Feedstuff was sold by some merchants to a farmer. It was found to be defective. The farmer sued the merchants. The merchants brought in as third party the persons from whom they had purchased the feeding-stuff; they in their turn brought in their suppliers, and there was a long list of many parties brought in right down the chain. As between two of these suppliers a point arose as to whether a term that the buyer under the contract took the responsibility of any latent defects was a term which had been imported into the contract in question by reason of the course of dealing between those parties. There had been more than a hundred prior dealings between the parties, of a similar character, over a period of three years, in which an oral contract for the sale of goods had been followed by a confirmatory ‘Sold-Note’, sent the next day, by the seller to the buyer containing, on the reverse, ‘Conditions of Sale’. The buyer’s agent knew that there were conditions on the reverse, but had never read them.
Held:
Diplock LJ said: ‘Where . . the parties have not agreed to embody their contract in a written document but have entered into an oral contract with the intention of thereby creating legal rights and liabilities and it is sought to rely upon a term contained in some written document as modifying the respective rights and liabilities which would arise by implication of law from the nature of the contract, the only question is whether each party has led the other reasonably to believe that he intended that the rights and liabilities towards one another which would otherwise arise by implication of law from the nature of the contract, namely, a contract for the sale of goods, should be modified in the manner specified in the written document.’
Diplock LJ discussed the applicable lex situs: ‘ . . The proper law governing the transfer of corporeal moveable property is the lex situs. A contract made in England and governed by English law for the sale of specific goods situated in Germany, although it would be effective to pass the property in the goods at the moment the contract was made if the goods were situate in England, would not have that effect if under German law (as I believe to be the case) delivery of the goods was required in order to transfer the property in them.’
Diplock LJ
[1966] 1 WLR 287
England and Wales
Cited by:
Appeal from – Henry Kendall and Sons v William Lillico and Sons Ltd HL 8-May-1968
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 . .
Cited – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Lists of cited by and citing cases may be incomplete.
Contract, International
Leading Case
Updated: 01 November 2021; Ref: scu.562089