a key for the construction of the clause, it would induce one to prefer the former alteration, by which the clause is made clearly to apply only to cases where the purpose of the representation is to obtain personal credit for the third person: but then, it would not apply to all cases of such credit, for it would include money and goods only, not work and labour done for the third person, or houses or land let to him, on the faith of such representation; which, however, are cases by no means of so frequent occurrence as transactions in money and goods. On the other hand, if we make the latter alteration, using the same key to the construction of the clause, we must reject the words ‘money or goods’ as surplusage, as they would be included in the general term credit. I think it highly probable that the first correction would make the clause such as Lord Tenterden originally wrote it; . .’
Lord Abinger CB said: ‘With regard to the remarks which have been made upon the introduction into the statute of the word ‘upon’, without any grammatical relation to the other words of the sentence, I must observe, that I am decidedly of the opinion that this word must be rejected as nonsensical, and that we cannot admit a conjectural transposition of it in order to interpret that statute. Neither do I think that either of the conjectures offered gives the most probable account for the introduction of the word. The manuscript of this clause most probably contained the word ‘thereupon’; on revising it, the author considered that the word was superfluous to express his meaning, and that it might possibly, if it had any effect, rather narrow the construction. He has therefore meant to strike it out, but has not carried his erasure with sufficient force through the latter part of the word. The word upon has, therefore, found its way into the print, and has escaped notice afterwards when the bill was in committee. The printers of bills for the two houses seldom commit an error on the side of omission. Every thing which is not beyond doubt erased in MS. is sure to be served up in print, and, if it should afterwards escape detection in committee, finds its way upon the rolls of Parliament, and into the Statute Book.’
Statutes: Statute of Frauds (Amendment) Act 1828
This case cites:

  • Cited – Pasley -v- Freeman ((1789) 3 Durn & E 51, (1789) 3 Term Rep 5F, Commonlii, [1789] EngR 1703, (1789) 3 TR 51, (1789) 100 ER 450)
    The court considered the tort of deceit. A representation by one person that another person was creditworthy was actionable if made fraudulently. A false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff . .

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

  • Cited – Contex Drouzhba Ltd -v- Wiseman and Another CA (Bailii, [2007] EWCA Civ 1201, Times 08-Jan-08, [2008] BCC 301)
    The defendant was a director of a company. He signed a letter for the company promising to pay for goods ordered. The representation was found to have been made fraudulently because he knew the company was insolvent, and unable to pay. He now . .
  • Cited – Lindsay -v- O’Loughnane QBD (Bailii, [2010] EWHC 529 (QB), [2012] BCC 153)
    The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
  • Cited – Roder UK Ltd -v- West and Another CA (Bailii, [2011] EWCA Civ 1126, [2012] QB 752, [2012] 3 WLR 469, [2012] 1 All ER (Comm) 659, [2012] 1 All ER 1305, [2011] NPC 101)
    The claimant sought to allege that the defendant company director was personally liable after misrepresentations as to the company’s creditworthiness in ordering goods when the defendant was really insolvent.
    Held: The defendant’s appeal . .

(This list may be incomplete)

Last Update: 04-Jun-16
Ref: 263275

Petrie And Another, Executors of Page Keeble, v Hannay, Baronet; 13 Nov 1789

References: [1789] EngR 2589, (1789) 3 TR 418, (1789) 100 ER 652
Links: Commonlii
Ratio If two persons jointly engage in a stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker with the privity atid consent of the other the whole sum, he may recover a moiety from that other in an action for money paid to his use; notwithstanding the 7 Qeo. 2, e. 8.

Last Update: 28-May-16
Ref: 368220

Alex Irvine of Drum, Esq, and His Guardians v The Right Hon George, Earl of Aberdeen, Mrs Margaret Duff of Coulter, Formerly Widow of Patrick Duff, Esq, Now Wife of Alexander Udny, Esq, and Him for His Interest: HL 2 Apr 1770

References: [1770] UKHL 2_Paton_249
Links: Bailii
Ratio Decret of Sale – Exclusive Title.-
When a decree of sale is impugned, as having been fraudulently obtained, held that production of such decree is not a sufficient title to exclude exhibition of other writs specially called for, as the grounds and warrants on which it proceeded, nor a bar to the action raised for restoration of an entailed estate sold for the entailer’s debts; reversing the judgment of the Court of Session.

Last Update: 14-Apr-16
Ref: 561677

Ingram v Little; 27 Jul 1960

References: [1961] 1 QB 31, [1960] EWCA Civ 1
Links: Bailii
Coram: Pearce LJ and Devlin LJ
Two ladies had a car for sale. A buyer came along. He fooled them into believing him to be someone else, and they sold him the car, after checking the name in the telephone directory. Before the cheque bounced, the rogue sold the car to the defendant from whom the ladies now sought the return of the car.
Held: Applying the rule nemo debt quod non habet, the car remained the property of original owners. Phillips v Brooke differed in that property had passed before the misrepresentation (majority). Devlin LJ dissenting: ‘The true spirit of the common law is to override theoretical distinctions when they stand in the way of doing practical justice. For the doing of justice, the relevant question in this sort of case is not whether the contract was void or voidable, but which of two innocent parties shall suffer for the fraud of a third. The plain answer is that the loss should be divided between them in such proportion as is just in all the circumstances. If it be pure misfortune, the loss should be borne equally; of the fault or imprudence of either party has caused or contributed to the loss, it should be borne by that party in the whole or in the greater part.’
This case cites:

  • Distinguished – Phillips -v- Brooks Ltd ([1919] 2 KB 243)
    A jeweller had a ring for sale. The buyer pretended to be somebody else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against . .

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

  • Followed – Lewis -v- Averay CA ([1972] 1 QB 198, [1971] 3 All ER 907, Bailii, [1971] EWCA Civ 4)
    A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
    Held: ‘When two parties have come . .
  • Cited – Norman Hudson -v- Shogun Finance Ltd CA (Times 04-Jul-01, [2001] EWCA Civ 1000)
    A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
    Held: The dealer had not taken all the steps he might have done to check the identity of the . .
  • Cited – Shogun Finance Limited -v- Hudson HL (House of Lords, [2003] UKHL 62, Bailii, Times 20-Nov-03, [2003] 3 WLR 1627, [2004] 1 LLR 532, [2004] 1 All ER 215, [2004] 1 AC 1101, [2004] 1 Lloyd’s Rep 532, [2004] RTR 12, [2004] PIQR P20, [2004] ELR 11, [2004] 1 All ER (Comm) 332)
    A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
    Held: (Lords Nicholls and Millett . .
  • Cited – Adelson and Another -v- Associated Newspapers Ltd CA (Bailii, [2007] EWCA Civ 701, Times 18-Jul-07, [2007] 4 All ER 330)
    The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
    Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .

(This list may be incomplete)
Last Update: 03-Mar-16 Ref: 188418

Seashell Shipping Corporation v Mutualidad de Seguros del Instituto Nacional de Industria (‘The Magnum’ ex ‘Tarraco Augusta’): CA 1989

References: [1989] 1 Lloyds Rep 47
Coram: Parker LJ
Where the decision as to forum depends upon the construction of the document or documents in one language and the rival courts are, on the one hand, courts whose native language is that of the document and on the other hand, courts whose native language is not that of the document, it is in the interests of the parties and the ends of justice that the true meaning should be ascertained and be decided by the courts whose native language is that of the document.
Parker LJ said: ‘In my view it would be unjust to the plaintiff to prevent him from proceeding in Courts where the result of his bargain would be to produce success and to force him to proceed in Courts where the result would or might be that the defendants escaped from their bargain.’
This case is cited by:

  • Cited – Sawyer -v- Atari Interactive Inc ChD (Bailii, [2005] EWHC 2351 (Ch), [2006] ILPr 8)
    The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
  • Cited – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
    A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .

(This list may be incomplete)
Last Update: 05-Feb-16 Ref: 237272

Forth v Simpson; 23 May 1849

References: [1849] EngR 641, (1849) 13 QB 680, (1849) 116 ER 1423
Links: Commonlii
A racehorse trainer cannot exercise a lien over a racehorse for his fees if the contract reserves to the owner (expressly or by implication) the right to decide the places at which and the jockeys by whom it is to be raced.
This case is cited by:

  • Cited – Your Response Ltd -v- Datateam Business Media Ltd CA (Bailii, [2014] EWCA Civ 281, [2014] CP Rep 31, [2015] 1 QB 41, [2014] 4 All ER 928, [2014] WLR(D) 131, [2014] 2 All ER (Comm) 899, [2014] 3 WLR 887, WLRD)
    The claimants employed the defendants to manage subscription lists for the claimants’ magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .

(This list may be incomplete)
Last Update: 01-Feb-16 Ref: 298946

The Ship ‘Marlborough Hill’ v Alex Cowan and Sons Limited: PC 1921

References: [1921] AC 444
Coram: Lord Phillimore
The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty court for an action in rem. The claim had been brought by consignees which provided for delivery to the shipper’s order.
Held: It was a bill of lading within the Act. The court noted that it purported to be negotiable. If this document is a bill of lading, it is a negotiable instrument. Other incidents of the document were standard for a bill of lading, such as detailed terms and conditions in familiar form; the fact that the document was called a bill of lading many times in the course of such provisions and that it was made subject to the US Charter Act; the fact that it provides that ‘If required by the shipowner, one signed bill of lading, duly endorsed, must be surrendered on delivery of the goods’; and that it ‘ends in the time honoured form’, viz ‘In witness whereof the master or agent of said vessel has signed three bills of lading, all of this tenor and date, of which if one is accomplished, the others shall be void’ The court emphasised that the document would work as merchants would expect a bill of lading to work. It accorded wit hstandard commercial practiceand the parties agreed to call it a bill of lading, and entered into obligations and acquired rights proper to a bill of lading. All the other incidents in its very detailed language are such as are proper to such a document.
Statutes: Admiralty Court Act 1861
This case is cited by:

(This list may be incomplete)
Last Update: 31-Jan-16 Ref: 181886

Chase And Others, Assignees of William And Thomas Hurst (Bankrupts), v James And David Westmore; 21 May 1816

References: [1816] EngR 501, (1816) 5 M & S 180, (1816) 105 ER 1016
Links: Commonlii
A workman haviag bestowed his labour upon a chattel in consderation of a price fixed in amount by hts agreement with the owner, may detain the chattel until the
price be paid; and this, though the chattel be delivered to the workman in different parcels, and at different times, if the work to be done under the agreement be entire. Semble, that where the parties contract for a particular time or mode of payment, the workman has not a right to set up a claim to the possession
inconsistent with the terms of the contract.
This case is cited by:

  • Cited – Your Response Ltd -v- Datateam Business Media Ltd CA (Bailii, [2014] EWCA Civ 281, [2014] CP Rep 31, [2015] 1 QB 41, [2014] 4 All ER 928, [2014] WLR(D) 131, [2014] 2 All ER (Comm) 899, [2014] 3 WLR 887, WLRD)
    The claimants employed the defendants to manage subscription lists for the claimants’ magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .

(This list may be incomplete)
Last Update: 29-Jan-16 Ref: 334194

Re De Leeuw, Jakens v Central Advance and Discount Corporation; Chd 1922

References: [1922] 2 Ch 540
Coram: Peterson J
A deed which bears a false signature is a forgery and creates no rights whatever.
This case is cited by:

  • Cited – Norman Hudson -v- Shogun Finance Ltd CA (Times 04-Jul-01, [2001] EWCA Civ 1000)
    A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
    Held: The dealer had not taken all the steps he might have done to check the identity of the . .

(This list may be incomplete)
Last Update: 21-Jan-16 Ref: 188410

Bunn, Executor of Bunn v Guy; 7 Nov 1803

References: [1803] EngR 697, (1803) 4 East 190, (1803) 102 ER 803
Links: Commonlii
A contract entered into by a practising attorney to relinquish his business and recommend his clients t0 two other attornies for a valuable consideration, and that he would not himself practise in such business within certain limits, and would permit them to make use of his name in their firm for a certain time, but without his interference, &c was holden to be valid in law.
Last Update: 12-Dec-15 Ref: 344738

Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd; Comc 17 Jul 2008

References: [2008] EWHC 1686 (Comm), [2009] 1 All ER (Comm) 16
Links: Bailii
Coram: Aikens J
Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems Regional Aircraft Limited (‘BAE’), and representatives of First Flight and were signed by a representative of BAE on behalf of Trident. Each provided for delivery to take place at Southend airport. Application for summary judgment under aircraft leasing agreements – no payment of rent. The defendant argued that the clause disallowing them from alleging any misrepresentation failed to satisfy the reasonableness requirement under the 1977 Act.
Held: The leases fell within section 26 and the agreements were exempt. Judgement was given for the claimant.
Statutes: Unfair Contract Terms Act 1977 26
This case is cited by:

  • Appeal From – Trident Turboprop (Dublin) Ltd -v- First Flight Couriers Ltd CA (Bailii, [2009] EWCA Civ 290, Times)
    The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .

(This list may be incomplete)
Last Update: 30-Nov-15 Ref: 271150

AMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board); 24 Mar 1993

References: [1993] 1 SCR 897, (1993) 102 DLR (4th) 96, [1993] 3 WWR 441, 77 BCLR (2d) 62, 150 NR 321, 23 BCAC 1, [1993] CarswellBC 47, JE 93-674
Links: Canlii
Coram: La Forest, Sopinka, Gonthier, Cory and McLachlin JJ
Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Prerogative writs – Injunctions – Appropriate forum for bringing action – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Whether or not an injunction appropriate.
Conflict of laws – Courts – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Sopinka J discussed the importance of comity considerations in anti-suit injunction applications and held: ‘the domestic court as a matter of comity must take cognisance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens . . the foreign court could reasonably have concluded that there was no alternative forum that was clearly More appropriate, the domestic court should respect that decision and the application [for an anti-suit injunction] should be dismissed.’
This case is cited by:

  • Approved – Airbus Industrie G I E -v- Patel and Others HL (Times 06-Apr-98, House of Lords, Gazette 07-May-98, Bailii, [1998] UKHL 12, [1999] 1 AC 119, [1998] 2 All ER 257, [1998] 2 WLR 686)
    An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
  • Cited – OT Africa Line Ltd -v- Magic Sportswear Corporation and others CA (Bailii, [2005] EWCA Civ 710, Times 21-Jun-05)
    The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .

(This list may be incomplete)
Last Update: 10-Nov-15 Ref: 228197

Hodgkinson v Simms; 30 Sep 1994

References: [1994] 3 SCR 377, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135
Links: Canlii
Coram: La Forest, L’Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by adviser — Ultimate decision as to whether or not to invest that of client — Substantial losses incurred during period of economic downturn — Whether or not fiduciary duty on part of adviser — If so, calculation of damages.
Contracts — Contract for independent services — Breach by failure to disclose — Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party’s duty to act in the other’s best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.
This case is cited by:

  • Cited – Cadbury Schweppes -v- FBI Foods ([1999] 1 SCR 142, Canlii, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577)
    Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
  • Approved – Pilmer -v- Duke Group Ltd ((2001) 207 CLR 165, [2001] HCA 31, Austlii)
    High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554204

Shackell v Rosier; 22 Apr 1836

References: , [1836] EngR 613, (1836) 2 Bing NC 635, (1836) 132 ER 245
Links: Commonlii
Coram: Tindall CJ
In consideration that Plaintiff had published a libel at Defendant’s request, and had at the like request consented to defend an action brought against Plaintiff for such publication, Defendant promised to indemnify Plaintiff from the costs of the action : Held, that the promise was void.
This case is cited by:

(This list may be incomplete)
Last Update: 01-Nov-15 Ref: 314945

Hardwick Game Farm v Suffolk Agricultural and Poultry Producers Association Ltd: HL 8 May 1968

References: [1968] UKHL 3, [1969] 2 AC 31
Links: Bailii
Coram: Lord Reid, Lord Morris of Borth-y-Gest, Lord Guest, Lord Pearce, Lord Wilberforce
The plaintiff had purchased quantities of turkey feed from the defendant. It contained a poisonous element, spores of a fungus aspergillus flavus, which killed its flock. The House was asked as to the effect of section 14 of the 1893 Act on the contract.
Statutes: Sale of Goods Act 1893 14
Last Update: 28-Oct-15 Ref: 248572

Surtees v Lister; 29 May 1861

References: [1861] EngR 638, (1861) 7 H & N 1, (1861) 158 ER 367
Links: Commonlii
A declaration stated that B and the defendant, joint owners of a horse and mare, agreed that the defendant should sell them, and pay one moiety of the proceeds to the plaintiff as the agent of B , who was abroad that the defendant sold the horse to C. for 600l, and the mare for 300l. and did not receive the price of the horse, but took from the purchaser of the mare a promissory note for 300l. which the defendant indorsed and delivered to the plaintiff as the agent of B, and the amount of which was received by the plaintiff as such agent that the defendant afterwards requested the plaintiff, upon his own responsibility, to pay the defendant one moiety of the 300l in the plaintiff’s hands as such agent, and the plaintiff paid the defendant 50l. That the defendant again requested the plaintiff, on his own responsibility, to pay the defendant 100l, the residue of the moiety of the 300l, which the plaintiff was willing to do provided the defendant, in consideration of the said sum of 50l. so paid and the further sum of 100l when paid, would undertake either to deliver to the plaintiff a bill of exchange for 233l 3s (being B.’s moiety of the proceeds of the sale of the horse, less the forfeits in respect of the same), drawn by the defendant upon and accepted by C at two months date, or pay the plaintiff 233l 3s in cash within two weeks , and thereupon the defendarit wrote and delivered to the plaintiff the following undertaking. ‘In consideration of your having paid me the sum of 150l. On account of my share of the mare, I hereby undertake to deliver to you a bill for 233l 3s. drawn by me upon and to be accepted by C at two months, or the above sum in cash within two weeks from this date.’ On demurrer : Held, that the declaration disclosed a sufficient consideration for the defendant’s promise.
Last Update: 26-Oct-15 Ref: 284399

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

References: July 11, 1989 unreported
It is a matter of construing the words of a contract used in accordance with their natural meaning and in the light of the surrounding circumstances in which the contract was made
This case is cited by:

  • Cited – Brian McGowan -v- Summit at Lloyds SCS (ScotC, Times 11-Jul-02)
    The contract provided for the exclusive jurisdiction of the English courts. The claimant challenged this under the Act. Held The 1982 Act modified art 17 of the Convention when putting it in effect. That difference did not lead to the conclusion . .

(This list may be incomplete)
Last Update: 25-Oct-15 Ref: 181247

Tanwar Enterprises Pty Ltd v Cauchi; 7 Oct 2003

References: (2003) 217 CLR 315, [2003] HCA 57
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
High Court of Australia – Vendor and purchaser – Contracts for sale of land – Default by purchaser – Notice of termination – Supplemental deed requiring completion by stipulated date – Time of essence – Default by purchaser – Notice of termination – Purchase price available following day – Specific performance – Whether unconscientious for vendors to exercise right of termination – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.
Equity – Relief against forfeiture – Contracts for sale of land – Default by purchaser – Whether unconscientious for vendors to exercise right of termination – Whether default occasioned by ‘accident’ – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.
This case is cited by:

(This list may be incomplete)
Last Update: 25-Oct-15 Ref: 553537

Cunard Steamship Co v Buerger: 1927

References: (1927) AC 1
A bailee may be exempted from liability by an exemption clause.
This case is cited by:

  • Cited – George Mitchell (Chesterhall) Ltd -v- Finney Lock Seeds Ltd CA (Bailii, [1982] EWCA Civ 5, [1983] 1 All ER 108, [1983] QB 284)
    The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost £192, but the farmer lost £61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .

Electricity Corporation of New Zealand Ltd v Fletcher Challenge Energy Ltd; 10 Oct 2001

References: [2002] 2 NZLR 433, (2001) 7 NZBLC 103, 477, [2001] NZCA 289
Links: Nzlii
Coram: Richardson P, Thomas J, Keith J, Blanchard J, McGrath J
Court of Appeal of New Zealand
Held: ‘The court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the court’s attitude will change. It will then do its best to give effect to their intention and, if at all possible, to uphold the contract despite any omissions or ambiguities.’
This case is cited by:

  • Approved – Carlyle (Scotland) -v- Royal Bank of Scotland Plc SC (Bailii, [2015] UKSC 13, Bailii Summary)
    The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
  • Cited – Santander (UK) Plc -v- Parker CANI (Bailii, [2015] NICA 41)
    Appeal by Parker against the judgment dismissing Mr Parker’s appeal against the Order of Master Bell refusing a stay on possession by Santander (UK) PLC of the appellant’s dwelling house.
    Held: A promisory note was equivalent to cash, but only . .

JP Morgan Chase Bank and others v Springwell Navigation Corporation; Comc 27 May 2008

References: [2008] EWHC 1186 (Comm)
Links: Bailii
Coram: Gloster J
Gloster J said: ‘terms which simply define the basis upon which services will be rendered and confirm the basis upon which parties are transacting business are not subject to section 2 of UCTA. Otherwise, every contract which contains contractual terms defining the extent of each party’s obligations would have to satisfy the requirement of reasonableness.’
Statutes: Unfair Contract Terms Act 1977
This case cites:

This case is cited by:

Cuckson v Stones; 1 Nov 1859

References: [1859] EngR 924, (1859) 1 El & El 247, (1859) 120 ER 902
Links: Commonlii
This case is cited by:

  • Cited – Societe Generale, London Branch -v- Geys SC (Bailii, [2012] UKSC 63, [2012] WLR(D) 394, [2013] 2 WLR 50, Bailii Summary, UKSC 2011/0110, SC Summary, SC)
    The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .

McDonald v Dennys Lascelles Ltd; 1 Mar 1933

References: (1933) 48 CLR 457
Links: Austlii
Coram: Dixon J
(High Court of Australia) ‘When a party to a simple contract, upon breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected.’
This case is cited by:

  • Cited – Astea (Uk) Ltd -v- Time Group Ltd TCC (Bailii, [2003] EWHC 725 (TCC), [2003] All ER (D) 212)
    The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
  • Approved – Hyundai Heavy Industries Co Ltd -v- Papadopoulos HL ([1980] 1 WLR 1129, [1980] 2 All ER 29, [1980] 2 Lloyds Rep 1)
    A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .
  • Restated – Bank of Boston Connecticut -v- European Grain and Shipping Ltd (‘The Dominique’) HL ([1989] AC 1056)
    A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .
  • Cited – Hyundai Heavy Industries Co Ltd -v- Papadopoulos HL ([1980] 1 WLR 1129, [1980] 2 All ER 29, [1980] 2 Lloyds Rep 1)
    A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .

In re An Act For Enabling The Newcastle And Darlington Junction Railway Company To Purchase The Brandling Junction Railway And In The Matter Of The York, Newcastle And Berwick Railway Act, 1847 etc; 7 Mar 1856

References: [1856] EngR 326, (1856) 3 Sm & G 307, (1856) 65 ER 671
Links: Commonlii
One of the conditions at an attempted sale by auction under a decree provided that the purchase should be completed on a day named, and that, if from any cause whatever the purchase-money should not then be paid, interest should be paid from that date. The purchase was by private contract, subject to the conditions of sale, and also subject to the purchase being approved by the Court. The purchase-money was a fund in Court, and after a long delay the conveyancing counsel approved of the title for the purchasers.
Held: Neither party being to blame for the delay, the purchasers could not be relieved from their obligation to pay interest.

The ‘Pegase’: 1981

References: [1981] I Ll Rep 175
Coram: Goff J
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single principle – though it is recognised that the application of the principle may depend on the degree of relevant knowledge held by the defendant at the time of the contract in the particular case’.
This case cites:

  • Cited – Victoria Laundry (Windsor) Ltd -v- Newman Industries CA ([1949] 2 KB 528)
    The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
    Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
  • Cited – Czarnikow (C ) Ltd -v- Koufos; The Heron II HL ([1967] 3 All ER 686, [1969] 1 AC 350, [1967] 3 WLR 1491, Bailii, [1967] UKHL 4)
    The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
  • Cited – Hadley -v- Baxendale Exc (Bailii, [1854] EWHC Exch J70, [1854] EngR 296, Commonlii, (1854) 9 Exch 341, (1854) 156 ER 145)
    The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

This case is cited by:

  • Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
    The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
    Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
  • Cited – Transfield Shipping Inc -v- Mercator Shipping Inc (The Achilleas) HL (Bailii, [2008] UKHL 48, Times 10-Jul-08, HL)
    The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .

Fowler v Fowler; 12 May 1859

References: [1859] EngR 598, (1859) 4 De G & J 250, (1859) 45 ER 97
Links: Commonlii
Coram: Lord Chelmsford LC
Lord Chelmsford LC said that a party seeking rectification must establish clearly ‘that the alleged intention to which he desires’ (the instrument) ‘to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to shew exactly and precisely the form to which the deed ought to be brought’.

Bem Dis A Turk Ticaret S/A Tr v International Agri Co Ltd; ‘SELDA’: ComC 31 Oct 1997

References: [1998] 1 Lloyd’s Rep 416, Times 13-Dec-1997
Coram: Clarke J
At common law the buyer’s remedy for failure to perform a contract of sale of goods is to claim damages for non-delivery. Where, as here, there was an available market, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered.
Arbitration appeal from Gafta. Construction of default clause 28 in Gafta – Form 100.
This case cites:

This case is cited by:

Falcke v Gray; 13 Jun 1859

References: [1859] EngR 710, (1859) 4 Drew 651, (1859) 62 ER 250
Links: Commonlii
The Court will enforce specific performance of a contract to purchase chattels, if damages will not be an adequate compensation.
But where the contract, although not actually fraudulent, was one in which the parties were not on an equal footing, the Plaintiff knowing, and the purchaser being ignorant, of the value of the thing sold, and the price appeared to be inadequate, the Court refused relief.

Blomley v Ryan; 28 Mar 1956

References: (1956) 99 CLR 362, [1956] HCA 81
Links: Austlii
Coram: Taylor J, McTiernan J, Fullagar J, and Kitto J
(High Court of Australia) Equity – Contract for sale and purchase of grazing property – Suit for specific performance brought by purchaser – Vendor aged and affected by long bout of rum drinking – Claim to set aside contract – Unconscionable bargain – Constructive fraud – Circumstances in which courts of equity will grant relief.
This case is cited by:

  • Cited – Alec Lobb (Garages) Ltd -v- Total Oil Ltd QBD ([1983] 1 All ER 944, [1983] 1 WLR 87)
    To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
  • Cited – Ramzan -v- Brookwide Ltd ChD (Bailii, [2010] EWHC 2453 (Ch), [2011] 2 All ER 38)
    The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .

Joyce v Joyce; 2 Jan 1978

References: [1978] 1 WLR 1170, [1979] 1 All ER 175
Coram: Megarry V-C
A claim was made for specific performance of an oral agreement to sell shares.
Held: The plaintiff had failed to show that if he issued another writ for the same relief, it would be not be defeated by the doctrine of laches. Payment of the purchase price is neither here nor there if the contract against which it is said to have been paid was in dispute. A plea of laches is available to a person against whom it is alleged that he holds the disputed asset as a bare trustee under an uncompleted contract: ‘In applying Birkett v James [1978] AC 297 to cases that are the subject to laches rather than any fixed period of limitation, I think that it is for the plaintiff to demonstrate the futility of striking out the earlier action; and to do this he must at least show that in the second action there is a prima facie case for his being able to overcome the difficulties resulting from the doctrine of laches. In this case the plaintiff has wholly failed to persuade me of this. Certainly the plaintiff has been very far from showing himself to be ‘ready, desirous, prompt and eager.’ The court therefore considered that ‘ it would be futile to dismiss the first action for want of prosecution, for although the defendant would still be exposed to the claims in the second action, those claims face greater difficulties than did the claims in the first action. In other words, the defendant is better off in facing only the second action and not having to meet the first. ‘
This case cites:

  • Cited – Birkett -v- James HL ([1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38)
    The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

This case is cited by:

  • Cited – Inglorest Investments Ltd -v- Robert Campbell & Another CA ([2004] EWCA Civ 408, Bailii)
    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 . .

Flight v Booth; 24 Nov 1834

References: [1834] 1 Bing NC 370, [1834] 1 Scott 190, [1834] 131 ER 1160, [1834] EngR 1087
Links: Commonlii
Coram: Tindal CJ
The auction particulars stated that the land was subject to covenants restricting use of the property for certain offensive purposes. After successfully bidding it was shown to be subject to other substantial restrictions against non-ofensive trades also.
Held: The purchaser was entitled to rescind the contract and recover his deposit. Even though a misdescription may be unintended, where it is a material and substantial point, and a court could infer that the purchaser would not have bid for the property, the purchaser is not restricted to recovering compensation but may choose to rescind.
This case is cited by:

  • Applied – In re Puckett & Smith’s Contract CA ([1902] 2 Ch 258, [1902] 71 LJ Ch 666, [1902] LT 189)
    Land was sold for redevelopment after being described as fit for building, and the vendor knew that this was the purchaser’s intention. The contract said that the purchaser should rely on his own inspection, and that the vendor should not be liable . .
  • Cited – Cleaver and Others -v- Schyde Investments Ltd CA (Bailii, [2011] EWCA Civ 929)
    The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .

‘The Alev’: 1989

References: [1989] 1 Lloyds Rep 138
The plaintiffs had chartered a vessel to hirers to carry the defendants goods. The hirers defaulted and the plaintiffs were in turn obliged to carry the goods but at extra costs which they passed on to the defendants who agreed to pay extra costs and not to detain or arrest the vessel while in port. This agreement was secured through threats, including a statement that unless the defendants paid the extra costs they would not get their cargo. When the ship was in port and had commenced unloading the defendants ignored the agreement and arrested the ship. They pleaded duress to any breach of contract and claimed damages.
Held: The agreement had been made under economic duress. The plaintiffs had issued an unlawful threat against the goods, and they knew that, since they were legally obliged to carry the cargo, even if at a loss of profit to themselves, such a threat would be unlawful.

London and Overseas Freighters v Timber Shipping Co SA ‘The London Explorer’: HL 1972

References: [1971] 1 Lloyds Rep 523, [1972] AC 1
Coram: Lord Morris, Lord Reid
The London Explorer was under a charter where the hire was ‘to continue until the hour of the day of her redelivery’. The charterers redelivered the ship about 3 months late because, although she had set out on a legitimate last voyage, she had been delayed by strikes at her last two discharging ports.
Held: The owners recovered for the additional hire at the charterparty rate even though the market rate during the overrun period was less than the charterparty rate.
Lord Morris: ‘Even though the time set out in a charterparty is not made of the essence so that continued use of the vessel after the stated time will not at once have the result that such continued use will be in breach of contract, it will be necessary that redelivery should be within a reasonable time. It might well be . . that with a clause similar to clause 4 a charterer would be liable to pay hire at the contractual rate to the time of actual redelivery and in addition (if the current rate exceeded the contractual rate) to pay damages in respect of his failure to redeliver within a reasonable time’.
Lord Reid said: ‘There is a controversy as to whether one can ever look at deleted words in an agreement. If the words were first inserted by the draftsman of the agreement and then deleted before signature then I have no doubt that they must not be considered in construing the agreement. They are in the same position as any other preliminary suggestion put forward and rejected before the final agreement was made. But it appears to me that striking out words from a printed form is quite a different matter. The process of adapting a printed form to make it express the parties’ intentions requires two things to be done. Those parts which are not to be part of the agreement are struck out and words are inserted to complete the rest of the form so as to express the agreement. There is no inference that in striking out words the parties had second thoughts: the words struck out were never put there by the parties or any of them or by their draftsman.’
This case is cited by:

  • Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
    The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
    Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .

Cook And Another v Lister; 19 Jan 1863

References: [1863] EngR 154, (1863) 13 CB NS 543, (1863) 143 ER 215, (1863) 1 New Rep 280, (1863) LJCP 121, (1863) 7 LT 712
Links: Commonlii
Coram: Willes J
Three parties including the defendant had drawn bills against each other, which bills came to the plaintiff as bona fide holder for value indorsee. Various sums had been paid on account, and the plaintiff sued the defendant but giving him credit only for the sums he had paid, saying that any excess would be held for the use of the drawers. The defendant offered to pay the sums he owed and the balance outsanding under all the bills, but no more, and paid that sum into court.
Held: Though the bills were not accomodation bills as such, the defendant could not be called on to pay the sum already paid again.
This case is cited by:

  • Cited – Hirachand Punamchand -v- Temple CA ([1911] 2 KB 11, [1911] 2 KB 330)
    The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .

Freeman And Another, Assignees of William Broadbent v Cooke; 1 Jul 1848

References: (1848) 2 Exch 554, 6 Dow & L 187, [1843-60] All ER Rep 185, [1848] EngR 687, (1848) 154 ER 652
Links: Commonlii
Where a party creates a belief in another’s mind, and causes the other to act upon that belief, he will not in subsequent court proceedings be heard to deny that belief: ‘a party who negigently of culpably stands by and allows another to contract on the faith of a fact which he can contradict, cannot afterwards dispoute that fact in an action against the party who he has himself assisted in deceiving.’
This case is cited by:

  • Applied – Smith -v- Hughes QBD ((1871) LR 6 QB 597, Hamlyn)
    If a party so conducts himself as to allow another to to believe that he was assenting to the terms proposed by the other, and acting upon that belief, and the other enters into the contract, the man so conducting himself is as bound as if he had . .

(This list may be incomplete)
Last Update: 03-Mar-16 Ref: 188458

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

References: [1864] EngR 595, (1864) 3 H & C 343, (1864) 159 ER 563
Links: Commonlii
Coram: Williams J
The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
Held: Williams J cited with approval Blackburn’s statement in his Treaty on the Contract of Sale that ‘when parties have agreed to act upon an assumed state of facts their rights between themselves are justly made to depend on the conventional state of facts, and not on the truth.’
This case cites:

  • Appeal from – M’Cance -v- The London And North Western Railway Company ([1861] EngR 967, Commonlii, (1861) 7 H & N 477, (1861) 158 ER 559)
    In an action against a railway Company, the first count of the declaration alleged that the plaintiff employed the defendants to provide trucks for the carriage of the plaintiff’s horses, for hire to be paid by the plaintiff, in consideration . .

This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

Dobie v Larkan; 23 Feb 1855

References: [1855] EngR 266, (1855) 10 Exch 776, (1855) 156 ER 654
Links: Commonlii
To an action on a bill of exchange for 501., drawn by M. upon and accepted by the defendant, and by M. indorsed to the plaintiff, the defendant pleaded first, that the bill was drawn by M. and accepted by the defendant, and indorsed by M. to the plaintiff, and the plaintiff first held tbe same for the special purpose of getting the same discounted, and to hand the proceeds thereof to the defendant ; that the plaintiff, acting in fraudulent collusion with M, got the bill discounted and, contrary to and in violation of the special purpose for which the bill was drawn, accepted and indorsed, and for which the plaintiff first held the same, handed to the defendant 171. and no more, being part of the proceeds thereof; and that there never was any other consideration for the acceptance by him of the bill, or for the plaintiff being the holder thereof. Secondly, as to 171, a tender of that amount. Held, on motion for judgment non obstante veredicto, that the first plea, though informal, was good in substance, since it confessed a prima facie title in the plaintiff by indorsement, and avoided it by shewing that he was the holder of the bill for a special purpose only, and without consideration – Also that the second plea was had, for tbe acceptor of a bill of exchange cannot plead a tender after the day of payrnent. A plea of tender ought not to be joined with a plea containing a denial of the right of action for the same sum.

Scott v Gillmore; 6 Jul 1810

References: [1810] EngR 393, (1810) 3 Taunt 226, (1810) 128 ER 90 (A)
Links: Commonlii
A bill of exchange, part of the consideration for which is spirituous liquor sold in less quantities than of 20s. value, is totally void, though part of the consideration was money lent -The statute 24 G. 2, c. 40, s. 12, making illegal the sale of spirits in less quantities than to 20s. value, unless paid for, extends to spirits mixed with water.
This case is cited by:

  • Cited – Fielding & Platt Ltd -v- Selim Najjar CA ((1969) 113 Sol Jo 160, [1969] 1 WLR 357, [1969] 2 All ER 150)
    The plaintiff company had contracted to make and export to the defendant an aluminium extrusion press. The defendant re-assured the plaintiff that it would be lawful for him to import the plant, but asked that the plant be described falsely on the . .

Clark v Malpas; 25 Apr 1862

References: (1862) 4 De GF & J 401, [1862] EngR 604, (1862) 31 Beav 80, (1862) 54 ER 1067
Links: Commonlii
The court found a contract to be an unconscionable bargain where a poor and illiterate man was induced to enter into a transaction of an unusual nature, without proper independent advice, and in great haste; and the resulting transaction has been, not just hard or improvident, but overreaching and oppressive.
This case is cited by:

  • Cited – Portman Building Society -v- Dusangh and Others CA (Bailii, [2000] Lloyd’s LR 19, [2000] EWCA Civ 142, [2000] 2 All ER (Comm) 221)
    The defendant sought to set aside an order for possession under a mortgage.
    Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
  • Cited – Alec Lobb (Garages) Ltd -v- Total Oil Ltd QBD ([1983] 1 All ER 944, [1983] 1 WLR 87)
    To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
  • Cited – Strydom -v- Vendside Ltd QBD (Bailii, [2009] EWHC 2130 (QB))
    The claimant sought recovery of a sum paid to the defendant as a commission by his union during his claim for personal injuries at work, relying on a term he sought to have implied into his contract, that the costs position should not be . .

Laythoarp v Bryant; 16 Jan 1835

References: , [1835] EngR 383, (1835) 1 Bing NC 421, (1835) 131 ER 1179
Links: Commonlii
Plaintiff put up to sale by auction a lease of premises, which he occupied as assignee of the lease, stipulation not to produce any title prior to the lease. In an action against a purchaser for not completing his purchase, in which action Plaintiff declared he was possessed of the lease, Held, the Defendant having rejected the abstract, that Plaintiff was bound to prove the execution of the lease by calling the attesting witness, and that it was not sufficient to prove the assignment to Plaintiff.
This case is cited by:

  • Appeal from – Laythoarp -v- Bryant ([1836] 3 Scott 238, Commonlii, [1836] EngR 652, (1836) 2 Bing NC 735, (1836) 132 ER 283)
    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 . .

Ferrier v Stewart; 24 Jun 1912

References: [1912] 15 CLR 32, [1912] HCA 47
Links: Austlii
Coram: Isaacs J
High Court of Australia – The plaintiffs were the surviving members of a firm, owed money by the defendant’s husband confirmed promissory notes. The firm extend his credit against new promissory notes, provided that they were indorsed by the defendant also so as to make her liable on the notes. This she agreed to do. In order to effect a contract between herself and the firm, the notes had formally to be indorsed by the firm to her before she put her indorsement on them. In fact, the notes were given to her, for her indorsement, before the firm’s indorsement appeared on them and she placed her indorsement on them as if they had already been indorsed to her. The notes were thereafter indorsed by the firm, so that on their face they appeared to have been indorsed in the correct chronological sequence, contrary to the facts as both parties knew them to be. The defendant subsequently refused to pay the bills on the ground that they had not been indorsed to her at the time of her signature.
Held: This defence failed. The parties had adopted a conventional basis for the transaction. They impliedly agreed that, when the promissory note should be completed by other indorsements, it should be assumed to have been issued and indorsed by the parties in due order. From this assumption the indorsee was not permitted to depart, although all parties had been aware of the actual state of affairs.
This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

Parkin v Thorold; 2 Jun 1851

References: [1851] EngR 542, (1851) 2 Sim NS 1, (1851) 61 ER 239
Links: Commonlii
A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.
This case is cited by:

  • Appeal from – Parkin -v- Thorold CA ((1852) 22 LJ Ch 170, [1852] EngR 535, Commonlii, (1852) 16 Beav 59, (1852) 51 ER 698)
    The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific . .

Phillips v Viscount Canterbury; 27 May 1843

References: [1843] EngR 704, (1843) 11 M & W 619, (1843) 152 ER 953
Links: Commonlii
A sheriff who has seized goods under a fi fa, and disposed of them by appraisement and bill of sale, is not entitled to deduct the expenses of the appraisement and sale ; the scale of fees framed under 7 Will. 4 & 1 Vict. c. 55, applying to ‘sales by auction’ only.

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

References: [1861] EngR 967, (1861) 7 H & N 477, (1861) 158 ER 559
Links: Commonlii
In an action against a railway Company, the first count of the declaration alleged that the plaintiff employed the defendants to provide trucks for the carriage of the plaintiff’s horses, for hire to be paid by the plaintiff, in consideration whereof the defendants promised the plaintiff that the trucks should he reasonably fit and proper for the carriage of such horses Breach: that the defendants did not provide fit and proper trucks, whereby the plaritiff’s horses were injured. Second count that the defendants having received certain horses of the plaintiff to be carried by railway, in consequence of the defective state of the truck and the negligerice and want of care of the defendants, the plaintiffs horses weie injured. Plea: payment of 25l. into Court Replication damages ultra. At the trial, it appeared that when the plaintiff delivered the horses to the defendants, he signed at their request a declaration that the value of the horses (did not exceed 10l. per horse, and that, on consideration of the rate charged for their conveyance, he thereby agreed that the same were to be carried entirely at the ownet’s risk. In the course of the journey the horses were injured in consequence of the defective state of the truck in which they were carried. The horses were worth more than 10l each, and if taken at, their real value the damage sustained by the plaintiff was 65l, but if valued at 10l each the 25l. paid into Court covered the plaintiff’s claim. A verdict having been entered for the plantiff for 40l. on motion to enter the verdict for the defendants, the Court being at liberty to draw inferences of fact Held that the plaintiff having made a wilfully false statement as to the value of the horses for the purpose of inducing, and having thereby induced, the defendants to enter into the contract, was not at liberty to shew their real value, in order to obtain compensation above the amount paid into Court — Semble, that thedeclaration of the value of the horses formed no part of the contract, and that even if it were it did not render the contract a conditional contract –Also, that, the stipulation that the horses should he carried entirely at the owner’s risk was not unreasonable and void within the meaning of the 17 & 18 Vict. C 31.
This case is cited by:

  • Appeal from – M’Cance -v- The London And North Western Railway Company ([1864] EngR 595, Commonlii, (1864) 3 H & C 343, (1864) 159 ER 563)
    The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
    Held: Williams J . .

Hubbard v Middlebridge Scimitar Ltd; 27 Jul 1990

References: [1990] EWHC 1 (QB)
Links: Bailii
Coram: Otton J
The plaintiff had contracted to sell a vintage Bentley racing car ‘Old Number One’ for £10 million pounds. The buyer came to suspect its authenticity and refused to complete. The plaintiff sought specific performance.
Held: During the course of its life any such car would have alterations and replacements made, and by 1930, only one or two parts of the original would remain. Included was a radiator on which had been inscribed a list of the car’s racing successes. Even so, there was a continuous history of the car through the various events and repairs. The claim succeeded. Adopting the criteria suggested the car was the Old Number One: ‘The plaintiff has faithfully, sympathetically and accurately restored it to its last known racing form, i.e. the form it was in Brooklands in 1932 when it crashed. There has been no break in its historic continuity from the time when it first emerged from the racing shop in 1929 until today.’
This case is cited by:

  • Cited – Lloyd -v- Svenby QBD (Bailii, [2006] EWHC 315 (QB))
    The two claimants sought title to a car registration plate and to a chassis number. They were to be applied to historic racing cars.
    Held: The power to assign registration marks lay with the Secretary of State. Any legal rights rested not with . .

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

References: [2004] NZCA 187
Links: NZLII
Coram: McGrath J, Hammond J, O’Regan J
(Court of Appeal of New Zealand) The claimant had settled a dispute with a Health Authority which alleged it had overclaimed for pharmacy supplies. It now claimed that the settlement should be set aside as having been entered into under duress.
This case cites:

  • Cited – Heffer and Another -v- Tiffin Green (A Firm) CA (Times 28-Dec-98)
    The plaintiff had sued the defendant accountants for negligently understating their business profits by inflating the figure for creditors. As a result, further tax had to be paid. The plaintiffs claimed the penalties and interest on tax paid . .
  • Cited – Kapur -v- J W Francis and Co CA (Bailii, [1999] EWCA Civ 1430)
    Notwithstanding a finding by a High Court Judge that Mr Kapur ‘had shaded the truth’, and ‘lacked frankness in his evidence’, the Court set aside a credibility finding on the basis that not only was there a lack of reasoning as to why the Judge . .

Dimskal Shipping Co SA v International Transport Workers Federation (‘The Evia Luck’): HL 1991

References: [1991] 4 All ER 871, [1992] 2 AC 152, [1992] 1 Lloyds Rep 115, [1992] IRLR 78, [1992] ICR 37, [1991] 3 WLR 875
Coram: Lord Goff of Chievely
The Plaintiff shipowners had been induced by industrial action against a vessel in Sweden, which actions would be lawful under Swedish law, to undertake to enter into written agreements with the ITF under which, inter alia, more generous agreements were to be entered into for payment of the crew, back-dated and back pay was to be paid under these. One of the documents signed provided that the undertaking was to be governed by English law. The Plaintiffs purported to avoid the agreements for duress and to recover the monies that they had paid under them.
Held: The House considered the developing law of economic duress. The contract had to be avoided before a claim for restitution could be maintained. The question of whether economic pressure constituted duress of such a kind as to entitle the innocent party to avoid the contract is to be determined by reference to the proper law of the contract. In order to justify avoidance of a contract, the economic pressure must be such as to be called illegitimate.
Lord Goff said: ‘I start from the generally accepted proposition, embodied in rule 184 set out in Dicey & Morris, The Conflict of Laws, 11th ed. (1987), vol.2, p.1213, that the material or essential validity of a contract is governed by the proper law of the contract, which in the present case is English law. Rule 184 is one of a ground of rules (rules 181-187) concerned with the scope of application of the proper law of a contract. It is expressed to be subject to two exceptions. The first exception asserts that a contract is generally invalid in so far as its performance is unlawful by the law of the place of performance; with that exception we are not, in my opinion, here concerned. The second (which is not strictly an exception to rule 184) concerns the primacy of what used to be called the distinctive policy of English law over any provision of foreign law, in so far as such provision might be relevant to the validity or invalidity of a contract; to that topic, I will briefly return in a moment.
Accordingly in the present case we look to English law, as the proper law, to discover whether the contract may, as a matter of principle, be affected by duress and, if so, what constitutes duress for this purpose; what impact such duress must have exercised upon the formation of the contract; and what remedial action is available to the innocent party. We know, of course, that by English law a contract induced by duress is voidable by the innocent party; and that one form of duress is illegitimate economic pressure, including the blacking or the threat of blacking of a ship. I can see no reason in principle why, prima facie at least, blacking or the threat of blacking a ship should not constitute duress for this purpose, wherever it is committed – whether within the English jurisdiction or overseas; for in point of fact its impact upon the contract does not depend upon the place where the relevant conduct occurs.
It follows therefore that, prima facie at least, whether or not economic pressure amounts to duress sufficient to justify avoidance of the relevant contract by the innocent party is a matter for the proper law of the contract, wherever that pressure has been exerted. Here, of course, the proper law is English law. Moreover in the present case there was at the relevant time no applicable statutory provision of English law which required that blacking or the threat of blacking should not be regarded as duress. So, unencumbered by any such provision, we are left simply with an English contract which is voidable by the innocent party if the formation of the contract has been induced by duress in the form of blacking or the threat of blacking a vessel. The question then arises whether there is any basis in law for rejecting this simple approach, on the ground that the conduct in question was lawful by the law of the place where it occurred, viz. Swedish law.
Before your Lordships, it was the primary submission of Mr. Burton on behalf of the I.T.F. that in relation to any duress abroad, in English law the court should, subject to overriding questions of public policy, look to the law of the place of duress to test its lawfulness or legitimacy. I of course accept that, if Mr. Burton’s submission is correct, it must be subject to the qualification that, if it was inconsistent with the distinctive policy of English law to treat the relevant conduct as lawful, the English courts (consistently with the second exception to rule 184 in Dicey & Morris, The Conflict of Laws) would refuse to do so. But the question is whether Mr. Burton’s submission is correct. I have to say that I know of no authority which supports his submission which, if correct, would require the recognition and formulation of a fresh exception to rule 184 in Dicey & Morris.’
This case is cited by:

  • Cited – Progress Bulk Carriers Ltd -v- Tube City IMS Llc ComC (Bailii, [2012] EWHC 273 (Comm))
    The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
  • Cited – Adam Opel Gmbh and Another -v- Mitras Automotive (UK) Ltd QBD (Bailii, [2007] EWHC 3205 (QB), [2008] Bus LR D55)
    The parties had agreed for the supply of automotive parts by the defendant to the claimant under a sole supply arrangement. None were in fact ordered for the first few years. The manufacturer then changed its design and made a new arrangement with a . .
  • Cited – DSND Subsea Ltd -v- Petroleum Geo Services Asa TCC (Bailii, [2000] EWHC 185 (TCC), [2001] BLR 23, [2000] BLR 530)
    Dyson J set out the principles applicable in establishing a pleading of commercial duress:
    (i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .

Miramar Maritime Corporation v Holborn Oil Trading Limited (‘The Miramar’): HL 1984

References: [1984] AC 676, [1984] 3 WLR 1
Coram: Lord Diplock
A bill of lading incorporated a charterparty. The question was whether clauses in the charterparty or bill of lading prevailed. The charter clause incorporated a demurrage clause making the charterer’s laible for demurrage, and the owners asserted that the included demurrage clause made the cargo’s consignee, as holders of the bill, directly responsible for the demurrage.
Held: On its true construction, the contract the parties to the bill of lading intended that the charterer alone should carry responsibility. There is no general rule of construction that an incorporated clause which related directly to the issue operate in substitution for clauses on the same issue in the bill.
This case cites:

This case is cited by:

The ‘Nukila’: CA 1987

References: [1987] 2 Lloyd’s Rep 146
Coram: Hobhouse LJ
Hobhouse LJ said: ‘Turning to the authorities it must at the outset be recognised that, whether or not they are strictly binding on us, they must, insofar as they represent the existing authoritative statements of the law only be departed from if they are clearly wrong. This principle has been stated on a number of occasions in the field of commercial law where it is recognised that the parties enter into contracts on the basis of the law as it has been stated in the applicable authorities. For a Court, in deciding a dispute under a commercial contract, later to depart from those authorities risks a failure to give effect to a contractual intention of those parties as evidenced by their contract entered into on a certain understanding of the law. ‘
This case cites:

  • Cited – Atlantic Shipping & Trading Co -v- Louis Dreyfus & Co HL ([1921] 2 AC 250, [1922] 10 Ll Rep 703)
    Lord Dunedin said: ‘My Lords in these commercial cases it is I think of the highest importance that authorities should not be disturbed and if your lordships find that a certain doctrine has been laid down in former cases and presumably acted upon . .

This case is cited by:

  • Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
    The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
    Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .

Kalatara Holdings Ltd v Benedict Thomas Andersen and Another; Chd 25 Jan 2008

References: [2008] EWHC 86 (Ch)
Links: Bailii
Coram: Evans-Lombe J
The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. The owner refused to execute a transfer into the name of the eventual purchaser.
Held: The arrangements would have been possible, and the defendants’ failure amounted to a breach of contract. The defendants were not entitled to rescind the contract and forfeit the deposit.
Statutes: Finance Act 2003 45, Law of Property (Miscellaneous Provisions) Act 1994 2(1)(A)
This case cites:

  • Cited – Union Eagle Limited -v- Golden Achievement Limited PC (Times 07-Feb-97, Bailii, [1997] UKPC 5, [1997] 2 WLR 341, [1997] AC 514, [1997] 2 All ER 215)
    (Hong Kong) The parties had contracted with each other for the sale of land. Completion was to take place on the appointed day at 5:00pm. A ten per cent deposit had been paid, and time had been made of the essence. The seller sought to rescind the . .
  • Cited – Redwell Investments Ltd -v- 1-3 Cuba Street Ltd CA (Bailii, [2005] EWCA Civ 1799)
    Lord Justice Chadwick considered what was meant by actual completion: ‘I accept, of course, that there is no absolute rule that completion takes place when title is transferred . . We were referred to no case in which it has been held that . .
  • Cited – Aero Properties Ltd and Another -v- Citycrest Properties Ltd and Another ChD (Gazette 21-Feb-02, [2000] 2 P&CR 21)
    Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the . .

Public Works Commissioner v Hills: PC 1906

References: [1906] AC 368
Coram: Lord Dunedin
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable for work done as a guarantee fund to answer for defective work and also certain security money deposited with the Government. The amount of that retained money depended on the progress of contracts other than the one in suit.
Held: The clause was a penalty. The principle to be deduced from the Clydebank case was that the criterion of whether a sum was a penalty or damages was to be found in whether the sum in question ‘can or cannot be regarded as a ‘genuine pre-estimate of the creditor’s probable or possible interest in the due performance of the principal obligation.’ The question of whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of breach.
The Clydebank case was decided according to ‘the rules of a system of law where contract law was based directly on the civil law and no complications in the matter of pleading had ever been introduced by the separation of common law and equity.’
This case cites:

  • Cited – Clydebank Engineering Co -v- Castaneda HL (Bailii, [1904] UKHL 3, (1904) 12 SLT 498, (1904) 7 F (HL) 77, [1905] AC 6)
    The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of £500 per week for each vessel’. . .
  • Cited – Public Works Commissioner -v- Hills PC ([1906] AC 368)
    (Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .

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

  • Cited – Public Works Commissioner -v- Hills PC ([1906] AC 368)
    (Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
  • Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
    The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .

(This list may be incomplete)
Last Update: 02-Jan-16 Ref: 440838

Churchill v Susanna Bertrand, Administratrix, andC Of Pateman; 23 Jun 1842

References: [1842] EngR 804, (1842) 3 QB 568, (1842) 114 ER 625
Links: Commonlii
Intestate granted an annuity to plaintiff. After his death, his administratix caused the annuity to be vacated for a defect in the memorial Plaintff to recover the balance of consideration money, brought indebitatus assumpsit against the admiriistratrix for money had and received by the intestate to plaintiff’s use, stating promises by intestate and by defendant. Held that, although a right to recover the consideration money became vested in plaintiff on the refusal to continue the annuity, such right did not go back, by relation, to the time when that money was originally paid : and therefore counts in the above forms were not applicable.

Cooke v Oxley; 14 May 1790

References: [1790] EngR 2367, (1790) 3 TR 653, (1790) 100 ER 785 (B)
Links: Commonlii
A. having proposed to sell goods to B., gave him a, certain time at his request to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A. ; yet A. was not liable in an action for not delivering them, for B. not being bound by the original contract, there was no consideration to bind A.
This case is cited by:

  • Explained – Byrne -v- van Tienhoven & Co ((1880) 5 CPD 344 (CP))
    The defendant offered by a letter to the plaintiffs to sell them goods at a certain price. They later wrote to the plaintiffs to withdraw the offer. Before they knew of the revocation, the plaintiffs accepted the offer by telegram. The defendants . .

Boreham v Bignall; 12 Mar 1850

References: [1850] EngR 384, (1850) 8 Hare 131, (1850) 68 ER 302
Links: Commonlii
A bequest of annuity to the testator’s nephew for life, or until his bankruptcy or insolvency, and after his decease, bankruptcy or insolvency to be paid to his wife, for the personal support of herself, her husband and his children, during the life of his nephew and his wife, and the survivor of them ; and in case they, or either of them, should attempt to alienate the annuity, the trustees to be empowered to apply it towards the support of their children. The first wife of the nephew, to whom he was married before the date of the will, survived the testator, and the gift of the annuity was held not to extend to the widow of the nephew who was his second wife.

Martel Building Ltd v Canada; 30 Nov 2000

References: 2000 SCC 60, [2000] 2 SCR 860
Links: Canlii
Coram: McLachlin CJ, Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Canlii Supreme Court of Canada – Torts – Negligence – Economic loss – Whether Canadian law recognizes duty of care on parties in commercial negotiations – Whether tort of negligence extends to damages for pure economic loss arising out of conduct of pre-contractual negotiations.
Torts – Negligence – Economic loss – Whether tender-calling authority owed duty of care to bidders in drafting tender specifications – Whether sphere of recovery for pure economic loss should be extended to cover circumstances surrounding preparation of tender specifications.
Contracts – Tenders – Obligation to treat all bidders fairly – Whether tender-calling authority breached its implied contractual duty to treat all bidders fairly and equally – If so, whether bidder’s loss caused by contractual breach.
The prospect of causing deprivation by economic loss is implicit in the negotiating environment
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Laird v Pim and Another; 18 Jan 1841

References: [1841] EngR 237, (1841) 7 M & W 474, (1841) 151 ER 852
Links: Commonlii
Where a party has been let into possession of lands under a contract of purchase, but does not complete the purchase, and refuses to pay the purchase-money, and no conveyance is executed, the vendors cannot recover from him the whole amount of the purchase-money, but only the damages actually sustained by his breach of contract. – In assumpsit by the vendor against the purchasers of land, the declaration stated, that in consideration of the plaintiff’s selling to the defendats certain land to be paid for as soon as the conveyance should be completed, the defendants promised to purchase and pay for the same. Averment, that although the plaintiff had allowed the defendant to enter into possession of the lands, and had always been ready and willing to make a good title, and offered the defendants to execute a conveyance, and would have tendered a proper conveyance, but that the defendants discharged him from so doing ; yet the defendants did not regard their said promise, and did not pay the plaintiff the purchase-money, or any part thereof. Plea, that no conveyance had ever been made or executed to the defendants:-Held, on general demurrer, that the plea was bad, and the declaration good. Quaere, whether, the declaration would have been sufficient on a special demurrer.
This case is cited by:

  • Cited – Hooper and Another -v- Oates CA (Bailii, [2013] EWCA Civ 91, [2013] 3 All ER 211, [2013] 1 P &CR DG22, [2013] 1 EGLR 93, [2014] 2 WLR 743, [2013] 9 EG 93, [2013] WLR(D) 72, [2013] 16 EG 108, [2014] Ch 287, WLRD)
    The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. . .

Robinson v Harman; 18 Jan 1848

References: [1848] 1 Exch Rep 850, (1843-60) All ER 383, [1848] EngR 135, (1848) 1 Exch 850, (1848) 154 ER 363
Links: Commonlii
Coram: Baron Parke
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same situation, with regard to damages as if the contract had been performed.’
This case is cited by:

  • Cited – Husain and Zafar -v- Bank of Credit & Commerce International SA CA (Bailii, [2002] EWCA Civ 82, [2002] 3 All ER 750, [2002] ICR 1258, [2002] IRLR 460, [2002] Emp LR 406, A3/2001/9016/CHANF)
    The appellants challenged the refusal of their claims for stigma damages following the collapse of their former employer.
    Held: If a relevant breach of contract is established, and causation, remoteness and mitigation are satisfied, recovery . .
  • Cited – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
    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 . .
  • Applied – Surrey County Council and Mole District Council -v- Bredero Homes Ltd ChD ([1992] 3 All ER 302)
    Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
  • Cited – Alfred Mcalpine Construction Limited -v- Panatown Limited HL (Times 15-Aug-00, House of Lords, Gazette 05-Oct-00, Bailii, [2000] UKHL 43, [2000] 4 All ER 97, [2000] 3 WLR 946, [2001] 1 AC 518)
    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 . .
  • Cited – Pegler Ltd -v- Wang (Uk) Ltd TCC (Bailii, [2000] EWHC Technology 137, 1997 TCC No 219)
    The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
    Held: Even though Wang had been ready to amend one or . .
  • Cited – Catlin Estates Ltd and Another -v- Carter Jonas (A Firm) TCC (Bailii, [2005] EWHC 2315 (TCC))
    The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims. . .
  • Cited – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
    The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
  • Cited – Transfield Shipping Inc -v- Mercator Shipping Inc (The Achilleas) HL (Bailii, [2008] UKHL 48, Times 10-Jul-08, HL)
    The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
  • Cited – Ruxley Electronics and Construction Ltd -v- Forsyth HL (Independent 12-Jul-95, Gazette 06-Sep-95, Times 03-Jul-95, [1996] 1 AC 344, [1995] 3 WLR 118, Bailii, [1995] UKHL 8, [1995] CLC 905, [1995] 3 All ER 268)
    The appellant had constructed to build a swimming pool for the respondent, but, after agreeing to alter the sepcification to construct it to a certan depth, in fact built it to the original lower depth, Damages had been awarded to the house owner . .

Chang v Registrar of Titles; 11 Feb 1976

References: (1976) 137 CLR 177, (1976) 50 ALJR 404, (1976) 8 ALR 285, [1976] HCA 1
Links: Austlii
Coram: Mason J, Jacob J
(High Court of Australia) The court discussed the trusteeship arising on a contract for the sale of land.
Mason J said: ‘It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser. However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor ‘is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay’ (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel’s view was accepted by the Court of Appeal in Rayner v Preston.
It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale’. Jacob J: ‘Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties’.
This case is cited by:

  • Cited – Jerome -v- Kelly (Her Majesty’s Inspector of Taxes) HL (House of Lords, [2004] UKHL 25, Bailii, 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)
    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 . .
  • Cited – Scott -v- Southern Pacific Mortgages Ltd and Others SC (Bailii, [2014] UKSC 52, Bailii Summary, [2014] HLR 48, [2015] 1 AC 385, [2014] 3 WLR 1163, [2014] WLR(D) 447, WLRD, Bailii Summary, UKSC 2012/0102, SC, SC Summary)
    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 . .

(This list may be incomplete)
Last Update: 19-Oct-15 Ref: 196888

Ockenden v Henly; 31 May 1858

References: [1858] EngR 757, (1858) El Bl & El 485, (1858) 120 ER 590
Links: Commonlii
Plaintiff put up for sale by auction real property, upon Conditions of sale which stipulated that the purchaser of each lot should ‘forthwith pay into the hands of the auctioneer deposit of 20 per cent. on the purchase money, and sign the agreement ‘to pay the remainder, and ‘that, if the purchaser of either lot shall fail to comply with these conditions, the deposit money shall be actually forfeited to the vendor, who shall be at full liberty to resell such lot either by public auction or private contract ; and any deficiency tbat may arise upon such resale, together with all expences attending the same, shall immediately after such second sale be made good by such defaulter ; and, on non-payment thereof, such amount shall be recoverable by the vendor, as and for liquidated damages.’ Defendant became a purchaser at the auction, but did not pay the deposit or complete the purchase. Plaintiff resold at a price below that for whiich defendant had purchased ; and the deficiency, with the expences of sale, exceeded the amount of the deposit.-Held: that plainitiff was entitled to recover from defendant the amount of the deficiency and expences only, and not, in addition to this, the amount of the deposit.–Per Curiam, Had the deposit been paid, and the bargain completed, the deposit would have gone in part payment of the purchase money : and, in the case of the non-completion of the bargain, if the deficiericy and expences had together been less than the deposit, the purchaser would have been entitled to the whole deposit, but nothing more.

Powney v Blomberg; 11 Jul 1844

References: [1844] EngR 772, (1844) 14 Sim 179, (1844) 60 ER 325
Links: Commonlii
A. executed B bond and mortgage to B. to secure £2,000 lent to him by B., with interest at 5%.
B having sold out a sum of stock to enable her to make the loan, the dividends of which exceeded the interest of the £2000 at £5 per cent., A. afterwards agreed, in consideration of her Ietting the £2000 continue secured at interest as aforesaid, to transfer to her, when requested so to do, the amount of the stock sold out, or, at her option, to pay to her a sum of money sufficient to repurchase it, and, in the meantime, to pay to her the amount of the dividends of it, intstead of the interest of the £2000.
Held, that the agreement was additional to and not substitutional for the bond and mortgage, and was, therefore, usurious.

Bluck v Gompertz; 7 Jun 1852

References: [1852] EngR 689, (1853) 7 Exch 862, (1852) 155 ER 1199
Links: Commonlii
Coram: Pollock, Baron Parke
The defendant had signed an undertaking to procure the acceptance of two bills for £200 and £146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for £150. The plaintiff drew bills for £200 and £500 and the defendant saw that they were accepted. The defendant wrote across the guarantee ‘I have received the two drafts, one being for £150, instead of £146, the other being an error in the invoice of £4’). The plaintiff signed this but the defendant did not. The guarantee as endorsed was treated as a valid memorandum of the contract since the endorsement had been made for the purpose of correcting the mistake and, being written by the defendant on the same piece of paper as he had originally signed, his original signature was plainly intended to authenticate the memorandum as amended, and could therefore be considered as doing so, notwithstanding that the words written on the paper by the defendant were written as the words of the plaintiff. Pollock CB said that the court had come to its conclusion not without some difficulty. Baron Parke said he had had great difficulty in bringing his mind to this conclusion.
This case cites:

  • See Also – Bluck -v- Gompertz ([1851] EngR 878, Commonlii, (1851) 7 Exch 67, (1851) 155 ER 859)
    The court has power, independently of statute to compel the plaintiff to produce for the defendant’s inspection a document upon which the action is brought, where the defendant is a party to te document and has no copy of it. . .

This case is cited by:

  • Cited – Golden Ocean Group Ltd -v- Salgaocar Mining Industries Pvt Ltd and Another ComC (Bailii, [2011] EWHC 56 (Comm), [2011] 2 All ER (Comm) 95, [2011] 1 CLC 125, [2011] CILL 3022, [2011] 1 WLR 2575)
    The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .

Smith v Fromont; 18 Jul 1818

References: [1818] EngR 611, (1818) 1 Wils Ch 472, (1818) 37 ER 202 (A)
Links: Commonlii
A. the owner of a stage coach from Bristol to London, sold to B. the profits of it for a part of the road, B. agreeing to supply the coach with horses for that part of the road, and A. for the remainder. B.’s. horses having been taken in execution and advertised for sale, A. provided his own horses to convey the coach along that part of the road comprised in B.’s agreement : and the Court refused a motion for an injunction to restrain him from so doing.

Millward v Littlewood; 6 Nov 1850

References: [1850] EngR 814, (1850) 5 Exch 775, (1850) 155 ER 339
Links: Commonlii
A declaration alleged, that in consideration that the plaintiff, at the defendant’s request, promised to marry him, he promised to marry her. Averments that the plaintiff hath continued and still is unmarried, and, until the discovery of the defendant’s marriage, was ready and willing to marry him, that, after the defendant’s promise the plaintiff discovered that the defendant, at the time of his promise, was, and still is, married, and that the plaintiff had not, at the time of the defendant’s promisee, any notice of the defendant’s then marriage. Held, on motion in arrest of judgment, that the declaration was good, and that the plaintiff’s remaining unmarried was a sufficient consideration to support the defendant’s promise – Quaere, whether a promise by a married man to marry another woman after his wife’s death is void.

Pritchard v Hitchcock; 6 Jun 1843

References: (1843) 6 Man & G 151, [1843] EngR 760 (B)
Links: Commonlii
P (the plaintiff) had drawn bills requiring WH to pay P a sum of money three months after date. WH accepted them, but to gain more time for WH, GH (the defendant) guaranteed payment of the bills. P pressed for payment. WH did ultimately pay P but was declared bankrupt. WH’s assignees in bankruptcy brought an action against P and obtained recovery of the sum paid as a fraudulent preference. P then sued GH on the guarantee. One defence of GH was that P had been paid and the debt discharged. GH contended that the judgment in favour of the assignees was not admissible to prove non-discharge of the debt.
Held: P was entitled to prove in the circumstances payment by WH had not discharged the debt, but GH was not a party to the assignee action. The matter was ordered to be retried as to whether there had been ‘a real and genuine payment of the bills by the bankrupt.’
This case cites:

This case is cited by:

  • Cited – Lloyds Bank Plc -v- Independent Insurance Co Ltd CA (Times 03-Dec-98, Bailii, [2000] 1 QB 110, [1998] EWCA Civ 1853)
    The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
    Held: The appeal was turned down. The bank was . .

Macquarie Generation v Peabody Resources Ltd; 14 Dec 2000

References: [2000] NSWCA 361, [2001] Aust Contract Reports 90-121
Coram: Beazley JA, Mason P
Beazley JA concluded: ‘Thus, it is not relevant for the Court to determine whether, if the true position had been known, the representee would or would not have altered his position in relation to the contract. ‘It is enough if a full and exact revelation of the material facts might have prevented him from doing so.” and ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’.
Mason P noted that: ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Studdy v Sanders And Another; 2 Jun 1826

References: [1826] EngR 977, (1826) 5 B & C 628, (1826) 108 ER 234
Links: Commonlii
Where a contract was made between A. and B., whereby A., having a quantity of apples, agreed to sell his cyder to B. at a certain price per hogshead, to be delivered at T. at a future time, and to lend such pipes as he had for the use of the cyder, to be manufactured on his, A.’s premises, and to be paid for before it was removed, and A, in pursuance, delivered a quantity of juice expressed from’the apples to a servant hired by B. to manufacture the cyder on A.’s premises, and before the cyder was completely manufactured, it was seized by the Excise-officers, because the place where it was deposited had not been entered, and was condemned in the Exchequer as B.’s property, together with the casks, and in assumpsit for goods sold and delivered, brought by A. against B., it appeared that the word cyder, at the place where the contract was made, meant the juice of the apples as soon as it was expressed : it was thereupon held, that the contract must be construed to have been for the sale of cyder in that sense of the word, and that the property passed to B. as soon as the apple juice was delivered to his servant. Secondly, that it was B.’s duty to enter t,he premises, and as through his default it became impossible for A. to deliver the goods at T., the failure to do so did not bar his action. Thirdly, that A. might recover in this action the price of the casks lent to the defendant.
This case cites:

Cook v Jones, Reeve, and Benwell; 11 Feb 1812

References: [1812] EngR 114, (1812) 15 East 237, (1812) 104 ER 834
Links: Commonlii
Where an annuity was granted by three, one of whom was known to be only a surety for the other two, to whose use the consideration-money was in fact applied ; yet all three being present when the money was paid down upon the table, and counted over by them all, and the receipt of it sigped by all, it was properly stated in the memorial as a payment made to the three. And though the deed and memorial stated the consideration-money to have been paid by the grantee by the hands of W. his agent, yet as it also appeared by the same instruments that a part of it was the money of a third person ; that was held to be no objection : for either W. was the agent in fact of the sole grantee, or impliedly the agent, through the medium of the grantee, for such third person also, whose interest was stated in the deed and memorial according to the truth. And one stamp as for one annuity is sufficient.
Last Update: 19-Nov-15 Ref: 338600

Hamlin v Great Northern Railway Co; 19 Nov 1856

References: (1856) 1 H & N 408, [1856] EngR 918, (1856) 156 ER 1261
Links: Commonlii
Coram: Pollock CB
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’
This case is cited by:

  • Not Followed – Jarvis -v- Swans Tours Ltd CA (lip, [1973] 1 All ER 71, [1972] 3 WLR 954, [1973] QB 233, Bailii, [1972] EWCA Civ 8)
    The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
    Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .

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

References: [1983] 1 WLR 1469, [1983] 1 Lloyds Rep 503
Coram: Mustill J
The Chrysalis was trapped in the Shatt-al-Arab waterway in the course of the Iran-Iraq war, and the parties disputed the frustration of the charter contract.
Held: Mustill J set out stages for considering an appeal from an arbitration award by differentiating between points of law and of fact: ‘Starting therefore with the proposition that the court is concerned to decide, on the hearing of the appeal, whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as the present, the answer is to be found by dividing the arbitrator’s process of reasoning into three stages:
(1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute.
(2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached.
(3) In the light of the facts and the law so ascertained, the arbitrator reaches his decision.
In some cases, the third stage will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In other instances, however, the third stage involves an element of judgment on the part of the arbitrator. There is no uniquely ‘right’ answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong.’
Only items at stage 2 are properly appealable: ‘The second stage of the process is the proper subject matter of an appeal under the 1979 Act. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator has arrived at another: and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct – for the Court is then driven to assume that he did not properly understand the principles which he had stated.
Whether the third stage can ever be the proper subject of an appeal, in those cases where the making of the decision does not follow automatically from the ascertainment of the facts and the law, is not a matter upon which it is necessary to express a view in the present case. The Nema and The Evia show that where the issue is one of commercial frustration, the Court will not intervene, save only to the extent that it will have to form its own view, in order to see whether the arbitrator’s decision is out of conformity with the only correct answer or (as the case may be) lies outside the range of correct answers. This is part of the process of investigating whether the arbitrator has gone wrong at the second stage. But once the Court has concluded that a tribunal which correctly understood the law could have arrived at the same answer as the one reached by the arbitrator, the fact that the individual judge himself would have come to a different conclusion is no ground for disturbing the award.’
Statutes: Arbitration Act 1979 1(3)
This case is cited by:

  • Cited – Penwith District Council -v- VP Developments Ltd TCC (Bailii, [2007] EWHC 2544 (TCC))
    The council sought to appeal against an interim arbitration award.
    Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
  • Cited – Guangzhou Dockyards Co Ltd -v- Ene Aegiali I ComC (Bailii, [2010] EWHC 2826 (Comm))
    The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .

Bruker v Marcovitz; 14 Dec 2007

References: 288 DLR (4th) 257, [2007] 3 SCR 607, 2007 SCC 54 (CanLII)
Links: Canlii, Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether matter justiciable – Whether agreement satisfies all requirements to make it valid and binding under Quebec law – Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement – Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
Human rights – Freedom of conscience and religion – Agreement with religious aspect – Jewish religious divorce or ‘get’ – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
This case is cited by:

  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Benwell v Inns; 18 Jul 1857

References: [1857] EngR 778, (1857) 24 Beav 307, (1857) 53 ER 376
Links: Commonlii
The servant of a milkman, in C. Street, London, agreed not to carry on the like business within three miles therefrom. Held, that this was not an undue restraint of trade, and the servant was restrained, by injunction, from violating his agreement.
A. agreed to take B. as his servant, ‘at such wages as might from time to time be agreed on,’ and B., on his part, agreed to serve A., and not to set up trade for himself within certain limits. B. accordingly entered into and continued in A.’s service, at wages agreed on. Held, that there was a good and valuable consideration to support the agreement as against B., and the Court enforced it. A milkman, carrying on business in three places, took the Defendant into his service.
The Defendant engaged, as regarded the milkman, his assignees and successors, not to carry on a similar trade within certain limits. A. sold his branch business at one of the three places to the Plaintiff, who retained the Defendant in his service.
Held, that the Plaintiff, as assignee and successor of part of the business, was entitled to the benefit of the Defendant’s contract.
Last Update: 19-Nov-15 Ref: 290524

Pettman v Keble; 4 Jun 1850

References: [1850] EngR 620, (1850) 9 CB 701, (1850) 137 ER 1067
Links: Commonlii
Coram: Wilde CJ, Maule J
The plaintiff, at the request of the defendant, ordered goods of W & R, telling them the purpose for which they were wanted. Before the order was given the plaintiff asked W & R for a list of prices, and, having obtained it, shewed it to the defendant, who, seeing that the price was such that the order could not possibly have been understood, asked the plaintiff if he thought W & R knew what was wanted ; whereupon the plaintiff said, ‘Oh yes. If anything is wrong, of course you will see me all right.’ To which the defendant answered, ‘Yes, I will bear you harmless.’ In consequence of some misunderstanding, arising in part probably from a verbal innacuracy in the letters conveying the order, the goods suppleid were useless to the defendant, and were returned to the sellers, who (the intrinsic value of the goods being only about 3l) expended in labour about 42l to make them correspond with the intention of the defendant, but, in so doing, reduced their substance so as to render them useless for his purpose. – The defendant, after considerable delay, persisting in his refusal to take the goods, W & R sued the plaintiff, and he (as the jury found, with the implied authority of the defendant) compromised the action by the payment to them of 22l 10s, and afterwards brought an action for money paid against the defendant, to recover that sum : Held, by Wilde, CJ Maule, J, and Talfourd, J, that the action lay. Held, by Cresswell, J., that the plaintiff should have defended the action brought against him by W. & R., and that there was no implied authority from the defendant to compromise it.

Ilyssia Compania Naviera SA v Bamaodah ‘The Elli 2’: CA 1985

References: [1985] 1 Lloyd’s Rep 107
Coram: May LJ, Ackner LJ
May LJ considered the creation of a contract by implication, saying: ‘no such contract should be implied on the facts of any given case unless it is necessary to do so: necessary, that is to say, in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.’
As to choice of jurisdiction by choice of law, May LJ considered BP v Hunt, saying that he would not go so far as Kerr J in saying that the fact that the contract was governed by English law was a predominating factor. That factor would have a different weight in different circumstances.
Ackner LJ observed that where exclusive reliance was placed on the contract being governed by English law, the burden of showing that there was good reason justifying service out of the jurisdiction was a particularly heavy one.
This case is cited by:

  • Cited – Sawyer -v- Atari Interactive Inc ChD (Bailii, [2005] EWHC 2351 (Ch), [2006] ILPr 8)
    The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
  • Cited – Novus Aviation Ltd -v- Onur Air Tasimacilik As CA (Bailii, [2009] EWCA Civ 122, [2009] 1 CLC 850, [2009] 1 Lloyd’s Rep 576)
    The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .

Cullinane v British ‘Rema’ Manufacturing Co Ltd: CA 1954

References: [1954] 1 QB 292
Coram: Lord Evershed MR, Jenkins LJ
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which it is pleaded was not sustainable, in so far as the plaintiff sought to recover both the whole of his original capital loss and also the whole of the profit which he could have made. I think that that is really a self-evident proposition, because a claim for loss of profits could only be founded upon the footing that the capital expenditure had been incurred.’ and
‘In the present case it is plain that to the knowledge of the defendants this machine was required to perform a particular function, and the warranty given shows what the function was that the machine was designed to perform. There is, therefore, no doubt at all that the plaintiff is entitled to rely on [the second limb of the rule in Hadley v Baxendale], and to claim as damages the business loss which must reasonably be supposed to have been, in the contemplation of both parties at the time when they made the contract, the probable result of the breach. In other words, this plaintiff is not confined to the loss which might be called the natural result of having a machine which turned out to be less that the purchase he has paid for it.’
This case is cited by:

  • Cited – Watford Electronics Ltd -v- Sanderson CFL Ltd CA (Gazette 03-May-01, Bailii, [2001] EWCA Civ 317, [2001] 1 All ER (Comm) 696, [2001] BLR 143, [2002] FSR 19, (2001) 3 TCLR 14, [2001] Masons CLR 57)
    The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
    Held: It is for the party claiming that a contract . .
  • Cited – Astea (Uk) Ltd -v- Time Group Ltd TCC (Bailii, [2003] EWHC 725 (TCC), [2003] All ER (D) 212)
    The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
  • Cited – Anglia Television -v- Oliver Reed CA ([1972] 1 QB 60, [1971] 3 All ER 690)
    The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
  • Cited – Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC (Bailii, [2000] EWHC Technology 127)
    cs Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses . .
  • Cited – East -v- Maurer CA ([1991] 1 WLR 461, Bailii, [1990] EWCA Civ 6, [1991] 2 All ER 733)
    The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to he defendant. They invested to try to make a . .
  • Cited – Parker and Another -v- SJ Berwin & Co and Another QBD (Bailii, [2008] EWHC 3017 (QB))
    The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
  • 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 – Bowlay Logging Limited -v- Domtar Limited ([1978] 4 WWR 105)
    (Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .

Slack v Tolson; 4 Aug 1826

References: [1826] EngR 1119, (1826) 1 Russ 553, (1826) 38 ER 213
Links: Commonlii
A, having previously borrowed £1000 of B, executes to him a bond for that sum, and B, two days afterwards, executes a deed, whereby he covenants that the bond shall not be enforced: some years afterwards, B having become bankrupt, his assignees bring an action on the bond, and file a bill to have the deed of covenant declared fraudulent. Held, that the Court will not interfere against the legal operation of the deed; there being nothing to shew that B was insolvent when he executed it; and there being evidence, that A. had also at that time pecuniary claims on E, and that the execution of the bond was accompanied by an agreement, that payment of it should not be enforced.

Hamilton v Mendes; 8 Jun 1761

References: 97 ER 787, (1761) 2 Burr 1198, [1761] EngR 56, (1761) 2 Burr 1198, (1761) 97 ER 787
Links: Commonlii
Coram: Lord Mansfield
The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case.
This case is cited by:

  • Cited – Homburg Houtimport BV -v- Agrosin Private Ltd (the ‘Starsin’) HL (House of Lords, [2003] UKHL 12, Bailii, Times 17-Mar-03, Gazette 15-May-03, [2003] 2 WLR 711, [2004] 1 AC 715, [2003] 1 CLC 921, 2003 AMC 913, [2003] 1 Lloyd’s Rep 571, [2003] 1 All ER (Comm) 625, [2003] 2 All ER 785, [2003] 1 LLR 571)
    Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
    Held: The specific . .

Crowhurst And Mary His Wife v Laverack; 20 Nov 1852

References: [1852] EngR 1029, (1852) 8 Exch 208, (1852) 155 ER 1322
Links: Commonlii
Coram: Baron Parke
The father and mother of an illegitimate child entered into an agreement for the maintenance of the child. He was to contribute on the basis that she would otherwise care for the child. The mother later married, and she and the father now sought payment for necessaries for the child.
Held: If the agreement purported to oblige the father to make payments if the mother agreed to support the child, then there was no consideration for the agreement, but if it was her agreement to take sole support of without affiliating the child, there would be good consideration.
This case is cited by:

  • Cited – Ward -v- Byham CA (Bailii, [1956] EWCA Civ 1, [1956] 2 All ER 318, [1956] 1 WLR 496)
    The parties were the parents of an illegitimate daughter. The child lived with the father at first, but the mother requested the child to be returned to her. The father agreed subject to a letter saying: ‘Mildred, I am prepared to let you have Carol . .

Island Holdings Ltd v Birchington Engineering Co Ltd; 7 Jul 1981

References: Unreported, 7 July 1981
Coram: Goulding J
Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the agreement by way of constructive trust, not to the ‘subject to contract’ arrangement but simply to the notion that the two parties should be obliged to share.
This case is cited by:

  • Cited – Banner Homes Group Plc -v- Luff Developments and Another CA (Gazette 10-Feb-00, Times 17-Feb-00, Bailii, [2000] EWCA Civ 18, [2002] 2 All ER 117, Bailii, [2000] EWCA Civ 3016, [2000] 2 WLR 772, [2000] Ch 372)
    Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
    Held: Although there was no formal . .
  • Cited – Gonthier and Another -v- Orange Contract Scaffolding Ltd CA (Bailii, [2003] EWCA Civ 873)
    The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
  • Cited – Thames Cruises Limited -v- George Wheeler Launches Limited, Kingwood Launches Limited ChD (Bailii, [2003] EWHC 3093 (Ch))
    The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .

(This list may be incomplete)
Last Update: 03-Mar-16 Ref: 188287

Perfect And Others v Musgrave; 10 Nov 1818

References: [1818] EngR 676, (1818) 6 Price 111, (1818) 146 ER 757
Links: Commonlii
One of two drawers of a joint promissory note, payable twelve months after date, who is surety for the other to the amount, is not discharged by the drawee not having demanded paymenit from the surety wheri due, nor till after having entered into a deed of composition with the principal and his other creditors, and received the compositiori money.