The respondent had contracted to supply tinned corned beef to the appellant, but had become unable to fulfil the orders because of industrial action in Brazil. The appellant had purchased supplies elsewhere and set off the cost of that against the sums claimed due, and had further resisted payment of the balance against further anticipated losses. Each party referred to its own standard terms and conditions. The judge had found the defendant’s terms to be applicable.
Held: The appeal succeeded. Each party had made known to the other that it intended to contract on its own terms, and: ‘knowing that they had not – and, in the circumstances, probably could not – reach agreement as to the applicability of either set of standard terms, the only inference that can be drawn is that their agreement was made on the basis that neither set of standard terms would be applicable. That conclusion seems to me at least as likely to accord with reality as a conclusion either that they reached no binding agreement at all or that either agreed to contract on the standard terms of the other.’
Under the generallaw, Lidl was entitled under the general law (i) to debit Hertford with an amount (by way of damages for breach of the obligation to deliver) equivalent to the additional costs of obtaining stocks from other sources and (ii) to set off that amount against moneys due to Hertford in respect of deliveries already made.
The respondents had not been entitled to hold the contract terminated.
Judges:
Chadwick, Longmore, Lloyd LJJ
Citations:
[2001] EWCA Civ 938
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Frost v Knight 1872
The doctrine of repudiatory breach is largely founded upon considerations of convenience and the opportunities which it affords for mitigating loss. It applies even where the obligation to be performed at a future date is a contingent obligation. . .
Cited – Taylor v Oakes, Roncoroni and Co 1922
Greer J said: ‘It is a long established rule of law that a contracting party, who, after he has become entitled to refuse performance of his contractual obligations, gives a wrong reason for his refusal, does not thereby deprive himself of a . .
Cited – James Shaffer Ltd v Findlay Durham and Brodie CA 1953
The defendants were desirous of doing, and were in fact doing, their utmost to perform their contract, but remained in breach.
Held: A mere misconstruction of the obligations in a contract does not amount to repudiation. A party who takes . .
Cited – Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd CA 1972
The defendants held a lease from the plaintiffs of a garage, the lease containing a solus-site agreement, preventing the defendants from selling any petrol but the plaintiffs’ and requiring the defendants to pay for petrol on delivery. The . .
Cited – Woodar Investment Development Ltd v Wimpey Construction UK Ltd HL 14-Feb-1980
Wimpey agreed to buy land from Woodar for a sum of andpound;850,000 of which andpound;150,000 was to be paid to Transworld. A month later Wimpey sent a letter purporting to rescind the contract and Woodar sued for damages including the . .
Cited – State Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 31 May 2022; Ref: scu.147584
