Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti guarantees about outstanding demurrage, if any, and for balance freight’ The brokers stamped and signed the front page ‘For and on behalf of charterers as brokers only’. The intervening pages were, so far as the brokers were concerned, simply stamped with the brokers’ stamp without any indication of capacity. The last page (which was the last page of the typed additional clauses 18-55) bore the brokers stamp and a signature below the words ‘Charterers’. There was an oral contract, made in the course of telephone conversations, by which Marti guaranteed the liabilities of the charterers in respect of demurrage and the balance of the freight.
Held: Lord Brandon indicated that there were two possibilities: a) Marti signed the page containing clause 24 as a contracting party, in which case the prior oral agreement of guarantee was subsumed in the written agreement signed by Marti on its own account so that there was a written agreement of guarantee signed by the person to be charged therewith and enforceable in the first of the two ways prescribed by the Statute; and b) Marti signed the charterparty, including clause 24, solely as agents of the charterers, in which case the signature, although affixed as agent for the charterers, was nevertheless a note or memorandum of the prior oral agreement. It was irrelevant with what intention or in what capacity Marti signed.
Held: The contention failed. It was irrelevant in what capacity or with what intention the document there being considered was signed. What mattered was the signature.
Judges:
Lord Brandon
Citations:
[1991] 3 WLR 330, [1992] 1 AC 21, [1991] 3 All ER 758, [1991] 2 Lloyds Rep 311
Jurisdiction:
England and Wales
Citing:
Cited – In re Hoyle CA 1893
ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol . .
Cited – Evans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .
Cited by:
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Lists of cited by and citing cases may be incomplete.
Contract, Transport
Updated: 01 May 2022; Ref: scu.241712