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Contract - From: 1930 To: 1959

This page lists 228 cases, and was prepared on 20 May 2019.

 
Re Anziani [1930] 1 Ch 407
1930

Maugham J
Contract
Maugham J considered what law applied when a transfer of the title to goods was asserted: "I do not think that anyone can doubt that, with regard to the transfer of goods, the law applicable must be the lex situs. Business could not be carried on if that were not so"
1 Citers


 
C Hole v Garnsey [1930] AC 472
1930
HL
Lord Tomlin
Contract
Under Rule 64 of a Society registered under the Act, rules could be amended "by resolution of a three-fourths majority at a special general meeting". Various amendments were carried by a three-fourths majority of the shareholders. The effect of one of the amendments, if valid, was to impose on many members an obligation to subscribe for additional shares. The appellant was a dissentient member who sought to challenge the power of the society to impose such an obligation. Held: The House considered the Society's powers of amendment to its rules. A power of amendment reserved in a trust must be exercised for the purpose for which it was granted. The amendment here not only to lead to absurd and fundamentally unacceptable conclusions, but was also at variance with the essential nature of the transaction and the relationship between the parties.
Lord Tomlin said: "Does a power enabling a majority to amend the rules justify as against a dissenting member any alteration whatever, where, as here, neither by the statute nor by the rules themselves is any one rule expressed to be more fundamental and unalterable than any other?
The answer in my judgment must be in the negative. In construing such a power as this, it must, I think, be confined to such amendments as can reasonably be considered to have been within the contemplation of the parties when the contract was made, having regard to the nature and circumstances of the contract. I do not base this conclusion upon any narrow construction of the word "amend" in Rule 64, but upon a broad general principle applicable to all such powers."
Industrial and Provident Societies Act 1893
1 Citers


 
Herbert Clayton and Jack Waller Ltd v Oliver [1930] AC 209
1930
HL
Lord Buckmaster
Damages, Contract
When awarding damages for breach of contract courts should take care to confine the damages to their proper ambit: making good financial loss. When considering an award of damages to an actor who should have been billed to appear at the London Hippodrome, the court regarded loss of publicity rather than loss of reputation as the preferable expression.
1 Citers


 
Thompson v LMS (1930) 1 KB 41
1930


Contract
The defendant train company claimed exemption from liability for damages under a clause printed not on the ticket, but in small print on the rear of the timetable. Held: The clause was successfully incorporated in the contract and exempted the company from liability.

 
Lynn v Bamber [1930] 2 KB 72
1930

Talbot J
Torts - Other, Contract
A cause of action in contract arises when the contract is breached. Talbot J said: "There is no question that the three learned judges who decided that case stated in emphatic and unambiguous language that contributory negligence is a good defence to an action of this class; but it is said that the expression of opinion can be disregarded in this court because it is not necessary for the purpose of deciding that case that that opinion should be expressed. I do not agree, any more than the other members of this court, that that expression of opinion was in fact unnecessary, and it appears to me that it is not legitimate to say that it should be disregarded . . If a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case and the reasons for decision. It seems to me, however, to be an abuse of language to describe as obiter dicta the deliberate pronouncements in Dew's Case, which were all made expressly as reasons for the decision to which the court there came, and even if I did not assent to them, I should certainly regard these pronouncements as authoritative."
1 Cites

1 Citers


 
Bell v Lever Brothers Ltd [1931] 1 KB 557
1931
CA
Greer LJ, Lawrence LJ
Company, Contract
The court was asked as to the duties of a company director: "It does not seem to me open to question that the directors of a company occupy a fiduciary position towards the company, with the result that they cannot retain a benefit they have obtained by an agreement with the company unless they have made full disclosure of all material facts known to them."
1 Citers



 
 Kolbin and Sons v Kinnear and Co Ltd; HL 6-Jul-1931 - [1931] UKHL 4; (1931) 40 Ll L Rep 241; 1931 SLT 464; 1931 SC (HL) 128

 
 Bell v Lever Brothers Ltd; HL 15-Dec-1931 - [1932] AC 161; [1931] UKHL 2

 
 Banco de Portugal v Waterlow and Sons Ltd; HL 28-Apr-1932 - [1932] AC 452; [1932] UKHL 1

 
 WN Hillas and Co Ltd v Arcos Ltd; HL 5-Jul-1932 - [1932] All ER 494; (1932) 147 LT 503; [1932] UKHL 2; [1932] 43 LI LR 359
 
Vanbergen v St Edmunds Properties Ltd [1933] 2 KB 223
1933
CA
Lord Hanworth MR
Contract
Where a variation to a contract agreed upon enables one party to alter its performance under the existing agreement, for it to amount to consideration it must be of some benefit to the other party, and if the variation is introduced entirely for the benefit of the party otherwise in breach it will not constitute good consideration.
Lord Hanworth MR said "It is a well established principle that a promise to pay a sum which the debtor is already bound by law to pay to the promisee does not afford any consideration to support the contract."
1 Citers


 
Vandepitte v Preferred Accident Insurance Corp. of New York [1933] AC 70
1933
PC
Lord Wright
Contract, Insurance
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be available to an authorised driver. Held: The Board rejected the claim as there was no evidence that the father had contracted on behalf of anybody but himself nor that he intended to create a beneficial interest for his daughter. The policy expressly provided that it should benefit a third party (the daughter) and, in effect, a person injured by her negligent driving. However, if a trust is created and if the trust refuses to enforce an obligation, the beneficiary may sue for enforcement, joining the trustee as a defendant
Lord Wright: "No doubt at common law no one can sue on a contract except those who are contracting parties … the rule is stated by Lord Haldane in Dunlop Pneumatic Tyre Co. v. Selfridge & Co.: "My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam." In that case, as in Tweddle v Atkinson, only questions of direct contractual rights in law were in issue, but Lord Haldane states the equitable principle which qualifies the legal rule, and which has received effect in many cases, as, for instance, Robertson v. Wait; Affrétéurs Réunis Société Anonyme v. Leopold Walford (London), Ld.; Lloyd's v. Harper – namely, that a party to a contract can constitute himself a trustee for a third party of a right under the contract and thus confer such rights enforceable in equity on the third party. The trustee then can take steps to enforce performance to the beneficiary by the other contracting party as in the case of other equitable rights. The action should be in the name of the trustee; if, however, he refuses to sue, the beneficiary can sue, joining the trustee as a defendant. But, though the general rule is clear, the present question is whether R.E. Berry can be held in this case to have constituted such a trust. But here again the intention to constitute the trust must be affirmatively proved: the intention cannot necessarily be inferred from the mere general words of the policy."
1 Citers



 
 Wyatt v Kreglinger and Fernau; CA 1933 - [1933] 1 KB 793
 
Hvalfangerselsapet Polaris Aktieselskap v Unilever Limited and Others [1933] Comm C1
1933
HL
Lord Atkin
Contract
The House considered the use of specialised dictionary definitions in explaining contract terms: “It is obvious that any such case would have to be carefully scrutinized by the Courts lest under the guise of providing a special “dictionary” the parties should be merely introducing inadmissible evidence as to the negotiations leading up to the contract.” Any construction of a written contract has to be approached by the Court first putting itself in the position of the parties to the contract.

 
Ronaasen and Son v Arcos Ltd [1933] UKHL 1; [1933] AC 470
2 Feb 1933
HL
Lord Buckmaster, Lord Blanesburgh, Lord Warrington of Clyffe, Lord Atkin, Lord Macmillan
Contract
A buyer may lawfully reject goods on the grounds of breach of condition, even though he did not know of the breach of condition at the time of the rejection; and the rejection will not be wrongful merely because he mistakenly alleged the breach of some other condition.
Where the contract contains a detailed description of the goods, minor discrepancies between the delivered goods and their description may entitle the purchaser to reject the goods.
Lord Atkin said: "If a condition is not performed the buyer has a right to reject. I do not myself think that there is any different between business men and laywers on this matter. No doubt, in business, men often find it unnecessary or inexpedient to insist on their strict legal rights. In a normal market if they get something substantially like the specified goods they may take them with or without grumbling and a claim for an allowance. But in a falling market I find that buyers are often as eager to insist on their legal rights as courts of law are ready to maintain them."
[ Bailii ]
 
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
1 Mar 1933

Dixon J
Commonwealth, Contract
(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."
1 Citers

[ Austlii ]

 
 Harmer v Armstrong; CA 1934 - [1934] Ch 65

 
 Doyle v White City Stadium Ltd; CA 1934 - [1935] 1 KB 110

 
 Foley v Classique Coaches Ltd; CA 1934 - [1934] 2 KB 1

 
 Mackenzie v Royal Bank of Canada; 1934 - (1934) AC 468
 
Revell v London General Insurance Co [1934] 50 Lloyd's Rep 114
1934

MacKinnon J
Contract, Insurance
MacKinnon J said: "if there is an ambiguity in this question so that upon one view of the reasonable meaning which is conveyed to the reasonable reader of it the answer was not false, the company cannot say that on the other meaning of the words the answer was untrue so as to invalidate the policy".
1 Citers



 
 L'Estrange v F Graucob Limited; CA 1934 - [1934] 2 KB 394; [1934] All ER 16

 
 Maple Flock Co v Universal Furniture Products (Wembley) Ltd; CA 1934 - [1934] 1 KB 148

 
 Cammell Laird and Co Ltd v Manganese Bronze and Brass Co Ltd; HL 1934 - [1934] AC 402

 
 British Motor Trust Co Ltd v Hyams; 1934 - (1934) 50 TLR 230
 
Inland Revenue Commissioners v Raphael and Ezra [1935] AC 96
1935
HL
Lord Wright
Contract, Landlord and Tenant
Parties to a contract should be presumed to have intended what in fact they have said.
The function of the recitals in a lease is to narrate the history leading up to the making of the lease.
Lord Wright said: " . . the principle of the common law has been to adopt an objective standard of construction and to exclude general evidence of actual intention of the parties; the reason for this has been that otherwise all certainty would be taken from the words in which the parties have recorded their agreement or their dispositions of property. If in some cases hardship or injustice may be effected by this rule of law, such hardship or injustice can generally be obviated by the power in equity to reform the contract, in proper cases and on proper evidence that there has been a real intention and a real mistake in expressing that intention: these matters may be established, as they generally are, by extrinsic evidence. The Court will thus reform or re-write the clauses in order to give effect to the real intention. But that is not construction, but rectification."
1 Citers



 
 Ebbw Vale Steel Co v Tew; CA 1935 - [1935] 79 SJ 593
 
Millar's Machinery Co Ltd v David Way and Son (1935) 40 Com Cas 204
1935
CA
Maugham LJ, Roche LJ
Contract, Damages
In a contract, the sellers stated: "We do not give any other guarantee and we do not accept responsibility for consequential damages." Held: The purchaser recovered the deposit paid towards the price of a machine prior to delivery and also a further sum paid for the supply of a replacement machine at short notice: "On the question of damages, the word 'consequential' had come to mean 'not direct', but damages recovered by the Defendants on the Counterclaim arose directly from the Plaintiffs' breach of contract under section 51(2) of the Sale of Goods Act 1893." Roche LJ said: the damages recovered by the defendants on the counterclaim are not merely "consequential" but resulted directly and naturally from the plaintiffs' breach of contract.
The contract provided for the sellers that "We do not give any other guarantee and we do not accept responsibility for consequential damages." The machinery was not delivered on time and the purchaser sought recovery of his deposit. Held: The purchaser recovered his deposit together with a further sum he had paid for the supply of a replacement machine at short notice. The plaintiffs' right to recover those damages was unaffected by the wording of the contract. Maugham LJ said: "On the question of damages, the word 'consequential' had come to mean 'not direct', but damages recovered by the Defendants on the Counterclaim arose directly from the Plaintiffs' breach of contract under section 51(2) of the Sale of Goods Act 1893."
Roche LJ said that the damages recovered by the defendants on the counterclaim are not merely "consequential" but resulted directly and naturally from the plaintiffs' breach of contract.
Sale of Goods Act 1893 51(2)
1 Citers


 
Howard v Odhams Press [1935] 1 KB 1
1935
CA
Slesser LJ
Contract
The plaintiff claimed damages arising out of disclosure to his union of fraudulent activities in the defendant's competition department of which he had been a member, such disclosure being contrary to an agreement between the claimant and his employers. Held; The contract sued upon was invalid as being against public policy since as it purported to prevent the defendants from giving information to third parties which might assist them to secure the conviction of persons who had defrauded them in the past or to prevent commission of frauds against them in the future.
Slesser LJ said: "It may be said that the particular facts on which this agreement is said to be illegal are not those precisely of stifling a prosecution or compounding a crime; but the agreement would in my opinion have the necessary effect of restricting the opportunity which the defendants and others might otherwise possess to assist the authorities in the investigation of, and, if necessary, in the prosecution of the alleged crimes." He approved Lound and added "and a fortiori if they are criminal".
1 Cites

1 Citers


 
Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] UKPC 1; [1935] AC 524; [1935] UKPC 20
12 Apr 1935
PC
Atkin, Tomlin, MacMillan, Wright LL
Commonwealth, Contract
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not include this ship. The charterers claimed that the contract was frustrated. The Supreme Court of Canada had said that the contract remaned binding since the charterers had selected other ships to be licensed. Held: The decision to opt to licence other ships determined the appeal in favour of the owners. The loss of the St. Cuthbert's licence was correctly described, quoad the appellants as "a self induced frustration."
Lord Wright, referred to criticism of Krell v. Henry and said: "The authority is certainly not one to be extended: it is particularly difficult to apply where, as in the present case, the possibility of the event relied on as constituting a frustration of the adventure (here the failure to obtain a licence) was known to both parties when the contract was made, but the contract entered into was absolute in terms so far as concerned that known possibility. It may be asked whether in such cases there is any reason to throw the loss on those who have undertaken to place the thing or service for which the contract provides at the other party's disposal and are able and willing to do so."
1 Cites

1 Citers

[ Bailii ] - [ Bailii ]
 
Grant v Australian Knitting Mills [1935] All ER Rep 209; [1936] AC 85; 105 LJPC 6; 154 LT 185; [1935] UKPC 2; [1935] UKPC 62
21 Oct 1935
PC
Lord Wright
Personal Injury, Negligence, Commonwealth, Contract
(Australia) The Board considered how a duty of care may be established: "All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, essential in English law that the duty should be established; the mere fact that a man is injured by another's act gives in itself no cause of action. If the act is deliberate, the party injured will have no claim in law even though the injury was intentional so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists." and "the appellant is not required to lay his finger on the exact person in all the chain who was responsible, or specify what he did wrong. Negligence is found as a matter of inference from the existence of the defect taken in connection with all the known circumstances"
Lord Wright said: "Mr. Greene further contended on behalf of the manufacturers that if the decision in Donoghue's case [1932] AC 562, 591, were extended even a hair's-breadth, no line could be drawn, and a manufacturer's liability would be extended indefinitely. He put as an illustration the case of a foundry which had cast a rudder to be fitted on a liner: he assumed that it was fitted and the steamer sailed the seas for some years: but the rudder had a latent defect due to faulty and negligent casting, and one day it broke, with the result that the vessel was wrecked, with great loss of life and damage to property. He argued that if Donoghue's case were extended beyond its precise facts, the maker of the rudder would be held liable for damages of an indefinite amount, after an indefinite time, and to claimants indeterminate until the event. But it is clear that such a state of things would involve many considerations far removed from the simple facts of this case. So many contingencies must have intervened between the lack of care on the part of the makers and the casualty that it may be that the law would apply, as it does in proper cases, not always according to strict logic, the rule that cause and effect must not be too remote: in any case the element of directness would obviously be lacking. Lord Atkin deals with that sort of question in Donoghue's case where he refers to Earl v. Lubbock [1905] 1 K.B. 253, 259: he quotes the commonsense opinion of Mathew L.J.: 'It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on.'
In their Lordships' opinion it is enough for them to decide this case on its actual facts."
Lord Wright also said: "a thing is sold by description, though it is specific, so long as it is sold not merely as the specific thing, but as a thing corresponding to a description "
1 Citers

[ Bailii ] - [ Bailii ]

 
 Warmingtons v McMurray; 1936 - [1936] 2 All ER 745

 
 Shipley Urban District Council v Bradford Corporation; ChD 1936 - [1936] Ch 375

 
 With v O'Flanagan; CA 1936 - [1936] Ch 575; [1936] 1 All ER 727
 
Imperial Tobacco Company (of Great Britain) and Ireland v Parslay [1936] 2 All ER 515
1936
CA
Lord Wright MR
Contract
Lord Wright MR said: "A millionaire may enter into a contract in which he is to pay liquidated damages, or a poor man may enter into a similar contract with a millionaire, but in each case the question is exactly the same, namely, whether the sum stipulated as damages for the breach was exorbitant or extravagant . ."
1 Citers



 
 Alexander v Rayson; CA 1936 - (1936) 1 KB 169

 
 Laythoarp v Bryant; 30-Apr-1936 - [1836] 3 Scott 238; [1836] EngR 652; (1836) 2 Bing NC 735; (1836) 132 ER 283
 
Clayton v Clayton 1937 SC 619
1937


Contract
It was alleged that the pursuers and the defender had clubbed together to buy a ticket in an Irish lottery. The ticket was bought in the name of the defender, and a sum of money was won. The action was brought to compel him to share the winnings with the pursuers. The parties were alive to the issue of sponsio ludicra, and it was conceded that the obligation to buy the ticket might have been unenforceable on that ground; but neither the parties nor the court raised any question as to whether the obligation to share the winnings might also be unenforceable on that ground.
1 Citers


 
A/S Rendal v Arcos Ltd (1937) 43 Com Cas 1; (1937) 58 LLR 287
1937
HL
Lord Wright, Lord Maugham
Contract

1 Citers


 
White v Bijou Mansions [1937] Ch 610
1937
ChD
Simonds J
Contract, Land
The court heard an argument that section 56 of the 1925 Act had not changed the law to allow a third party to sue under a covenant to which he had not been party. Held: Simonds J rejected an argument that section 56 enabled anyone to take advantage of a covenant if he could shew that if the covenant were enforced it would redound to his advantage: "Just as under section 5 of the Act of 1845 only that person could call it in aid who, although not a party, was yet a grantee or covenantee, so under section 56 of this Act only that person can call it in aid who although not named as a party to the conveyance or other instrument is yet a person to whom that conveyance or other instrument purports to grant something or with which some agreement or covenant is purported to be made."
Law of Propety Act 1925 56
1 Citers


 
Trade Indemnity Co Ltd v Workington Harbour and Dock Board [1937] AC 1
1937
HL
Lord Atkin
Banking, Contract
The House held that a loan of £45,000 made by a building owner to a building contractor did not constitute an agreement "for any alteration in or to" the building contract which the company had guaranteed. The question was whether it was "within the general purview of the original guarantee". Lord Atkin also said: "My Lords, both actions were brought on the money bond." - That is the first and second actions. - "It is well established that in such an action the plaintiff has to establish damages occasioned by the breach or breaches of the conditions, and, if he succeeds, he recovers judgment on the whole amount of the bond, but can only issue execution for the amount of the damages proved."
1 Citers


 
Mutual Finance Ltd v John Wetton and Sons Ltd [1937] 2 KB 389; [1937] 2 All ER 657
1937

Porter J
Contract, Undue Influence
A relative of a forger gave a guarantee in circumstances where the forger had been threatened with prosecution. He now pleaded economic duress. Held: The guarantee should be set aside. The court considered the distinction between dures and undue influence. Porter J said: "Not only is no direct threat necessary, but no promise need be given to abstain from a prosecution. It is enough if the undertaking was given owing to a desire to prevent prosecution and that desire were known to those to whom the undertaking was given. In such a case one may imply (as I do here) a term in the contract that no prosecution should take place . . A threat made by a party to a contract may be illegitimate when coupled with a demand for payment even where the threat is one an action which would otherwise be lawful."
The line between permissible forms of persuasion and undue influence is ultimately regulated by considerations of public policy.
1 Citers


 
Thorne v Motor Trade Association [1937] AC 797; [1937] 3 All ER 157
1937
HL
Lord Atkin, Lord Wright
Torts - Other, Contract
The House confirmed a declaration granted as to validity of a rule of association notwithstanding the absence of any dispute. The House considered the nature of the threat required to establish a defence of duress.
Lord Wright observed that the word 'menaces' is to be liberally construed and is not limited to threats of violence, but includes threats of any action detrimental, or unpleasant, to the person addressed. It may also include a warning that in certain events such action is intended.
Lord Atkin said: "The ordinary blackmailer normally threatens to do what he has a perfect right to do - namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure, as of a felony, to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something a person is entitled to do either causes the threat not to be a 'menace' within the Act or in itself provides a reasonable or probable cause for the demand."
and "It appears to me that if a man may lawfully, in the furtherance of business interests, do acts which will seriously injure another in his business he may also lawfully, if he is still acting in furtherance of his business interests, offer that other to accept a sum of money as an alternative to doing the injurious acts. He must no doubt be acting not for the mere purpose of putting money in his pocket, but for some legitimate purpose other than the mere acquisition of money."
In this case "If the Council bona fide exercised this power with the bona fide intention only of carrying out this trade policy, in my opinion they would not be demanding the payment without reasonable and probable cause." but "It is plain that these rules and any similar rules of any other association in any other trade are capable of being abused: and if so nothing in this decision will prevent offenders from being subjected to criminal law. But if the rules were genuinely enforced I am satisfied that there would not be as in my opinion in Denyer's case [1926] 2 KB 258 there was not, any evidence of an absence of reasonable or probable cause."
Larceny Act 1916 29(1)
1 Citers


 
Way v Latilla [1937] 3 All ER 759
1937
HL
Lord Atkin, Lord Wright
Contract, Damages
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. In return, he was promised a share. W returned and acquired concessions. They agreed his reward would be decided on returning, and L promised W a substantial interest in his new Trust copany. They agreed no amount, but only that he should receive a share of the concessions. W now sought his remuneration. At trial he was awarded £30,000 on the basis of a contract between the parties. The court of appeal disagreed and held that no contract was made. Held: There was no concluded contract, and the court could not complete one for the parties but that W was entitled to remuneration on a quantum meruit. The question was the amount of the award. The CA said, applyig evidence from consulting mining engineers, that the proper award was a fee of £600.
Lord Atkin said that the CA decision ignored the real business position, and that the award was to be fixed by reference to the approach to remuneration adopted by the parties: "My Lords, this decision appears to me to ignore the real business position. Services of this kind are no doubt usually the subject of an express contract as to remuneration, which may take the form of a fee, but may also take the form of a commission share of profits, or share of proceeds calculated at a percentage, or on some other basis. In the present case, there was no question of fee between the parties from beginning to end. On the contrary, the parties had discussed remuneration on the footing of what may loosely be called a "participation," and nothing else. The reference is analogous to the well known distinction between salary and commission. There are many employments the remuneration of which is, by trade usage, invariably fixed on a commission basis. In such cases, if the amount of the commission has not been finally agreed, the quantum meruit would be fixed after taking into account what would be a reasonable commission, in the circumstances, and fixing a sum accordingly. This has been an everyday practice in the courts for years. But, if no trade usage assists the court as to the amount of the commission, it appears to me clear that the court may take into account the bargainings between the parties, not with a view to completing the bargain for them, but as evidence of the value which each of them puts upon the services. If the discussion had ranged between 3 per cent on the one side and 5 per cent on the other, all else being agreed, the court would not be likely to depart from somewhere about those figures, and would be wrong in ignoring them altogether and fixing remuneration on an entirely different basis, upon which, possibly, the services would never have been rendered at all. That, in fixing a salary basis, the court may pay regard to the previous conversation of the parties was decided by the Court of Exchequer in 1869, in Scarisbrick v Parkinson, where the terms of an agreement, invalid under the Statute of Frauds, were held to be admissible as evidence in a quantum meruit. This seems to me to be good law, and to give effect to a principle which has been adopted regularly by the courts not only in fixing remuneration for services but also in fixing prices, sums due for use and occupation, and, indeed, in all cases where the court has to determine what is a reasonable reward for the consideration given by the claimant. As I have said, the rule applied in fixing the amount of the remuneration necessarily applies to the basis on which the amount is to be fixed. I have therefore no hesitation in saying that the basis of remuneration by fee should, in this case, on the evidence of the parties themselves, be rejected, and that Mr Way is entitled to a sum to be calculated on the basis of some reasonable participation." He fixed the award at £5,000.
Lord Wright said that the court had to do its best to arrive at a figure which was fair and reasonable to both parties on all the facts of the case. He continued: "One aspect of the facts to be considered is found in the communings of the parties while the business was going on. Evidence of this nature is admissible to show what the parties had in mind, however indeterminately, with regard to the basis of remuneration. On those facts, the court may be able to infer, or attribute to the parties, an intention that a certain basis of payment should apply. This evidence seems to me to show quite clearly that the appellant was employed on the basis of receiving a remuneration depending on results. If he had been unsuccessful, he would have been entitled to no more than his expenses, but the respondent had led him to believe that, if the concessions he obtained were valuable, his remuneration would be on the basis of some proportion of their value." and "While it is not unknown that such services should be remunerated by a fee if it is expressly or impliedly so agreed, this is by no means necessarily, and would not generally be, the case. The idea of such a fee being excluded, it follows that the question of the amount to which the appellant is entitled is left at large, and the court must do the best it can to arrive at a figure which seems to it fair and reasonable to both parties, on all the facts of the case. One aspect of the facts to be considered is found in the communings of the parties while the business was going on. Evidence of this nature is admissible to show what the parties had in mind, however indeterminately, with regard to the basis of remuneration. On those facts, the court may be able to infer, or attribute to the parties, an intention that a certain basis of payment should apply."
1 Citers



 
 Morgan v Ashcroft; CA 1937 - [1938] 1 KB 49; [1937] 3 All ER 92
 
Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52
11 Jun 1937

Dixon J, Latham CJ
Wills and Probate, Contract, Trusts, Equity
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as "a trust which is declared by the law to affect the conscience of [the survivor's] executor and of the volunteers who are devisees or legatees under his will." and "Those who undertake to establish such an agreement [ie of mutual wills] assume a heavy burden of proof".
Dixon J set down the principles for mutual wills: "It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.”
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[ Austlii ]
 
Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] 2 All ER 788
1938

Atkinson J.
Damages, Contract
Aerial advertising ("Eat Bachelors Peas") took place during Armistice Day services. Held: The court was careful to confine damages to the financial loss flowing from public boycotting of the defendant's goods and to exclude damages for loss of reputation.

 
Associated Distributors Ltd v Hall [1938] 2 KB 83
1938
CA

Contract
The common law doctrine of penalty is inapplicable where the triggering event is not a breach of contract.
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Robertson v Balfour 1938 SC 207
1938

Aitchison
Scotland, Contract
The rule against enforcing a gaming contract is so clear that the Court will not take cognizance of a supervening contract which is subsidiary to, and flows from, the original gaming contract. The court distinguished these contracts from, this case where the contract was not purely collateral or incidental to the gaming contract.
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White v Bijou Mansions [1938] Ch 351
1938
CA
Sir W Greene MR
Contract, Land
The court heard an rejected an argument that s56 worked to allow a third party to sue under a covenant to which he had not been party: "before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to the true construction of the document in question." (Sir W Greene MR)
Law of Property Act 1925 56
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In re Foster [1938] 159 LT 279
1938


Contract

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Radio Pictures v Commissioners of Inland Revenue [1938] 22 TC 106
1938
ChD
Lawrence J
Income Tax, Contract
The court considered whether a particular document could properly be included among the batch of documents which as a whole formed the contract, so that the stipulations therein were themselves contractual.
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Mussen v Van Diemen's Land Company [1938] Ch 253
1938
ChD
Farwell J
Land, Contract
Land was to be sold in stages to the purchaser. Held: Specific performance, with or without compensation, would be ordered at the suit of a purchaser wherever possible, so long as he was able and willing to complete. Farwell J said : "There are no doubt cases where there has been a failure to pay the instalments and to complete the contract, and the purchaser has then come forward and said: 'I am here and now ready and willing to complete the contract and to pay the price originally stipulated by the contract and to carry out its terms,' and then the Court has said that it is inequitable and against conscience that the vendor should refuse specific performance and claim to retain the money already paid. That is because the Court has said that if the plaintiff is willing to carry out his contract, notwithstanding the fact that temporarily at any rate he was unable to do so, if he is willing and able to carry out his contract, it being the primary intention of the parties that the sale should take place, it would be against conscience for the defendant to say: 'I will not give effect to the primary intention of the parties, but I will refuse to complete, and I will retain the money which has been paid to me.'"
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Greer v Kettle [1938] AC 156; 158 LT 433
1938
HL
Lord Maugham, Lord Russell of Killowen
Contract, Estoppel, Equity
A corporate borrower agreed to repay £250,000 with interest and to charge certain specified shares in another company as security. A guarantee was procured from another company, Parent Trust. The deed of guarantee recited that the lender had made the advance to the borrower "on the security of a charge dated March 1929 on the shares, particulars of which are set out in the schedule hereto". Held: Recitals may also give rise to an estoppel in respect of specific facts stated and adopted as the basis of a transaction, provided that the facts as stated are "certain, clear and unambiguous". However, Parent Trust had never become liable under the guarantee because a charge had never in fact been given over the shares. Where a person guaranteed a loan which was expressed to be secured by a charge on certain shares, and the shares had not been validly issued, it was held that the surety was not liable.
Lord Killowen explained: "the legal rights and liabilities of these parties depend upon the true construction and effect of the agreement of guarantee . . Once it is realized that the debt which Parent Trust are undertaking to guarantee is a debt described as a debt the repayment of which by the principal debtor is secured by a charge on (amongst other shares) the 275,000 shares in Iron Industries, Ld, the case (apart from the question of estoppel, to which I will refer) becomes in my opinion a simple one . . It is not a case, as Bennett J seems to have treated it, of seeking to imply a condition, the implication of which is alleged to be inconsistent with other provisions in the document. In other words, as Romer LJ said, it is not a case of Parent Trust being released from a contractual engagement. It is a case of an attempt to impose upon them a liability which they have never undertaken. The only debt, the repayment of which by the principal debtor they undertook to guarantee, was a debt secured by a charge on the 275,000 shares in Iron Industries, Ld, and a debt so secured never in fact existed. The language of Knight Bruce LJ in Evans v Bremridge (i) may well be applied to the present litigants. In that case it was sought to make a surety liable who became a surety on the footing that a co-surety would join in the covenant with him. The co-surety had not done so, and the surety was held to be under no liability. As the Lord Justice truly said: "The defendants seek to charge the plaintiff with "a contract, into which he did not enter."
Lord Maugham referred to the qualification imposed by equity on the doctrine of estoppel by deed: "The position in equity is and was always different in this respect, that where there are proper grounds for rectifying a deed, e.g., because it is based upon a common mistake of fact, then to the extent of the rectification there can plainly be no estoppel based on the original form of the instrument. It is at least equally clear that in equity a party to a deed could not set up an estoppel in reliance on a deed in relation to which there is an equitable right to rescission or in reliance on an untrue statement of an untrue recital induced by his own representation, whether innocent or otherwise, to the other party. Authority is scarcely needed for so clear a consequence of a rectification order or an admitted or proved right to such an order. The well known rule of the Chancery Courts in regard to a receipt clause in a deed not effecting an estoppel if the money has not in fact been paid is a good illustration of the equity view . . "
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Re Chetwynd's Estate [1938] Ch 13
1938
CA
Greene MR
Contract
A liability arose on a joint and several promissory note, where it was clear that one of the two parties (C) was the principal debtor and the other (S) was, as between them, in the position of a guarantor. The note did not comply with the 1927 Act. Unaware of this, S paid what C had failed to pay, and claimed that amount from C's estate after his death. The defendant sought to avoid liability because of the non-compliance with the 1927 Act, arguing against S that C's implicit request to him was not "Please pay if I do not" but rather "Please pay whatever sum, if any, I am liable to pay under the contract, but do not pay". Held: The argument was rejected: "the simple implication which arises here is a request by [C] to pay if he, [C], does not pay".
Moneylenders Act 1927
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W J Tatem Ltd v Gamboa [1939] 1 KB 132
1939

Goddard J
Contract
The court considered a charterparty of one month's duration, at a very high rate of freight, limited to trade from the northern ports in the hands of the Republican Government of Spain to ports in France and which made plain that the specific purpose of the charter was the evacuation of the civil population from North Spain. After the completion of only one voyage, the ship was seized by the Nationalists and no more could be done with it. Held: It was clear that the foundation of the contract had been destroyed as soon as the vessel was seized - because the charterer was unable to make use of it or return it to the owners. The contract was frustrated from that time.
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 Shirlaw v Southern Foundries (1926) Ltd; CA 1939 - [1939] 2 KB 206; [1940] AC 701; [1940] 2 All ER 445

 
 Spence v Crawford; HL 1939 - [1939] 3 All ER 271; [1939] SC (HL) 52
 
Philippson v Imperial Airways Ltd [1939] AC 332
1939
HL

International, Contract
Where parties have entered into a domestic contract in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties under their contract.
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 Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Company Limited; CA 1939 - [1939] 2 KB 544
 
Groom v Crocker [1939] 1 KB 194
1939


Legal Professions, Contract, Professional Negligence
An action by a client against a solicitor alleging negligence in the conduct of the client's affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he did quite ineffective.
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 Hartog v Colin and Shields; 1939 - [1939] 3 All ER 566

 
 Sowler v Potter; 1939 - [1939] 4 All ER 478; [1940] 1 KB 271; 162 LT 12; 56 TLR 142; 84 Sol Jo 115

 
 Dies v British and International Mining and Finance Corporation Ltd; 1939 - [1939] 1 KB 724
 
Crane v Hegeman-Harris Co Inc [1939] 1 All ER 662
1939
ChD
Simonds J
Equity, Contract
A continuing common intention of the parties to a document alone will not suffice to justify rectification. For rectification to be appropriate, there must be convincing proof that the concluded instrument does not represent the common intention of the parties. Where there has been prolonged negotiations resulting in a formal instrument, with parties having their own legal advisors, there is a strong assumption that the instrument represents their real intention.
Simonds J said: "Before I consider the facts and come to a conclusion whether the defendants are right in their contention, it is necessary to say a few words upon the principles which must guide me in this matter. I am clear that I must follow the decision of Clauson J, as he then was, in Shipley Urban District Council v. Bradford Corpn, the point of which is that, in order that this court may exercise its jurisdiction to rectify a written instrument, it is not necessary to find a concluded and binding contract between the parties antecedent to the agreement which it is sought to rectify. The judge held, and I respectfully concur with his reasoning and his conclusion, that it is sufficient to find a common continuing intention in regard to a particular provision or aspect of the agreement. If one finds that, in regard to a particular point, the parties were in agreement up to the moment when they executed their formal instrument, and the formal instrument does not conform with that common agreement, then this court has jurisdiction to rectify, although it may be that there was, until the formal instrument was executed, no concluded and binding contract between the parties. That is what the judge decided, and, as I say, with his reasoning I wholly concur, and I can add nothing to his authority in the matter, except that I would say that, if it were not so, it would be a strange thing, for the result would be that two parties binding themselves by mistake to which each had equally contributed, by an instrument which did not express their real intention, would yet be bound by it. That is a state of affairs which I hold is not the law, and, until a higher court tells me that it is the law, I shall continue to exercise the jurisdiction which Clauson J, as I think rightly, held might be entertained by this court.
Secondly, I want to say this upon the principle of the jurisdiction. It is a jurisdiction which is to be exercised only upon convincing proof that the concluded instrument does not represent the common intention of the parties. That is particularly the case where one finds prolonged negotiations between the parties eventually assuming the shape of a formal instrument in which they have been advised by their respective skilled legal advisers. The assumption is very strong in such a case that the instrument does represent their real intention, and it must be only upon proof which Lord Eldon, I think, in a somewhat picturesque phrase described as "irrefragable" that the court can act. I would rather, I think, say that the court can only act if it is satisfied beyond all reasonable doubt that the instrument does not represent their common intention, and is further satisfied as to what their common intention was. For let it be clear that it is not sufficient to show that the written instrument does not represent their common intention unless positively also one can show what their common intention was. It is in the light of those principles that I must examine the facts of this somewhat complicated case."
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Wallington v Townsend [1939] 1 Ch 588
1939

Morton J
Damages, Land, Contract
Where a vendor of land failed to complete for reasons other than a defect in title and the purchaser was unable to prove a loss of profits he was entitled by way of damages, in addition to the return of the deposit, to interest in respect of the loss of use of the deposit and to the costs of approving and executing the contract, investigating title, preparing the conveyance and of searches.
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Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277; [1939] UKPC 7
30 Jan 1939
PC
Lord Wright
Contract, Jurisdiction
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, but the action was brought in Nova Scotia where the courts had to apply the proper law of the contract contained in its bill of lading - English law - by which the exemption clause was valid. Lord Wright: "But whatever view a Newfoundland Court might take, whether they would hold that the contracts contained in the bills of lading must be taken to have incorporated the Hague Rules or whether they would hold them to have been illegal, the result would be the same in the present case, where the action was brought not in a Newfoundland but in a Nova Scotian Court. It may be that, if suit were brought on these bills of lading in a Newfoundland Court, and the Court held they were illegal, the Court would refuse to give effect to them, on the basis that a Court is bound to obey the laws of its own Legislature or its own common law . . But it does not follow that any other Court could properly act in the same way. If it has before it a contract good by its own law or by the proper law of the contract, it will in proper cases give effect to the contract and ignore the foreign law."
Lord Wright said: "Each case has to be considered on its merits. Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds."
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[ Bailii ]
 
Unsworth v Elder Dempster Lines Ltd [1940] 1 KB 658; [1940] 1 All ER 362
1940
HL
Lord Sumner
Contract
Shippers of cargo on a chartered ship brought an action against the shipowners for damage caused to the cargo by bad stowage, for which the shipowners were responsible. The cargo was shipped under charterers' bills of lading, so that the contract of carriage contained in or evidenced by the bills of lading was between the shippers and the charterers. The shipowners sought to rely, as against the shippers, on an exception in the bill of lading which protected the charterers from liability for damage due to bad stowage. Held: The shipowners were entitled to do so. Lord Sumner: "in the circumstances of this case the obligations to be inferred from the reception of the cargo for carriage to the United Kingdom amount to a bailment upon terms, which include the exceptions and limitations of liability stipulated in the known and contemplated form of bill of lading."
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Kelly v Murphy 1940 SC 96
1940


Contract, Scotland
The court declined to enforce a contract as a wager where it involved determining the winner of a game or contest.

 
Ross T Smythe and Co v Bailey and Sons [1940] 3 All ER 60; (1940) 56 TLR 825
1940
HL
Lord Wright
Employment, Contract
Lord Wright said that repudiation of a contract is a serious matter not to be lightly found or inferred.
A party who intended to fulfil a contract but only in a manner substantially inconsistent with his obligations and not in any other way would have repudiated the contract
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 Shirlaw v Southern Foundries (1926) Ltd; HL 1940 - [1940] AC 701; [1940] 2 All ER 445

 
 Ross T Smyth and Co Ltd v Bailey Son and Co; HL 1940 - (1940) 56 TLR 825; [1940] 3 All ER 60
 
Saint Line Limited v Richardsons Westgarth and Co. [1940] 2 KB 99
1940

Atkinson J
Contract, Damages
A clause excluding liability for "any indirect or consequential damages or claims whatsoever". A claim was made for for loss of profit. Held: "What does one mean by 'direct damage'? Direct damage is that which flows naturally from the breach without other intervening causes and independently of special circumstances, while indirect damage does not so flow. The breach certainly has brought it about, but only because of some supervening event or some special circumstances unknown to the seller.
In my judgment, the words 'indirect or consequential' do not exclude liability for that which is prima facie recoverable; that is, do not exclude liability for damages which are the direct and natural result of breaches complained of."
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Kerr v John Mottram Ltd [1940] Ch 657
1940
ChD
Simonds J
Contract, Company
The court considered an application by a shareholder of a company to enforce an alleged contract for the sale of shares that he claimed were offered to him at a meeting of the company. The minutes of the company meeting did not support the plaintiff’s claim that the contract had been entered into by the shareholder. The plaintiff sought to rely on evidence that was inconsistent with the signed minutes of the meeting, but the Articles provided that the minutes of any meeting purporting to be signed by the chairman should be “conclusive evidence without any further proof of the facts therein stated”. The plaintiff argued that the evidence inconsistent with the minutes is admissible as the secretary may be wrong in his record of what occurred. The defendant argued the words “conclusive evidence” in the Articles of Association mean the minutes were evidence which could not be rebutted and were conclusive between the parties bound by the minutes. The defendant argued that any inconsistent evidence was nadmissible. Held: Simonds J stated: "Now, art. 114 which I have read represents the bargain between the shareholders as to what is to be, as between them, the value and effect of the minutes of the company as recorded in its minute book and signed by the chairman, and their bargain is that it is to ‘be conclusive evidence without any further proof of the facts therein stated.’ I have no doubt that the words ‘conclusive evidence’ mean what they say; that they are to be a bar to any evidence being tendered to show that the statements in the minutes are not correct." This was the "natural meaning" of the words, and: "That is to say, the minutes are to be regarded as evidence which is not to be displaced and is conclusive as between the parties who are bound by them."
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Scammell and Nephew Ltd v HJ and JG Ouston [1941] AC 251
1941
HL
Lord Wright
Contract
There was an agreement for a purchase on 'hire-purchase terms' It was challenged as being too uncertain. Held: There were many possible forms of such an agreement. The agreement was void for uncertainty. Lord Wright: "There are in my opinion two grounds on which the court ought to hold that there never was a contract. The first was that the language used was so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention. The object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard for all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract. Such a position is not often found. But I think it is found in this case. My reason for so thinking is not only based on the actual vagueness and unintelligibility of the words used, but is confirmed by the startling diversity of explanations, tendered by those who think there was a bargain, of what the bargain was. I do not think it would be right to hold the appellants to any particular version. It was all left too vague. There are many cases in the books of what are called illusory contracts, that is, where the parties may have thought they were making a contract but failed to arrive at a definite bargain. It is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give it a practical meaning. Its terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each party are reasonably certain. In my opinion that requirement was not satisfied in this case. . . But I think the other reason, which is that the parties never in intention nor even in appearance reached an agreement, is a still sounder reason against enforcing the claim. In truth, in my opinion, their agreement was inchoate and never got beyond negotiations."
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Foaminol Laboratories Ltd v British Artide Plastics Ltd [1941] 2 All ER 393
1941

Hallett J
Contract, Defamation, Damages
There is no justification for artificially excising from the damages recoverable for breach of contract that part of the financial loss which might or might not be the subject of a successful claim in defamation. A claim for mere loss of reputation is properly for an action for defamation, and cannot ordinarily be sustained by means of any other form of action, but if pecuniary loss can be established, the mere fact that the pecuniary loss is brought about by the loss of reputation caused by a breach of contract is not sufficient to preclude the plaintiffs from recovering in respect of that pecuniary loss.
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Leicester County Council v Michael Faraday and Partners [1941] 2 KB 205
1941
CA

Contract
The Court rejected a claim for production of all documents, books, maps and plans in possession of rating valuers who were employed by the County Council to give advice and held that the relationship of the County Council and the valuers was that of client and professional man and not that of principal and agent. Accordingly: "The documents which the valuers had prepared in carrying out their expert work on their own property; and that, as the agreement did not contain any provision requiring the valuers to hand over the documents to the plaintiffs, they were not bound to hand them over."
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 Luxor (Eastbourne) v Cooper; HL 1941 - [1941] AC 108
 
Holt v Heatherfield Trust [1942] 2 KB 1
1942


Contract
Consideration is not required to support a statutory assignment of a debt under section 136 of the 1925 Act and the lack of consideration does not need to be made good by deed.
Law of Property Act 1925 8136
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 In re Apex Supply Co Ltd; 1942 - [1942] Ch 108
 
Chandless-Chandless v Nicholson [1942] 2 KB 321
1942


Contract
Relief from forfeiture.
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 Steamship Line Ltd v Imperial Smelting Corporation Ltd; HL 1942 - [1942] AC 154
 
Booker v Palmer [1942] 2 All ER 674
1942
CA
Lord Greene MR
Contract
The owner of a cottage agreed to allow a friend to install an evacuee in the cottage rent free for the duration of the war. Held: There was no intention on the part of the owner to enter into legal relationships with the evacuee. Lord Greene MR said: 'To suggest there is an intention there to create a relationship of landlord and tenant appears to me to be quite impossible. There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. It seems to me that this is a clear example of the application of that rule.'
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Heyman v Darwins Limited [1942] AC 356; [1942] 1 All ER 337
1942
HL
Viscount Simon LC, Lord Wright, Lord Macmillan, Lord Russell of Killowen, Lord Porter
Insurance, Contract
An arbitration clause will survive a repudiatory breach: "I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of submission and the fact that no dispute had arisen on the only point submitted to arbitration."
If one party to a contract repudiates it and that repudiation is accepted, then "By that acceptance he is discharged from further performance and may bring an action for damages, but the contract itself is not rescinded." The primary obligations under the contract may come to an end, but secondary obligations then arise, among them being the obligation to compensate the innocent party. The original rights may not then be enforced. But a consequential right arises in the innocent party to obtain a remedy from the party who repudiated the contract for his failure in performance.
Lord Porter said that in differentiating between disputes "arising under" and "arising out of" the agreement, the former should be given a narrower meaning.
As to the right to rescind, he said: "The three sets of circumstances giving rise to a discharge of contract are tabulated by Anson as: (1) renunciation by a party of his liabilities under it; (2) impossibility created by his own act; and (3) total or partial failure of performance. In the case of the first two, the renunciation may occur or impossibility be created either before or at the time for performance. In the case of the third, it can occur only at the time or during the course of performance."
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Smith v Cox [1942] 2 KB 558
1942

Humphreys J
Contract, Landlord and Tenant
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 to obtain the rent, he distrained and recovered £180, which was the rent due, less deductions for repairs. The plaintiff sued for damages, contending that the distraint was unlawful because the rent had been paid by the defendant. He admitted that the rent was paid without his knowledge and not at his request. Held: The judge found for the defendant. There was no evidence that: "the defendant acted or purported to act or regarded himself as acting as the agent of the plaintiff. The view which I take of this transaction is that the defendant did no more than advance out of his own pocket to an elderly impecunious landlord money which he did not wish her to be without for any length of time and so he took the risk of recouping himself later on. That being so, this action must fail because it is based on the allegation that there was an illegal distress, on the ground that the plaintiff had paid his rent or that somebody had paid it for him." As between a tenant and a landlord, if a stranger or third person purported to make a discharge of rent, the landlord was entitled to reject the payment.
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Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32; [1942] UKHL 4
15 Jun 1942
HL
Lord Wright, Viscount Simon
Equity, Contract
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war. Held: Lord Wright restated in the English language the maxim 'nemo debet locupletari aliena jactura of the civil law: "It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution."
Viscount Salmon said: "when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise. If this were not so, there could never be any recovery of money, for failure of consideration, by the payer of the money in return for a promise of future performance, yet there are endless examples which show that money can be recovered, as for a complete failure of consideration, in cases where the promise was given but could not be fulfilled." and "In English law, an enforceable contract may be formed by an exchange of a promise for a promise, or by the exchange of a promise for an act . . . but when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise."
Viscount Simon LC said that: "In English law an enforceable contract may be formed by the exchange of a promise for a promise or by the exchange of a promise for an act . . but when one is considering the law of failure of consideration and the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise that is referred to as the consideration but the performance of the promise."
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[ Bailii ]
 
Leyland and Co v Cia Panamena Europea Navigacion [1943] 76 Ll LR 113
1943
CA
Goddard LJ
Contract
Goddard LJ said: "He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him to certify in accordance with the contract, nor did they appoint anyone else in his place" and "Equally, it seems to me, [the Employers] must appoint someone who is willing to perform the duty assigned to him by the contract. If he will not or cannot perform that duty, they must appoint someone who will. Here it is clear that Dr Telfer refused to perform the simple duty of certifying whether the work was properly done....because he took the view, and I will assume honestly, that the contract enabled and, indeed, required him to do something else . . He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him to certify in accordance with the contract, nor did they appoint anyone else in his place. It is no answer to them to say that they had misinterpreted the contract. It is often the case that a person is guilty of a breach of contract because he has placed a wrong construction on it, but that affords him no defence."
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Samuels v Davis [1943] K.B. 526
1943


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

1 Citers


 
Love v Norman Wright (Builders) Ltd [1944] 1 KB 484
1944


Contract, Taxes - Other
A buyer was under no liability to pay to the registered seller the purchase tax in addition to the agreed purchase price unless the contract so provided.
1 Citers



 
 James Macara v Barclay; CA 1944 - [1944] 2 All ER 31
 
Thompson v Park [1944] KB 408
1944

Goddard LJ
Contract, Landlord and Tenant
Goddard LJ rejected a submission regarding recovery of pssession after a forced entry, saying: "Having got back into the house, . . with strong hand and with multitude of people, he has established himself in the house, and he then says : "I ought not to have an injunction given against me to make me go out because I got back here . . and therefore, I want the status quo preserved." The status quo that could be preserved was the status quo that existed before these illegal and criminal acts on the part of the defendants. It is a strange argument to address to a court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and to say that that would be preserving the status quo and a good reason for not granting an injunction."
1 Citers


 
Denny, Mott and Dickson Ltd v James B Fraser and Co Ltd [1944] AC 265
1944

Lord Wright
Contract

1 Citers


 
Hugh Mack and Co Ltd v Burns and Laird Lines Ltd (1944) Ll L Rep 377
1944

Andrews LCJ
Commercial, Contract, Transport
The shipment was of men’s clothing carried pursuant to a consignment note and receipt stamped "Non-negotiable". The consignment note named consignees in Scotland and stated: "Please receive for forwarding per Burns and Laird Lines’ steamers the undernoted goods . ." These documents were retained by the shipper. The goods were damaged and the shipper claimed against the carrier, which relied on terms incorporated into its receipt. The shipper said that the Hague Rules applied by virtue of the 1924 Act. Held: The claim failed on two grounds. The consignment note and receipt was not a bill of lading or any similar document of title; and in any event the parties had freedom of contract under article VI as amended in the case of coastal trade within the British Isles and Ireland by section 4 of the 1924 Act. The receipt, even if properly described as a "document of title," was not "similar to" a bill of lading. It had none of its characteristics, being different in form; given at a different time; bearing no stamp; does not acknowledge the goods to be on board any particular ship; it was retained by the consignor, not sent to the consignee; and above all, it was not a negotiable instrument, the indorsement and delivery of which could affect the property in the goods shipped.
1 Citers


 
James B Fraser and Co Ltd v Denny, Mott and Dickson Ltd [1944] UKHL 3; 1945 SLT 2; [1944] AC 265; 1944 SC (HL) 35
19 May 1944
HL

Contract
The House was asked whether a contract, entered into before the war, has been brought to a premature conclusion by war regulations which render illegal, and therefore prevent, the due performance of some of the obligations or the due enjoyment of some of the rights under the contract.
1 Cites

[ Bailii ]
 
Phillips v Rogers [1945] 2 WWR 53
1945


Commonwealth, Limitation, Contract
The creditor argued that the limitation period was extended anew when the debtor wrote: "Re your correspondence re Mr C H Phillips claim $1300 which he is prepared to settle November 1st for $700. Please thank Mr Phillips for the kind offer. I have no idea where I am going to get $700 and meet your demands by November 1st unless I rob a bank and I really don't think a case of this kind warrants such drastic action on my part. If Mr Phillips or yourself have any ideas how I can get that amount of money, honestly I shall be pleased to consider them."
1 Citers



 
 Alderslade v Hendon Laundry Ltd; CA 1945 - [1945] KB 189
 
Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65
1945
CA
du Parq LJ
Equity, Contract, Torts - Other
An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal contract pursuant to which it had hired the goods to the defendant. A party to an illegality can recover by virtue of a legal or equitable property interest if, but only if, he can establish his title without relying on his own illegality. The court stated the general rule that a man's right to possession of an article will be enforced notwithstanding the fact that the article came into his possession by reason of an illegal contract. "a man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, . . has converted them to his own use, even though it may appear from the pleadings, or in the course of the trial, that the chattels in question came into the defendant’s possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim." and "It must not be supposed that the general rule which we have stated is subject to no exception. Indeed there is one obvious exception, namely that class of cases in which goods claimed are of such a kind that it is unlawful to deal in them at all, as for example, obscene books. No doubt there are others, but it is unnecessary, and would we think be unwise, to seek to name them all or to forecast the decisions which would be given in a variety of circumstances which may hereafter arise".
1 Cites

1 Citers


 
Plaimar Ltd v Waters Trading Co Ltd (1945) 72 CLR 304; [1945] HCA 34
23 Nov 1945

Rich, Dixon and McTiernan JJ
Contract
(High Court of Australia) it was wrong for judgment to be given for the price because "[t]he contract did not provide for payment for the goods on a day certain."
1 Citers

[ Austlii ]
 
Johnson v Humphrey [1946] 1 All ER 460
1946


Land, Contract
The open contract for the sale of land was held to be unenforceable because the memorandum relied upon omitted any reference to a term that vacant possession was not to be given until the vendor could make suitable arrangements for herself and her furniture.
Under an open contract for the sale of land, completion must take place within a reasonable time. What is a reasonable time has to be measured by the legal business which has to be performed in connection with the investigation of title and the preparation of the necessary conveyancing documents.

 
Cumberland Consolidated Holdings Limited v Ireland [1946] KB 264; [1946] 1 All ER 284
1946
CA
Lord Greene MR
Contract, Land
A vendor of a warehouse left in the cellars of a warehouse rubbish including bags of hardened cement which would be difficult to remove, and which affected the value of the property and precluded the proper use of the cellar. The buyer complained that he had not been given vacant possession as agreed under the contract. Held: He had not been given vacant possession. Lord Greene MR said: "But it appears to us that what he bargains for is not merely the right in law, but the power in fact to exercise the right. When we speak of a physical impediment we do not mean that any physical impediment will do. It must be an impediment which substantially prevents or interferes with the enjoyment of the right of possession of a substantial part of the property."
1 Citers


 
In re Miller's Agreement, Uniacke v Attorney-General [1941] 1 Ch 615
1947
ChD
Wynn-Parry J
Contract, Inheritance Tax
Two partners had covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue claimed estate duty. Held: The claim was rejected. The daughters were not parties to the agreement, and had no right to sue for their annuities. Whether they received them or not depended on whether the other partners were willing to pay or if they did not pay whether the deceased partner's executor was willing to enforce the contract. After citing the earlier cases Wynn-Parry J. said: "I think it emerges from these cases that the section has not the effect of creating rights but only of assisting the protection of rights shewn to exist."
Law of Property Act 1925 56
1 Cites

1 Citers



 
 Central London Property Trust Ltd v High Trees House Ltd; KBD 1947 - [1947] 1 KB 130; [1956] 1 All ER 256; [1947] LJR 77; [1947] 175 LT 332; [1947] 62 TLR 557

 
 Winter Garden Theatre (London) Ltd v Millennium Productions Ltd; HL 1947 - [1947] 2 All ER 381; [1948] AC 173; [1947] LJR 1422; (1947) 91 Sol Jo 504
 
Eccles v Bryant and Pollock [1948] Ch 93; [1947] 2 All ER 865
1947
CA
Lord Greene MR, Cohen and Asquith LJJ
Landlord and Tenant, Contract, Legal Professions, Agency
The Plaintiff contended that a letter written by the purchaser's solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the vendor, created a binding contract between the parties. Held: Negotiations 'subject to contract' for the grant of a lease remain in a state of negotiation until exchange of lease and counter-part.
Letters written by solicitors, acting as solicitors relating to a proposed grant of a lease, or related to a proposed acquisition of property by sale, are letters written by agents of the parties who have no authority to conclude a contract; they are not written by agents within whose ostensible authority there lies the function of making a contract. Once the documents had been exchanged however, the parties would be bound.
Lord Greene MR said: "One thing is quite clear on the facts of this case to my mind, that both firms of solicitors, one of whom - that is the vendors' solicitors - practised in East Grinstead and the other of whom, the purchaser's solicitors, practised in London, when they were instructed to carry this matter through by their respective clients, contemplated and intended from beginning to end to do so in the customary way which is familiar to every firm of solicitors in the country, namely, by preparing the engrossment of the draft contract when agreed in duplicate, the intention being to do what I have no doubt at this very moment is happening in dozens of solicitors' offices all over the country, namely, to exchange the two parts when signed by their respective clients." and
"When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties express or implied. In such a contract as this, there is a well-known, common and customary method of dealing; namely, by exchange, and anyone who contemplates that method of dealing cannot contemplate the coming into existence of a binding contract before the exchange takes place.
Lord Greene MR continued: "It was argued that exchange is a mere matter of machinery, having in itself no particular importance and no particular significance. So far as significance is concerned, it appears to me that not only is it not right to say of exchange that it has no significance, but it is the crucial and vital fact which brings the contract into existence. As for importance, it is of the greatest importance, and that is why in past ages this procedure came to be recognised by everybody to be the proper procedure and was adopted. When you are dealing with contracts for the sale of land, it is of the greatest importance to the vendor that he should have a document signed by the purchaser, and to the purchaser that he should have a document signed by the vendor. It is of the greatest importance that there should be no dispute whether a contract had or had not been made and that there should be no dispute as to the terms of it. This particular procedure of exchange ensures that none of those difficulties will arise. Each party has got what is a document of title, because directly a contract in writing relating to land is entered into, it is a document of title. That can be illustrated, of course, by remembering the simple case where a purchaser makes a sub-sale. The contract is a vital document for the purpose of the sub-sale. If he had not got the vendor's part, signed by the vendor, to show to the sub-purchaser, he would not be able to make a good title. "If the argument for the purchaser is right and the contract comes into existence before exchange takes place, it would mean that neither party could call upon the other to hand over his part. The non-exchanged part would remain the property of the party who signed it, because exchange would be no element in the contract at all and therefore you could get this position, that the purchaser might wish to resell and would have no right to obtain from the vendor the vendor's signed part."
1 Citers


 
Woolf v Collis Removal Service [1948] 1 KB 11; [1947] 2 All ER 260
1947
CA
Ackner LJ
Contract
Claims in tort with a nexus to the contract can be within phrases such as "in connection with" in the context of arbitration clauses
1 Citers



 
 Branca v Cabarro; CA 1947 - [1947] KB 857
 
Couchman v Hill [1947] 1 KB 554
1947
CA
Scott, Tucker, Bucknill LJJ
Contract
The plaintiff purchased from the defendant at auction a heifer which was described in the sale catalogue as "unserved". Later, having been found to be in calf, she died as a result of carrying it at too young an age. Held: the description of the heifer as unserved constituted a condition of the contract.
Scott LJ said: "as a matter of law, I think every item in a description which constitutes a substantial ingredient in the 'identity' of the thing sold is a condition"
1 Citers


 
Joseph Travers and Sons Ltd v Longel Ltd (1947) 64 TLR 150
1947

Sellers J
Contract
It being found that the plaintiff buyer had not relied on the inaccurate descriptive name for boots purchased, the sale was not one by description.
Sale of Goods Act 1893 13
1 Citers


 
Thompson v McCullough [1947] 1 KB 447
1947
CA
Morton, Bucknill and Asquith LJJ
Land, Contract
Thompson had agreed to buy a tenanted property, had paid part of the purchase price, and had received a conveyance in escrow pending payment of the balance. He at that point gave McCullough notice to quit. Two months later Thompson paid the balance of the purchase money. Held: The court considered what would constitute delivery of an agreement in escrow. Morton LJ said: "The question of whether a document is delivered as an escrow or as a deed is in general one of fact, and I think that the following passage from Norton on Deeds . . accurately states the law: "Whether the document was delivered as an escrow or as a deed is a question of what the parties intended, and that intention may appear either from their statements or the circumstances." The learned author then quotes the following observation of Parke B. in Bowker v Burdekin (1843) 11 M&W 128 at 147: "you are to look at all the facts attending the execution, to all that took place at the time, and to the result of the transaction; and therefore, though it is in form an absolute delivery, if it can reasonably be inferred that it was delivered not to take effect as a deed till a certain condition was performed, it will nevertheless operate as an escrow." The author goes on: "thus the delivery of a transfer of mortgage was held to be in escrow until the mortgage money had been paid . . and of a conveyance until the purchase money has been paid . . The circumstances relied upon to show delivery as an escrow must be prior to or contemporaneous with, not subsequent to, the delivery.
Evidence is, of course, admissible as to what were the circumstances attending the delivery . . and the question is in general one of fact for the jury."
The notice to quit was invalid because the fee simple was not effectively vested in the giver of the notice: and satisfaction of the condition of the escrow could not retrospectively validate that notice.
1 Cites

1 Citers


 
Bracha Ben Ya'Acov and Others v Joseph Forer [1948] UKPC 50; [1948] UKPC 57
11 May 1948
PC

Commonwealth, Land, Contract
Palestine - The Board was asked whether certain contracts for the sale of some flats were valid in law.
[ Bailii ] - [ Bailii ]
 
Philco Radio v Spurling [1949] All ER 882
1949


Contract

1 Citers



 
 Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B; HL 1949 - [1949] AC 196; [1948] UKHL 1; 65 TLR 217; 1949 SC (HL) 1; [1949] AC 196; 1949 SLT 51; (1948-49) 82 Ll L Rep 137; [1949] LJR 772; [1949] 1 All ER 1

 
 British Motor Trade Association v Salvadori; 1949 - [1949] Ch 556
 
Olley v Marlborough Court [1949] 1 KB 532; [1949] 1 All ER 127
1949
CA
Denning LJ
Contract
The plaintiff hired a hotel bedroom. It was found that the contract between the party hiring the bedroom and the hotel was made before the guest had access to the bedroom. In the hotel bedroom, there was a notice which sought to limit the hotel's liability in respect of valuables that had not been deposited with the hotel. Mrs Olley found that furs and jewellery and other items were missing from her bedroom at a later stage during the course of her stay. The hotel tried to restrict its liability in respect of the loss by reliance on the notice in the plaintiff's bedroom. Held: She succeeded. A standard contract, which imposes terms on a party and purports to reduce liability on a contracting party, must be communicated to the other party and the circumstances must show an intention to be bound by it.
Denning LJ said: "Now people who rely on a contract to exempt themselves from their common law liability must prove that contract strictly. Not only must the terms of the contract be clearly proved, but also the intention to create legal relations - the intention to be legally bound - must also be clearly proved. The best way of proving it is by a written document signed by the party to be bound. Another way is by handing him before or at the time of the contract a written notice specifying its terms and making it clear to him that the contract is on those terms. A prominent public notice which is plain for him to see when he makes the contract or an express oral stipulation would, no doubt, have the same effect. But nothing short of one of these three ways will suffice . . So, also, in my opinion, notices put up in bedrooms do not of themselves make a contract. As a rule, the guest does not see them until after he has been accepted as a guest. The hotel company no doubt hope that the guest will be held bound by them, but the hope is vain unless they clearly show that he agreed to be bound by them, which is rarely the case."
and "Ample content can be given to the notice by construing it as a warning that the hotel company is not liable, in the absence of negligence, As such it serves a useful purpose. It is a warning to the guest that he must do his part to take care of his things himself, and, if needs be, ensure them. It is unnecessary to go further and to construe the notice as a contractual exemption of the hotel company from their common law liability for negligence."
1 Citers



 
 L Albert and Son v Armstrong Rubber Co; 1949 - (1949) 178 F. 2d 182

 
 Victoria Laundry (Windsor) Ltd v Newman Industries; CA 1949 - [1949] 2 KB 528
 
George Cohen Sons and Co Ltd v Docks and Inland Waterways Executive (1950) 84 Lloyds Rep 97
1950
CA
Sir Raymond Evershed MR
Equity, Contract
The landlord negotiating a new lease proposed to the tenant that "the terms and conditions contained in the present lease to be embodied in the new lease where applicable." The tenant accepted this offer, but the new lease as executed made the tenant liable for repairs which under the old lease had been the responsibility of the landlord. In answer to a claim for rectification, the landlord said that the new lease was in accordance with what he had understood to be the effect of his offer. Held: This was irrelevant. What mattered was the objective meaning of what the landlord had written. Sir Raymond Evershed MR said: "If the defendants . . did misconstrue [the letter] that is unfortunate for them, but at least they cannot be heard to say that their letter was intended to mean anything other than that which the words convey to the reader as a piece of ordinary English."
1 Citers


 
Basma v Weekes [1950] AC 441; [1950] 2 All ER 146
1950
PC
Lord Reid
Contract, Agency
The appellant requested specific performance of an agreement by which the first three respondents had agreed to sell to him two houses, of which they were tenants in common. The respondents pleaded, inter alia, that the agreement alleged was not a sufficient memorandum to comply with the requirements of the Statute of Frauds in that the purchaser named therein was acting, to the knowledge of the respondents, as agent for the appellant who was the principal and that the agreement did not identify the appellant as purchaser. Held: An agent who contracted in his own name did not cease to be contractually bound because it was proved that the other party knew when the contract was made that he was acting as agent. Also the agreement which was made in his name did not cease in that event to contain the names of the contracting parties, and therefore did not cease to satisfy the Statute of Frauds; and, accordingly that, as the agent could have sued on the contract, so could his principal, the appellant.
In a contract subject to the Statute of Frauds the required memorandum in writing must identify the parties and a person could not intervene to claim that he was the true party to the contract when this was not consistent with the terms of the memorandum. A party is nonetheless entitled to enforce the contract to the extent he can perform it.
1 Cites

1 Citers



 
 Solle v Butcher; CA 1950 - [1950] 1 KB 671

 
 Chandris v Isbrandtsen-Moller Co Inc; CA 1950 - [1951] 1 KB 240; (1950) 2 All ER 618; (1950) 84 Lloyds Rep 347
 
Edler v Auerbach [1950] 1 KB 359
1950

Devlin J
Landlord and Tenant, Contract
Devlin J said: "It is the business of the tenant, if he does not protect himself by an express warranty, to satisfy himself that the premises are fit for the purpose for which he wants to use them, whether that fitness depends upon the state of their structure, the state of the law, or any other relevant circumstances."
Where an allegation of illegality emerges only at the time of the trial, the court should take particular care to ensure that the party taken by surprise has opportunity adduce additional evidence for the purpose of rebutting an inference of illegality which the court might be entitled to draw. The court should not act on unpleaded facts "unless it is satisfied that the whole of the relevant circumstances are before it".
1 Citers


 
Charles Rickards Ltd v Oppenheim [1950] 1 KB 616
1950
CA
Denning LJ
Contract
A buyer of a Rolls-Royce motor chassis agreed for a body to be built upon it by a fixed date. The body was not completed by that date, but after pressing for delivery, he gave a notice that unless delivery of the car with a completed body was effected within four weeks he would cancel the contract. The car was not delivered within the period of four weeks. However, thereafter the plaintiffs sought to deliver the car and, when delivery was not accepted, they sued for the sum due to them under the contract. Held: The defendant was entitled to cancel the contract. The plaintiff argued "that no notice making time of the essence could be given in regard to contracts for work and labour. The judge thought that it was a contract for the sale of goods. It was unnecessary to determine whether it was a contract for the sale of goods or a contract for work and labour, because the defendant was entitled to give a notice bringing the matter to a head. It would be most unreasonable if the defendant, having been lenient and waived the initial expressed time, should, by so doing, have prevented himself from ever thereafter insisting on reasonably quick delivery. He was entitled to give a reasonable notice making time of the essence of the matter. Adequate protection to the suppliers is given by the requirement that the notice should be reasonable."
Lord Denning: "If the defendant, as he did, led the plaintiff to believe that he would not insist on the stipulation as to time and that if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation as to time against them. Whether it be called waiver or forbearance on his part or an agreed variation or substituted performance does not matter. It is a kind of estoppel. By his conduct he evinced an intention to affect their legal relations. He made in effect a promise not to insist upon his strict legal rights. That promise was intended to be acted upon and was in fact acted upon. He cannot afterwards go back on it." and "It would be most unreasonable if the defendant having been lenient and waived the initial expressed time, should, by so doing, have prevented himself from ever thereafter insisting on reasonably quick delivery. In my judgment, he was entitled to give a reasonable notice making time of the essence of the matter." The reasonableness of the notice must be judged at the time at which it is given.
1 Citers


 
Leaf v International Galleries (a Firm) [1950] 1 All ER 693
1 Mar 1950
CA
Sir Raymond Evershed MR, Denning LJ, Jenkins LJ
Contract
In 1944, the plaintiff had purchased a picture of Salisbury Cathedral from the defendant. By innocent misrepresentation, he was told that it was by Constable, and only learned of the error when he set out to sell it five years later. Held: On the assumption that it was not a Constable and that it had been a condition of the contract that it be such, the plaintiff had had a right to reject the picture. That right would be lost after a reasonable time. Five years was too long, and the right to reject was lost.
Denning LJ said: "In my opinion, this case is to be decided according to the well known principles applicable to the sale of goods. This was a contract for the sale of goods. There was a mistake about the quality of the subject-matter, because both parties believed the picture to be a Constable; and that mistake was in one sense essential or fundamental. But such a mistake does not avoid the contract: there was no mistake at all about the subject-matter of the sale. It was a specific picture, 'Salisbury Cathedral'. The parties were agreed in the same terms on the same subject -matter, and that is sufficient to make a contract: see Solle v Butcher.
"There was a term in the contract as to the quality of the subject-matter: namely, as to the person by whom the picture was painted - that it was by Constable. That term of the contract was, according to our terminology, either a condition or a warranty. If it was a condition, the buyer could reject the picture for breach of the condition at any time before he accepted it, or is deemed to have accepted it; whereas, if it was only a warranty, he could not reject it at all but was confined to a claim for damages. . . I think it right to assume in the buyer's favour that this term was a condition"
1 Cites

1 Citers



 
 Chelsea and Walham Green Building Society v Armstrong; 1951 - [1951] 1 Ch 853
 
Howard v Pickford Tool Co Ltd [1951] 1 KB 417
1951
CA
Asquith LJ
Contract
An unaccepted wrongful repudiation that is not in itself a breach does not give rise to a right in damages. Unless and until the repudiation is accepted the contract continues in existence. Asquith LJ said that an unaccepted repudiation is "a thing writ in water and of no value to anybody".
1 Citers


 
British Motor Trade Association v Gilbert [1951] 2 All ER 641
1951

Dankwerts J
Contract, Damages
The Association had attempted to control the price of cars in the context of statutory support. It was after the Second World war and new cars were in short supply. Buyers of new cars had to contract not to sell the car bought for two years without first offering it for sale to the plaintiff at a price reflecting the depreciated price as new. The defendant was accused of breaching this term. Held: The contract term was valid. The real value of the car was in fact 100 pounds less than had been paid for it to the defendant. Nevertheless the court awarded pounds 836 in damages. The plaintiff had suffered no direct financial loss but the award of damages for breach of contract would effectively strip the wrongdoer of the profit he had made from his wrongful venture into the black market for new cars. It was appropriate to go to what was described as a surreptitious market that was fed by persons who had broken their covenants.
1 Citers



 
 Bigos v Bousted; 1951 - [1951] 1 All ER 92

 
 Stedman v Swan's Tours; CA 1951 - (1951) 95 SJ 727 CA

 
 Chelsea Building Society v Armstrong; ChD 1951 - [1951] Ch 853
 
Howard v Pickford Truck Co Ltd [1951] 1 KB 417
1951
CA
Asquith LJ
Contract
Asquith LJ said: 'an unaccepted repudiation is a thing writ in water and of no value to anybody.'
1 Citers



 
 Combe v Combe; CA 1951 - [1951] 2 KB 215

 
 Curtis v Chemical Cleaning and Dyeing Co; CA 1951 - [1951] 1 KB 805

 
 British Motor Trade Association v Gray; 1951 - 1951 SLT 247; 1951 SC 586
 
Leeman v Stocks [1951] 1 Ch 941
1951

Roxburgh J
Contract, Land
The plaintiff's was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The auctioneer put in the vendor's initials and surname ("W.E.Stocks"). After the bidding, the auctioneer inserted his details, a description of the premises and the auction price and, when he had obtained it, the purchaser's solicitors name. The document ended with the words "As witness the hand of the parties hereto the day and year before written. Purchaser's solicitor, R.A.C. Symes & Co, Southampton". The purchaser signed the document over a stamp. The auctioneer told the vendor of the sale but did not show him the document. Neither he nor the vendor signed the document in the ordinary sense of the word. The vendor refused to complete alleging that there was no note or memorandum. Held: The auctioneer was agent for both parties; and had authority to put before the purchaser, as he did, a document containing the name of the vendor as the party with whom the contract had been made, and the terms of the contract which had been made, for him to agree in writing. The placing of the name "W.E. Stocks" as the name of the vendor with whom the contract was made by the auctioneer was sufficient to count as a signature of a memorandum by an authorised agent.
Although the vendor's name was not inserted in the first instance with reference to a contract with the purchaser, nevertheless when it was put before the purchaser for signature, the vendor's name was in the document in relation to a contract which had become binding, albeit not actionable without a memorandum satisfying the statute.
The court was troubled that the document by its own terms contemplated that it should be signed by both parties, from which it could be said that until then it had not been signed at all. As to that he held that when the auctioneer obtained the purchaser's signature neither he, on behalf of the vendor, nor the purchaser intended any other signature ever to be added; but that both intended the document with the purchaser's signature to be the final written record of the contract. The court could examine the evidence to see if the document relied on came into being as a "perfect instrument" i.e. as the intended final embodiment of the agreement and, if it found that it did, the court was not prevented from holding it to be a sufficient memorandum. The "authenticated signature fiction" will only have application where it is intended by each party to the contract that the memorandum or note relied upon "should be the final written record of the contract".
1 Cites

1 Citers



 
 Bonython v Commonwealth of Australia; PC 1951 - [1951] AC 201

 
 Turner v Bladin; 20-Apr-1951 - (1951) 82 CLR 463; [1951] HCA 13
 
Minister for Supply and Development v Servicemen's Co-operative Joinery Manufacturers Ltd (1951) 82 CLR 621; [1951] HCA 15
26 Apr 1951


Contract
High Court of Australia - Sale of Goods - Passing of property - Specific goods in deliverable condition - Purchaser in possession of goods as bailee - Contract of sale requiring "net cash before delivery" - Seller's right of action for price though property has not passed - Sale of Goods Act 1895-1943 (No. 630 of 1895 - No. 36 of 1943) (S.A.), ss. 17,* 18,* 28, 49.
The Court rejected a submission that until property had passed to a buyer the seller could not sue for the purchase money and only had a remedy for damages for breach of contract. The Court noted that the parties to a sale of goods contract can make any contract they please with respect to the payment of the purchase price of the goods. If the parties provide that the price is to be paid before property passes the seller can sue for the price as soon as it becomes payable because the payment of the price is a condition precedent of the passing of property in the goods to the purchaser.
1 Citers

[ Austlii ]

 
 Errington v Errington and Woods; CA 19-Dec-1951 - [1952] 1 KB 290; [1951] EWCA Civ 2; [1952] 1 TLR 231; [1952] 1 All ER 149
 
Midgley Estates v Hand [1952] QB 432
1952
CA
Jenkins LJ
Contract
An estate agent's commission is normally payable upon completion of the sale, but that does not prevent parties from agreeing that it should be payable upon a different event. The question depends on the construction of the particular contract.
1 Citers



 
 B and B Viennese Fashions v Losame; CA 1952 - [1952] 1 All ER 909
 
D C Thomson and Co Ltd v Deakin [1952] Ch 646
1952
CA
Jenkins LJ, Lord Evershed MR
Torts - Other, Contract
The defendant Trades Union was alleged to have indirectly prevented a supplier from performing its contract to supply paper to the plaintiffs by inducing its members to withdraw their services from the supplier. Held: It is a tort at common law knowingly to have contractual dealings which are inconsistent with a prior contract. It is also a tort for a third party directly to do an act, with knowledge of the contract, which, if done by one of the parties to the contract, would have been a breach of contract. Lord Evershed MR considered the tort of directly inducing a breach of contract, saying that it was conceded that the defendant must have acted with the intention of doing damage to the person damaged and that he must have succeeded in his efforts. So far as indirectly procuring a breach of contract was concerned, the same intention had to be proved, but the tort would only be committed if the acts indirectly inducing the breach of contract involved wrongful conduct.
Jenkins LJ said: "First . . . there may…be an actionable interference with contractual rights where other means of interference than persuasion or procurement or inducement, in the sense of influence of one kind or another brought to bear on the mind of the contract breaker to cause him to break his contract, are used by the interferer; but, secondly, that (apart from conspiracy to injure, which, as I have said, is not in question so far as this motion is concerned) acts of a third party lawful in themselves do not constitute an actionable interference with contractual rights merely because they bring about a breach of contract, even if they were done with the object and intention of bringing about such breach."
Lord Evershed MR: "It was suggested in the course of argument by Sir Frank Soskice and by Mr. Lindner, that the tort must still be properly confined to such direct intervention, that is, to cases where the intervener or persuader uses by personal intervention persuasion on the mind of one of the parties to the contract so as to procure that party to break it. I am unable to agree that any such limitation is logical, rational or part of our law. In such cases where the intervener (if I may call him such) does so directly act upon the mind of a party to the contract as to cause him to break it, the result is, for practical purposes, as though in substance he, the intervener, is breaking the contract, although he in not a party to it…At any rate, it is clear that, when there is such a direct intervention by the intervener, the intervention itself is thereby considered wrongful. I cannot think that the result is any different if the intervener, instead of so acting upon the mind of the contracting party himself, by some other act, tortious in itself, prevents the contracting party from performing the bargain. A simple case is where the intervener, for example, physically detains the contracting party so that the contracting party is rendered unable by the detention to perform the contract."
1 Citers


 
Bromley v Tyron [1952] AC 265
1952

Lord Simonds LC
Contract
Lord Simonds LC said: "Then it was said that even so the words are uncertain in content, for it is purely a question of degree what constitutes the ‘bulk’. I cannot accept this contention. I think that according to the ordinary use of language the bulk means the greater part, which may according to the subject-matter refer to area, number or value. And that I may not be thought guilty of a solution which is equally obscure, I will add that ‘greater part’ means anything over one-half."
1 Citers


 
Armstrong v Strain [1952] 1 KB 236
1952
CA
Devlin J
Torts - Other, Contract
(Upheld)
1 Cites

1 Citers


 
Amalgamated Building Contractors v Waltham Holy Cross Urban District Council [1952] 2 All ER 452
1952


Contract
Where a contract made explicit allowance for extensions of time for performance, extensions could be granted retrospectively.
1 Citers



 
 Stevenson v MacDonald; 1952 - (1952) 1 TLR 101

 
 Lee v Showmens Guild of Great Britain; CA 1952 - [1952] 2 QB 329; [1952] 1 All ER 1175
 
British Movietone News Limited v London and District Cinemas Limited [1952] AC 166
1952
HL
Viscount Simon
Contract
Viscount Simon said: "It is of the utmost importance that the action of a court, when it decides that in view of a supervening situation the rights and obligations under a contract have automatically ceased, should not be misunderstood. The suggestion that an "uncontemplated turn of events" is enough to enable a court to substitute its notion of what is "just and reasonable" for the contract as it stands, even though there is no "frustrating event," appears to be likely to lead to some misunderstanding. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate – a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made. If, on the other hand, a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different situation which has now unexpectedly emerged, the contract ceases to bind at that point – not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply in that situation."
1 Cites

1 Citers


 
Hyde v Pimley [1952] 2 All ER 102
1952
CA
Sir Raymond Evershed MR
Contract
The court drew a distinction between prior consent to a breach of contract and waiver or forbearance. Sir Raymond Evershed MR said: "The learned judge was of opinion that consent to the commission of a particular act was not the same thing as forgiveness of the act after it had been committed and so far we agree with him."
1 Citers



 
 Re Duke of Devonshire's Settlement; 1952 - (1952) ATC 405
 
B and B Viennese Fashions v Losane [1952] 1 All E R 909
1952
CA
Jenkins LJ
Contract

1 Citers


 
Jenning and Chapman Ltd v Woodman Matthews and Co [1952] 2 TLR 406
1952


Contract

1 Citers


 
Barclays Bank v Beck [1952] 2 QB 47
1952
CA
Denning LJ
Land, Contract
The court drew a distinction between an action on a debt which had been but was no longer secured, and a debt which had not been secured.
1 Citers


 
Canada Steamship Lines Ltd v The King [1952] AC 192; [1952] UKPC 1; [1952] 1 TLR 261; [1952] 1 All ER 305; [1952] 1 Lloyd's Rep 1
21 Jan 1952
PC
Lord Morton of Henryton
Contract
A lease of a freight shed exonerated the lessor from "any claim . . for . . damage . . to . . Goods . . being . . in the said shed" and requiring the lessee to indemnify the lessor "from and against all claims". The negligent use of an oxy-acetylene torch by an employee led to a fire which destroyed the shed and contents. The question was whether the lessee could claim against the lessor for the loss of its goods that had been in the shed. Held: The courts should not ordinarily infer that a contracting party has given up rights which the law confers upon him to an extent greater than the contract terms indicate he has chosen to do; and if the contract terms can take legal and practical effect without denying him the rights he would ordinarily enjoy if the other party is negligent, they will be read as not denying him those rights unless they are so expressed as to make clear that they do. An exclusion clause to be effective must satisfy these three tests "(1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called the `the proferens') from the consequences of his own servants, effect must be given to that provision (2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens (3) If the words used are wide enough for the above purpose, the court must then consider whether `the head of damage may be based on some ground other than negligence' . . . The `other ground' must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, . . . the existence of a possible head of damage other then that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part of his servants."
1 Citers

[ Bailii ]

 
 Mathieson Gee (Ayrshire) Ltd v Quigley; HL 6-Mar-1952 - [1952] UKHL 2; 1952 SLT 239; 1952 SC (HL) 38

 
 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd; QBD 16-Jul-1952 - [1952] 2 All ER 456; [1952] 2 QB 795; [1953] EWCA Civ 6

 
 Taylor v Glasgow Corporation; SCS 23-Jul-1952 - [1952] ScotCS CSIH - 1; 1952 SLT 399; 1952 SC 440

 
 Brewer Street Investment v Barclays Woollen Co; CA 1953 - [1954] 1 QB 428; [1953] 2 All ER 1330
 
Simpson v Connolly [1953] 1 WLR 911
1953

Finnemore J
Contract
There had been an agreement to transfer land in consideration of the extinguishment of a debt. The court was asked whether this was a sale. Held: It was not. The ordinary meaning of the word "sale" is a transfer of property in return for a consideration in money or money's worth. Finnemore J said: ""It is argued for the plaintiff that a sale means in the case of land, as in the case of goods, an exchange of land (or goods) for money. It is laid down clearly in the books which deal with sale of personal chattels that a sale or a contract of sale is an agreement to exchange goods for money, although it is possible that part of the consideration might be something other than money, as for example, when a person buys a new car for an agreed price, part of which he pays in money and part of which he satisfies by means of surrendering another car. But the general principle of English law in regard to sale is that a sale means the exchanging of property for money. That applies - to a sale of land and to a sale of chattels equally.
The real problem is whether it is still a sale if no money passes but one person says to another, to take this case, if you give me a piece of land, I will excuse you your debt which you owe me."


 
 James Shaffer Ltd v Findlay Durham and Brodie; CA 1953 - [1953] 1 WLR 106

 
 Frederick E Rose (London) Ltd v William H Pim Jnr and Co Ld; CA 1953 - [1953] 2 QB 450
 
Chantrey Martin v Martin [1953] 2 QB 286
1953
CA

Contract
The professional working papers of a firm of accountants were held not to be the property of the client, but letters and other papers created by accountants as agent for client were the client's property: "Working accounts and other papers which were brought into existence by chartered accountants in the preparation of a final audit of a client''s books are the property of the accountants and not of the client"
1 Citers



 
 Frederick E Rose (London) Limited v William H Pim Junior and Co Limited; 1953 - [1953] 2 QB 450

 
 Cooden Engineering Co Ltd v Stanford; CA 1953 - [1953] 1 QB 86; [1952] 2 All ER 915

 
 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd; CA 5-Feb-1953 - [1953] 1 QB 401; [1953] 1 All ER 482; [1953] EWCA Civ 6
 
Stockloser v Johnson [1954] CLY 1463; [1954] 1 QB 476
1954
CA
Romer, Denning and Somervell LJJ
Contract, Equity
Romer LJ said that, in the absence of pressure or duress, or other vitiating elements, there was no jurisdiction to provide for relief against forfeiture in the event of the purchaser's default in contracts other than those relating to land.
Denning and Somervell LJJ doubted the correctness of Farwell J and held that where the sum forfeited was out of all proportion to the damage and it was unconscionable for the vendor to retain it, then equity would intervene : even though at common law there was no cause of action whereby the purchaser could have recovered the money paid over.
Denning LJ asked: "Suppose a buyer has agreed to buy a necklace by instalments, and the contract provides that, on default in payment of any one instalment, the seller is entitled to rescind the contract and forfeit the instalments already paid. The buyer pays 90 per cent. of the price but fails to pay the last instalment. He is not able to perform the contract because he simply cannot find the money. The seller thereupon rescinds the contract and retakes the necklace and resells it at a higher price. Surely equity will relieve the buyer against forfeiture of the money on such terms as may be just"
1 Cites

1 Citers


 
Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250
1954
CA
Lord Denning MR
Contract
The court discussed the doctrine of privity of contract. Lord Denning MR said: "It is often said to be a fundamental principle of our law that only a person who is a party to a contract can sue on it. I wish to assert, as distinctly as I can, that the common law in its original setting knew no such principle. Indeed, it said quite the contrary. For the 200 years before 1861 it was settled law that, if a promise in a simple contract was made expressly for the benefit of a third person in such circumstances that it was intended to be enforceable by him, then the common law would enforce the promise at his instance, although he was not a party to the contract."
Law of Property Act 1925 56
1 Cites

1 Citers


 
Kwei Tek Chao v British Traders and Shippers [1954] 2 QB 459
1954

Devlin J
Contract, Consumer
In testing whether a buyer of goods has acted inconsistently with the rights of the seller so as to lose the right of rejection where as in this case, property in the goods has passed to the buyer, the ownership of the seller with which the buyer must not act inconsistently is the reversionary interest of the seller which remains in him arising from the contingency that the buyer may reject the goods.
1 Citers


 
Baker v Jones [1954] 1 WLR 1005
1954

Lynskey J
Contract, Company, Torts - Other
There was a dispute within an unincorporated weightlifting association about an alleged misuse of its funds. Held: Words in an agreement are void to the extent that they seek to oust the jurisdiction of the court.
Lynsey J said: "The association, being an unincorporated body, could not be liable for the tortious acts either of its officials or council members. The members of the association, individually, would not be liable for such tortious acts, except in so far as they had individually authorized such acts."
and 'The common law does not approve of the intervention of any man in the litigation of another with which he had no lawful concern, whether that litigation is well founded or not' However, as to the law prohibiting maintenance of an action the common law rules were "much modified and, as some say, almost atrophied"
It is contrary to the common law and contrary to public policy to attempt to oust the jurisdiction of the courts
1 Citers



 
 Cullinane v British "Rema" Manufacturing Co Ltd; CA 1954 - [1954] 1 QB 292

 
 Pyrene v Scindia Navigation Co; 1954 - [1954] 2 QB 402; [1954] 2 WLR 1005; [1954] 1 Lloyds Rep 321; [1954] 2 All ER 158
 
Newborne v Sensolid (Great Britain) Ltd [1954] 1 QB 45; [1953] 1 All ER 708
1954

Lord Goddard CJ, Morris LJ
Contract
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne's signature under it. At that time it had not yet been incorporated. Mr Newborne attempted to enforce the contract as one to which he was party. Held: This was inconsistent with the description of the party in the contract. Lord Goddard CJ: "In my opinion, unfortunate though it may be, as the company was not in existence when the contract was signed there never was a contract, and Mr Newborne cannot come forward and say: 'Well, it was my contract.' The fact is, he made a contract for a company which did not exist." The contract purported to be a contract with the company and it was not relevant that, as was the case, it was a matter of indifference to the purchasers whether they contracted with the company, or with Mr Newborne personally.
1 Citers



 
 Compania Naviera Maropan S/A v Bowater's Pulp and Paper Mills Limited (The "Stork"); CA 1954 - [1955] 2 QB 68; [1954] 2 Lloyds Rep 397
 
Anderson v Lambie [1954] UKHL 3; [1954] 1 WLR 303; [1954] 3 All ER 157 (Note); 1954 SLT (Notes) 22; 1954 SLT 73; 1954 SC (HL) 43
25 Jan 1954
HL
Lord Reid, Lord Keith of Avonholm
Scotland, Land, Litigation Practice, Contract
As the result of a mistake, a disposition of property conveyed the entirety of an estate which consisted mainly of a farm, but also included other property. The preceding missives of sale were capable of more than one meaning as to the extent of the subjects to be conveyed. The evidence established that the missives had themselves been preceded by an oral agreement for the sale of the farm alone. Held: The appeal succeeded and the decision of the First Division reversed. Such problems with this type of mistake in expression could not be resolved by construing the document as it stood, unlike a mistake in expression which was obvious on the face of the document. Neither was this a situation where an agreement was vitiated by error: "in the present case the error only arose after the parties had reached agreement". There must nevertheless be a remedy.
However, it was incompetent under Scots law for a defectively expressed document to be corrected by the court so as to give effect to the true agreement between the parties.
Lord Keith of Avonholm said that reduction was available in the event of a conveyance or contract "being expressed as regards essentials in different terms from what the parties really intended and had agreed between them".
As to the remedy of reduction, Lord Reid said: "But, when it is sought to reduce a deed, it is necessary to go behind the deed and discover the real facts. The fact that the parties agreed to the missives is important evidence but it is not the only competent evidence. The question is not what the missives mean: if that were the question, the ordinary rule would apply that the meaning of a document must be found from its terms. The question is whether the real facts are such that the disposition must be reduced, and the existence of the missives does not alter the nature of the inquiry."
1 Cites

[ Bailii ]
 
Routledge v McKay and others [1954] EWCA Civ 8; [1954] 1 All ER 855; [1954] 1 WLR 615
10 Mar 1954
CA
Sir Raymond Evershed MR, Denning, Romer LJJ
Contract
In considering whether a statement amounts to a warranty in a contract, the court may have regard to the time which has elapsed between the time of making the statement and the final implementation of the agreement; if the interval is a long one, thus points to a representation.
1 Cites

[ Bailii ]
 
Smith v Sim [1954] ScotCS CSOH - 7; 1954 SC 357
25 May 1954
SCS
Lord Wheatley
Contract
Defender's counsel submitted that the pursuer's case was irrelevant in respect that he sought to maintain the contract in existence and at the same time to sue for damages.
[ Bailii ]
 
Grant v John Grant and Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112
1 Jun 1954

Dixon C.J.(1), Webb(2), Fullagar(1), Kitto(1) and Taylor(1) JJ.
Contract
(High Court of Australia) Contract - Deed of release - Recitals - Limitation - Claims not in contemplation unaffected - Equitable considerations affecting release - General words.
Dixon CJ said: "No doubt it is possible a priori that the release was framed in general terms in the hope of blotting out, so to speak, all conceivable grounds of further disputes or claims between all or any two or more parties to the deed, whether in respect of matters disclosed by a party against whom a claim might be made or undisclosed, of matters within the knowledge of a party by whom a claim might be made or outside it. If so the case would fall within the exception which, in the passage already cited, Lord Northington [Lord Keeper Henley] made from his proposition that a release ex vi termini imports a knowledge in the releasor of what he releases, namely the exception expressed by the words 'unless upon a particular and solemn composition for peace persons expressly agree to release uncertain demands' (Salkeld v Vernon)."
1 Cites

1 Citers

[ Austlii ]
 
The United Africa Company, Limited v Saka Owoade (West Africa) [1957] 3 All ER 216; [1954] UKPC 44; [1955] 2 WLR 13; [1954] 2 Lloyd's Rep 607; [1955] AC 130
13 Dec 1954
PC

Contract, Transport
(from the West African Court of Appeal)
[ Bailii ]

 
 Entores Ltd v Miles Far East Corporation; CA 1955 - [1955] 2 All ER 394; [1955] 2 QB 327; [1955] EWCA Civ 3; [1955] 3 WLR 48; [1955] 1 Lloyds Rep 511; 99 Sol Jo 384
 
Simpkins v Pays [1955] 1 WLR 975
1955

Sellers J
Contract
The court found an intention to create legal relations and therefore an enforceable contract among the members of a family to share the winnings in a newspaper competition which the family regularly entered.
Sellers J said: "It may well be there are many family associations where some sort of rough and ready statement is made which would not, in a proper estimate of the circumstances, establish a contract which was contemplated to have legal consequence, but I do not so find here. I think that in the present case there was a mutuality of the arrangement between the parties."
1 Citers


 
Hardman v Falk [1955] 3 DLR 129
1955


Contract, Commonwealth
Canada - "The contract of a lunatic is voidable not void: see York Glass Co. v. Jubb, Courts of equity will not interfere if a contract with a lunatic is made in good faith without any knowledge of the incapacity of the lunatic and no advantage is taken. If the contract is fair and the respondent had no knowledge that the appellant was a lunatic, the appellant is without a remedy: see Wilson v. The King."
1 Citers


 
Adler v Dickson; 'the Himalaya' [1955] 1 QB 158; [1954] 2 All ER 397; [1954] 3 WLR 696; 98 Sol Jo 787; [1954] 2 Lloyd's Rep 267
1955
CA

Personal Injury, Contract
The defendants were the master and boatswain of the P&O passenger liner Himalaya. The plaintiff was a passenger who was injured when an insecure gangway slipped and he fell 16ft to the wharf. The plaintiff had a contract with P&O which excluded liability for such an injury: 'passengers . . Are carried at passengers' entire risk' and 'The company will not responsible for and shall be exempt from all liability in respect of any injury whatsoever of or to the person of any passenger . . Whether such injury shall occur on land, on shipboard or elsewhere . . And whether the same shall arise from or be occasioned by the negligence of the company's servants . . In the discharge of their duties, or while a passenger is embarking or disembarking, or whether by the negligence of other persons directly or indirectly in the service of the company, or otherwise by the act of God . . Dangers of the seas . . Or by accidents . . or any acts, defaults, or negligence of the master, mariners . . Company's agents or servants of any kind under any circumstances whatsoever.' The defendants sought to rely on that clause. The master had directed that the clause succeeded as a defence. Held: The defendants were liable. They owed the plaintiff a duty of care in tort. They should have seen that the gangway was properly secured. The defendants' contractual duty was to their employers but they also owed a duty of care in the law of tort to those who were liable to be affected by any carelessness on their part which was foreseeably capable of causing injury to such persons. It was their conduct which had given rise to the situation (the inadequately secured gangway) which was the situation which caused the plaintiff's injury. The contract was between the company and the passenger, and the company had not contracted as agents for their servants. The defendants were not able to take advantage of the clause.
1 Citers



 
 Tool Metal Manufactuing Company Ltd v Tungsten Electric Company Ltd; HL 16-Jun-1955 - [1955] UKHL 5; [1955] 1 WLR 761; [1955] 2 All ER 657

 
 Alati v Kruger; 29-Nov-1955 - (1955) 94 CLR 216; [1955] HCA 64; [1955] ALR 1047
 
In re Helbert Wagg and Co Ltd's Claim [1956] 1 Ch 323
8 Dec 1955
ChD
Upjohn J
International, Contract
Conflict of Laws - Movables - Assignment - Foreign legislation - Validity - Foreign exchange legislation - Whether confiscatory - German Moratorium law of 1933 - Debt payable in London made payable to Konversionskasse in Reichsmarks - German law proper law of contract.
Conflict of Laws - Chose in action or debt - Situs - Debtor's place of residence - No situs until but payable
Conflict of Laws - Contract - Proper law - Contract to be "construed in accordance with x law" - x proper law.
Trading with the Enemy - Loan before war - Enemy debtor - Whether contract abrogate
Trading with the Enemy - Administrator of Enemy Property - Appeal from decision - Whether decision of Administrator on effect of German law final - Distribution of German Enemy Property Act, 1949 (12, 13 and 14 Geo. 6, c. 85) - Distribution of German Enemy Property (No. 2) Order, 1951 (S.I. 1951, No. 1899), art. 7 (2).
Contract - Conflict of laws - Debt - No local situation until payable - Governed by proper law - Moratorium law - Whether confiscatory.
Upjohn J said: "the elementary proposition that it is part of the law of England, and of most nations, that in general every civilized state must be recognized as having power to legislate in respect of movables situate within that state and in respect of contracts governed by the law of that state, and that such legislation must be recognized by other states as valid and effectual to alter title to such movables."
1 Citers

[ Google Groups ]
 
Miller v Emcer Products Ltd [1956] EWCA Civ 6; [1956] 1 All ER 237; [1956] Ch 304
20 Dec 1955
CA
Sir Raymond Evershed MR, Birkett LJ, Romer LJ
Landlord and Tenant, Contract
An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term.
1 Citers

[ Bailii ]
 
W F Harrison and Co v Burke [1956] 1 WLR 419
1956


Contract
If a notice of assignment of a debt describes the assignment by reference to a wrong date, the notice is invalid because it has described a non-existent document.
Law of Property Act 1925 139
1 Citers


 
Peter Long and Partners v Burns [1956] 1 WLR 1083
1956
CA
Romer LJ, Singleton LJ, Morris LJ
Agency, Contract
The estate agency agreement at issue said that commission was payable on the agents "introducing a person ready, willing and able to enter into a binding contract to purchase". The purchaser entered into the contract, but then resiled after discovery of a misrepresentation. The contract was cancelled by agreement between the parties on payment of a sum of money by the purchaser. The estate agents claimed their commission but the vendor refused to pay. The agent failed in their action for breach of contract. That action failed. Held: In this context, a "binding contract" meant one which was legally enforceable by the vendor against the purchaser. Since the contract had been rendered unenforceable by the vendor as a result of the innocent misrepresentation of the estate agents, no commission was payable. The estate agents argued that the vendor could not take advantage of the misrepresentation made by them to the purchaser since she herself had given the relevant information to the estate agents. Singleton LJ did not agree. The making of such a representation to the purchaser without checking the information given by the vendor bordered on recklessness.
Romer, LJ, said: "I have no doubt that the contract which [the purchaser] did sign was not a binding contract within the terms of the commission note. I agree … that "a binding contract" in this context is the same as a legally binding contract, and that means a contract binding on the purchaser and legally enforceable against the purchaser by the vendor. The contract which [the purchaser] signed was never legally enforceable against her by [the vendor] because of the innocent misrepresentation which was made to her by [the estate agents' representative]. Moreover, the contract was voidable by [the purchaser], who could rescind it the moment that she discovered what the true facts were. Accordingly, it appears to me impossible to say that it was a binding contract within the meaning of that phrase as used in the commission note.
A voidable contract, when rescinded, is avoided ab initio."
Morris LJ said: "The Plaintiffs further submit there was an estoppel. They plead as follows in paragraph 3 of the reply: "If it is found that the said contract was not binding on [the purchaser] [the estate agents] will further say that [the vendor] having innocently misled [the estate agents' representative] who upon [the vendor's] said instructions innocently misled [the purchaser], [the vendor] is estopped from setting up her own misrepresentation, resulting in the rescission of her contract with [the purchaser], to defeat [the estate agents'] claim for commission." But, in my judgment, this is not a case where the doctrine of estoppel can be relied upon. There was nothing to prevent [the purchaser] from proving that there had been an innocent misrepresentation and so from resiling from the contract. Upon proof that [the purchaser] did disaffirm the contract it was shown there had been no binding contract and so that commission had not been earned. There is no evidence, for no oral evidence was called, that had Mrs Pritchard known the true facts as to the road widening she might have purchased at a lower figure and so enabled [the estate agents] to earn some commission. There was no evidence to that effect.
What, then, is the legal basis of [the estate agents'] complaint? [The estate agents] may say that they wasted some time because they had some dealing with [the purchaser] which led to an abortive contract. But there is no claim against [the vendor] on that basis; nor do I see there could be. [The vendor] made no fraudulent misrepresentation to [the estate agents], and no sort of suggestion of that kind is or could be made. [The estate agents] do not suggest that [the vendor] gave any warranty to them of the truth of the representation which she made."
1 Citers


 
Regazzoni v KC Sethia (1994) Ltd [1956] 2 QB 490; [1956] 2 All ER 487
1956
CA
Parker, Denning LJJ
International, Contract
The rule against enforcing foreign political laws did not require it to enforce a contract that violated Indian laws against export to South Africa. The court permitted recognition but not enforcement of foreign revenue laws.
Denning LJ said: "if two people knowingly agree together to break the laws of a friendly country or to procure someone else to break them or to assist in the doing of it, then they cannot ask this court to give its aid to the enforcement of their agreement."
1 Citers



 
 Goody v Baring; CA 1956 - [1956] 1 WLR 448; [1956] 2 All ER 11; [1956] Sol Jo 320
 
Robshaw Brothers Limited v Mayer [1956] 1 Ch 125
1956

Upjohn J
Contract
Upjohn J considered what would amount to a sale. He quoted the following passage from an article which he said correctly stated the law: "But it is well established by judicial authority that in English law the primary meaning of the word 'sale' is 'the conveyance of some article for money'. He refers to J & P. Coats v Inland Revenue Commissioners, and then says "that a power to sell means, in the absence of any context, a power to sell for money and that a person who exercises such a power is bound to sell for money": see per Stirling J in Payne v The Cork Co. Ltd." He added: "There are, no doubt, to be found authorities and statutes which have extended that meaning. In Williams on The Contract of Sale of Land, it is stated on p.3: "'Sale', in the strict and primary sense of the word, means an agreement for the conveyance of property for a price in money; but the word 'sale' may be used in law in a wider sense and so applied to the conveyance of land for a price consisting wholly or partly of money's worth other than the conveyance of some other land." Apparently, he considered that a sale for something other than money can in a wider sense be properly described as a sale."
1 Citers


 
Spurling (J ) Ltd v Bradshaw [1956] 2 All ER 121 CA; [1956] 1 WLR 461; [1956] EWCA Civ 3
1956
CA
Denning LJ
Contract
A person will not be bound by terms of a contract of which he has not received reasonable notice. Denning LJ: "I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient. The clause in this case, however, in my judgment, does not call for such exceptional treatment, especially when it was construed, as it should be, subject to the proviso that it only applies when the warehouseman is carrying out his contract – not when he is deviating from it."
1 Citers

[ Bailii ]

 
 St John Shipping Corporation v Joseph Rank Limited; 1956 - [1957] 1 QB 267; [1956] 3 All ER 683

 
 Lazarus Estates Ltd v Beasley; CA 1956 - [1956] 1 QB 702; [1956] 1 All ER 341

 
 Ward v Byham; CA 16-Jan-1956 - [1956] EWCA Civ 1; [1956] 2 All ER 318; [1956] 1 WLR 496
 
Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81
28 Mar 1956

Taylor J, McTiernan J, Fullagar J, and Kitto J
Contract
(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.
1 Citers

[ Austlii ]

 
 Davis Contractors Ltd v Fareham Urban District Council; HL 19-Apr-1956 - [1956] AC 696; [1956] UKHL 3; [1956] 2 All ER 145
 
Karsales (Harrow) Ltd v Wallis [1956] EWCA Civ 4; [1956] 2 All ER 866; [1956] 1 WLR 936
12 Jun 1956
CA
Lord Denning MR
Contract

[ Bailii ]
 
Oscar Chess Ltd v Williams [1957] 1 WLR 370; [1956] EWCA Civ 5; [1957] 1 All ER 325
11 Nov 1956
CA
Denning, Hodson, Morris LJJ
Contract
Where somebody warrants something, the person giving the warranty binds himself or herself to it. Lord Denning suggested that the test of an interpretation was what an intelligent bystander would reasonably infer contracting parties had agreed upon. He said: The material distinction here is between a statement which is a term of the contract and a statement which is only an innocent misrepresentation. This distinction is best expressed by the ruling of Holt CJ, "Was it intended as a warranty or not?", using the word "warranty" there in its ordinary English meaning: because it gives the exact shade of meaning that is required. It is something to which a man must be taken to bind himself.
In applying this test, however, some misunderstanding has arisen by the use of the word "intended". It is sometimes supposed that the tribunal must look into the minds of the parties to see what they themselves intended. That is a mistake. Lord Moulton made it quite clear in Heilbut, Symons and Co v Buckleton . . that "The intention of the parties can only be deduced from the totality of the evidence . ." The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice. And this, when the facts are not in dispute, is a question of law."
1 Cites

1 Citers

[ Bailii ]
 
Feldman v Allways Travel Service [1957] CLY 934
1957

Judge Alun Pugh
Contract, Damages
The claimant sought damages after a disappointing holiday. Held: Such damages were capable of being awarded.
1 Citers


 
Eastern Distributors Limited v Goldring (Murphy, Third Party) [1957] 2 QB 600
1957
CA

Contract, Consumer
The court considered the meaning of the phrase: "shall not be entitled to enforce" in the section. Held: "How is the present case affected by the fact that the hire-purchase agreement is unenforceable? If the Act said that it was void, then of course the character of Murphy's possession could not be altered by it. But the Act says merely that it is to be unenforceable. This must mean that it is effective to alter the rights of the parties but that the altered rights cannot be enforced."
Hire-Purchase Act 1938 2(2)
1 Citers



 
 Triefus and Co Ltd v Post Office; CA 1957 - [1957] 2 QB 352; [1957] 2 All ER 387
 
Rahimtoola v Nizam of Hyderabad [1958] AC 379; [1957] 3 WLR 884; [1957] 3 All ER 441
1957
HL
Lord Reid, Viscount Simonds
International, Contract
A claim was made against the former High Commissioner for Pakistan personally for money had and received. He established that he had received the money in England in his official capacity as High Commissioner. Held: Appeal allowed. The application of the doctrine of sovereign immunity does not depend upon the persons between whom the issue is joined, but upon the subject-matter of the issue.
The House described the basis of state immunity: "The principle of sovereign immunity is not founded on any technical rules of law: it is founded on broad considerations of public policy, international law and comity." Lord Denning MR in the Court of appeal had expressed, obiter, the view that judicial immunity should not apply to commercial transactions, but the House expressly dissociated themselves from this view, because the point had not been argued.
1 Cites

1 Citers



 
 William Lacey (Hounslow) Ltd v Davis; 1957 - [1957] 1 WLR 932; [1957] 2 All ER 712

 
 Universal Cargo Carriers Corporation v Citati; 1957 - [1957] 2 QB 402

 
 Brown Jenkinson and Co Limited v Percy Dalton (London) Limited; CA 1957 - [1957] 2 QB 621

 
 Halsall v Brizell; ChD 1957 - [1957] 1 All ER 371; [1957] Ch 169

 
 Regazzoni v Sethia; HL 1957 - [1958] AC 301; [1957] 3 All ER 286

 
 Lister v Romford Ice and Cold Storage Co Ltd; HL 1957 - [1957] 1 All ER 125; [1957] AC 555; [1956] UKHL 6

 
 Brown Jenkinson v Dalton; 1957 - [1957] 2 QB 621
 
Feldman v Always Travel Unreported, October 15 1957
15 Oct 1957

Alan Pugh Judge
Damages, Contract, Consumer
The plaintiff complained that the holiday he had booked had been altered by the operator in several ways which inconvenienced and distressed him. Held: The correct measure of damages was the difference between the amount he paid and the value of what had in fact been furnished, allowing for his feelings of annoyance and frustration.

 
English v Donnelly 1958 SC 494
1958


Scotland, Contract
An agreement to subject to a foreign law a relationship which is in all other respects domestic equates with or is analogous to a contrary agreement.
1 Citers


 
Brown v Raphael [1958] Ch 636
1958

Lord Evershed MR, Romer LJ, Ormerod LJ
Land, Contract
This was a sale of an absolute reversion in a trust fund. The particulars stated that: "Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate" and the name of the solicitors who prepared the particulars was given. The solicitors made the statement of belief honestly but they had no reasonable grounds for so believing. The solicitors were better equipped with information or the means of information than the purchaser. Held: A statement that a vendor is not aware of a defect in title carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists. The statement of belief not merely implied that the solicitors held that belief, but also by implication that the solicitors knew facts which justified their opinion; that they had reasonable grounds for their belief.
1 Cites

1 Citers


 
In Re Hamilton-Snowball's Conveyance [1958] Ch 308
1958

Upjohn J
Land, Contract
The vendor had received, between contract and completion, compensation for the requisition of the premises. Held: The vendor under a contract for sale is only a qualified trustee for the purchaser of the premises with vacant possession, together with any physical accretions thereto, and not of any right to compensation moneys payable to him under an Act of Parliament which did not, in the absence of express provision in the contract, form part of the subject matter of the sale.
1 Citers


 
Baccus SRL v Servicio Nacional Del Trigo [1958] 1 QB 438
1958
CA
Jenkins LJ, Parker LJ, Singleton LJ (dissenting)
International, Contract
The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation's costs. These steps were taken on the instructions of the head of the organisation, Mr Cavero, who was a senior civil servant, without the Minister of Agriculture knowing of them. Eighteen months after the writ was served, steps were taken to stay proceedings on the ground that the organisation was a department of the Spanish Ministry of Agriculture. Held: (majority) The defendants were a department of the State of Spain and entitled to claim immunity. There could be no submission to the jurisdiction unless it were made by a person with knowledge of the right to be waived and with the authority of the foreign sovereign. Jenkins LJ: "Applying those authorities to the present case it seems to me that the evidence here, and in particular the evidence of the ambassador, .makes it reasonably plain that Mr Cavero knew nothing about sovereign immunity, or at all events, had no idea that by entering an appearance the defendants would· be giving up any advantage or; in particular, any right to claim immunity which they might otherwise have. Furthermore, Mr Cavero's superiors knew nothing about the matter at all until after the acts relied on as submissions to the jurisdiction had taken place. It seems to me, therefore, that what was done here was done by Mr Cavero without the knowledge of any of his superiors, in ignorance of his rights and without actual authority inasmuch as I think the evidence shows that the authority of the Minister of Agriculture would in fact have been necessary to enable Mr Cavero to submit to the jurisdiction."
Parker LJ: "Like Jenkins LJ, I confess that at first impression it seemed to me remarkable if the true view was that the State of Spain had not submitted to the jurisdiction. Not only was there an unconditional appearance entered on the instructions of the head of this body, Senor Cavero, himself a senior civil servant, but again on his instructions security for costs was asked for and obtained; and it was not until the writ had been served for some 18 months that any steps were taken to stay the proceedings. I am satisfied, however, as the result of Mr Kerr's argument and the cases to which he has referred, that there can be no submission in such a case as this unless it is made by a person with knowledge of the right to be waived, with knowledge of the effect of our law of procedure, and with the authority of the foreign sovereign. As Mr Kerr pointed out, proceedings against a foreign sovereign are wholly void." and "In those circumstances it does seem to me that it requires some solemn act of the foreign sovereign to bring to life something which is otherwise completely dead; and, without referring to the cases, I think that The Jassy and the case before Astbury J., In re Republic of Bolivia Exploration Syndicate Ltd., support that view. So far as this case is concerned, it is true that we have not had the benefit of an affidavit from Senor Cavero, but for my part I cannot impute to him knowledge of the effect of entering an unconditional appearance. Quite apart from that, it seems to me that the evidence is clear that although he is the person, the intermediary, to pass on instructions to English solicitors to deal with a case in England, he is bound to consult the appropriate minister as to whether sovereign immunity should be waived or not. It is true this does open up the rather alarming prospect that a foreign sovereign may allow proceedings to continue for years in this country before taking the point; but for my part I think that that is a theoretical difficulty. I do not think any person, even though he be a foreign sovereign, would be likely to be believed if in such an extreme case he were to come forward and assert that he had had no knowledge whatever of the proceedings. So far, however, as this case is concerned, I am satisfied that the point has been properly taken and that there has been no waiver."
Singleton LJ dissented. The state had created the organisation as a legal entity to trade with citizens and corporate bodies in other countries and that Mr Carvero was acting in the ordinary course of business left to him. That being so, he had, on behalf of the state, waived the state's right to claim immunity.
1 Cites

1 Citers


 
Ian Stach v Baker Bosley Ltd [1958] 2 QB 130
1958

Diplock J
Contract, Banking
The parties contracted for the sale of ship plates fob Benelux port for shipment to Canada in August-September 1956 with payment to be by confirmed irrevocable credit. The buyers failed to open the credit either by August 1st or by August 8th when the sellers called for it to be opened immediately. Held. It was the duty of the buyers to establish the credit by August 1st at the latest and, although the sellers had waived their right to treat the contract as repudiated by reason of their failure to do so until such time had elapsed after August 8th as could be regarded as "immediately", on August 14th, the sellers had been entitled to accept, as they did, the buyers' breach was a repudiation of the contract. What was required was that by the time the shipping period started the seller should have received from the banker the assurance that if he performed his part of the contract he would receive payment.
A commercial letter of credit or banker's credit is more than "a mere method of payment" and "creates a direct liability upon the banker independent of the contract of sale, and is an undertaking by the banker that if the seller presents the required documents in the required time he will receive payment of the contract price".
1 Cites

1 Citers


 
Timmins v Moreland Street Property Co Ltd [1958] Ch 110; [1957] 3 All ER 265
1958
CA
Jenkins LJ
Land, Contract
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as "6,8 and 41, Boundary Street, Shoreditch (freehold)." It was sought to connect the signature on a purchaser's deposit cheque with an unsigned memorandum that stated the terms of the contract. Held: Jenkins LJ said: "A description of this kind is to be taken as extending to the whole of the vendor’s interest in the property, so that the memorandum on the face of it records an agreement for the sale and purchase of the while of such interest. Moreover, unless the contrary appears, such interest is to be taken as comprising the fee simple in possession free from incumbrances, and the purchaser will be entitled to reject any less interest than that."
When asked as to whether a cheque and a receipt could be read together he said: "it is still indispensably necessary, in order to justify the reading of documents together for this purpose, that there should be a document signed by the party to be charged, which, while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference, express or implied, to some other document or transaction. Where any such reference can be spelt out of a document so signed, then parol evidence may be given to identify the other document referred to, or, as the case may be, to explain the other transaction, and to identify any document relating to it. If by this process a document is brought to light which contains in writing all the terms of the bargain so far as not contained in the document signed by the party to be charged, then the two documents can be read together so as to constitute a sufficient memorandum."
Law of Property Act 1925 40
1 Citers


 
Rapalli v K L Take Ltd [1958] 2 Lloyd's Rep 469
1958


Contract

1 Cites


 
Rayfield v Hands [1958] 2 All ER 194
1958


Contract

1 Cites


 
Exchange Telegraph v Giulanotti [1958] ScotCS CSOH - 7
19 Nov 1958
SCS

Scotland, Contract
The company supplied racing information to bookmakers by private telephone lines. They asserted that the defender had breached its contract by relaying the information to its branch offices without the payment of the agreed additional licence fees, and terminated the contract
[ Bailii ]

 
 Green v Russell; CA 1959 - [1959] 2 QB 226
 
Louis Dreyfus and Co v Parnaso cia Naviera SA ("The Dominator") [1959] 1 QB 499; [1959] 1 Lloyds Rep 125
1959

Diplock J
Contract
The court considered whether it could look to a deleted clause to assist in its interpretation of the contract. Held: The use of a word or phrase in the deleted part of a standard form clause may throw light on the meaning of the same word or phrase in what remains of the clause.
1 Citers


 
Abdulla v Shah [1959] AC 124
1959
PC
Lord Somervell of Harrow
Contract, Land, Commonwealth
(From Court of Appeal for Eastern Africa) An Act provided that a contract of sale did not create any interest, but the seller was bound to take as much care of the property as an owner of ordinary prudence would take. This standard was the same as that of a trustee under the Indian Trusts Act 1882, which in turn was substantially that of a trustee under English law. Held: A vendor of rent-restricted property which had become vacant between the dates of the contract and of completion was under a duty to consult the purchaser before reletting (at controlled rents) prior to completion of the contract The vendors had no right without consultation with the purchasers to diminish the value of the property as it was after the surrender by reletting.
1 Citers


 
Midland Silicones Ltd v Scruttons Ltd [1959] 2 QB 171
1959
QBD
Diplock J
Contract, Agency
A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of the chattel or a right thereto.
1 Citers


 
Aberfoyle Plantations Ltd v Cheng [1960] AC 115; [1959] 3 All ER 910
1959
PC
Lord Jenkins
Contract
A purchase had been made conditional on the renewal of certain leases. Accordingly the successful negotiation of those renewals with a third party had been made a condition of the contract. The consequences of failure had been spelt out in detail. All depended upon the true construction of the agreement in question. Until the condition was purified, there was no contract of sale to be completed. Held: In the absence of any contrary indication, a date fixed by a contract subject to a condition precedent, for performance of a duty must be strictly adhered to, and the time allowed is not to be extended by reference to equitable principles.
Lord Jenkins said: "But, subject to this overriding consideration, their Lordships would adopt, as warranted by authority and manifestly reasonable in themselves, the following general principles: (i) Where a condition or contract of sale fixes a date for the completion of the sale, then the condition must be fulfilled by that date; (ii) where a condition or contract of sale fixes no date for completion of the sale, then the condition must be fulfilled within a reasonable time; (iii) where a condition or contract of sale fixes (whether specifically or by reference to the date fixed for completion) the date by which the condition is to be fulfilled, then the date so fixed must be strictly adhered to, and the time allowed is not to be extended by reference to equitable principles."
1 Citers


 
Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] AC 576; [1959] 3 All ER 182; [1959] 2 Lloyds Rep 114
1959
PC
Lord Denning
Contract, Commonwealth
Lord Denning noted that the exclusion clause at issue "on the face of it, could not be more comprehensive" but declined to interpret it as absolving the shipping company from liability. He said: "If such an extreme width were given to the exemption clause, it would run counter to the main object and intent of the contract. For the contract, as it seems to their Lordships has, as one of its main objects, the proper delivery of the goods by the shipping company, "unto order or his or their assigns", against the production of the bill of lading. It would defeat this object entirely if the shipping company was at liberty, at its own will and pleasure, to deliver the goods to somebody else, to somebody not entitled at all, without being liable for the consequences. The clause must therefore be limited and modified to the extent necessary to enable effect to be given to the main object and intent of the contract . . "
1 Citers



 
 Oughtred v Inland Revenue Commissioners; HL 4-Nov-1959 - [1959] UKHL 3; [1960] AC 206

 
 Kiriri Cotton Co Ltd v Dewani; PC 1-Dec-1959 - [1960] AC 192; [1959] UKPC 27; [1960] 2 WLR 127; [1960] 1 All ER 177
 
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