swarb.co.uk - law index
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Contract - From: 1992 To: 1992
This page lists 29 cases, and was prepared on 20 May 2019.
Walford v Miles; HL 1992 - [1992] 2 AC 128; [1992] 1 All ER 453; [1992] 2 WLR 174; [1992] ANZ Conv R 207
New England Reinsurance Corporation v Messoghios Insurance Co [1992] 2 Lloyds LR 251
1992
Insurance, Contract
Where, on the face of the documents the parties contemplate that, before being bound by a contract, they will execute a written contract the terms of which require careful negotiation, there is a distinction between a party who indicates his agreement to the wording to be contained in the contract and his assent to be bound by the contract itself once drawn up and executed.
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Dresser UK v Falcongate Freight Management Ltd; The Duke of Yare [1992] 5 CL 373; [1992] QB 502
1992
CA
Bingham LJ
Contract, Jurisdiction
In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a "tie-break rule" which operates on the basis of strict chronological preference".
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
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Stewart Gill Ltd v Horatio Myer and Co Ltd [1992] QB 600; [1992] 2 All ER 257; [1992] 2 WLR 721
1992
CA
Stuart-Smith LJ
Contract
The "guidelines" in Schedule 2 are usually regarded as of general application to the question of reasonableness under the 1977 Act. The effect of s13 which deals with exemption clauses, is to apply s3 inter alia to "no set off" clauses. The reasonableness requirement must be satisfied in relation to the clause as a whole and not only to that part on which the party relies. Although not specifically applicable to cases falling within Section 3 of the 1977 Act, the five guidelines as to reasonableness set out in Schedule 2 are nonetheless relevant to the question of reasonableness, while bearing in mind that the court is dealing with a commercial and not a consumer transaction. They ought therefore to be taken into account.
Unfair Contract Terms Act 1977 3 13 Sch 2
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Surrey County Council and Mole District Council v Bredero Homes Ltd [1992] 3 All ER 302
1992
ChD
Ferris J
Damages, Contract
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought damages for breach of covenant. Held: Only nominal damages were payable. The plaintiff was entitled to be put in the same financial position he would have been in but for the breach. He had no losses.
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Tootal Clothing Ltd v Guinea Properties Ltd; CA 1992 - [1992] 64 P and CR 452; [1992] 2 EGLR 80
Tuck v Baker; CA 1992 - [1992] EGLR 195
Punjab National Bank v de Boinville [1992] 1 WLR 1138; [1992] 1 Lloyds Rep 7; [1992] 3 All ER 104
1992
CA
Staughton
Negligence, Contract
The plaintiff was a person whom the broker knew was to become the assignee of an insurance policy, and the plaintiff had actively participated in giving instructions to the broker for the purchase of the relevant policy. Held: A duty of care was exceptionally owed by an insurance broker not only to his client but also to a specific person whom he knew was to become an assignee of the policy. However, in the absence of extraordinary circumstances, a broker owes no duty of care to prevent economic loss except in accordance with his or her contract of retainer.
the employees of underwriting firms who had been responsible for acts of nondisclosure and misrepresentation were themselves liable for those acts. The reasoning of the court in that case was that those individuals "were evidently entrusted with the whole or nearly the whole of the task which their employers undertook".
Staughton LJ said: "if the parties to a concluded contract subsequently agree in express terms that some words in it are to be replaced by others, one can have regard to all aspects of the subsequent agreement in construing the contract, including the deletions, even in a case which is not, or is not wholly, concerned with a printed form."
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Deanplan Limited v Mahmoud [1993] Ch 151; [1992] 3 All ER 945
1992
His Honour Judge Paul Baker QC
Contract
The court considered whether a release of one of joint contractors released the other contractors. He said: "An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released from liability following an agreement between the lessor and the occupying assignee of the lease under which the lessor takes surrender of the lease and some of the assignee's goods in return for releasing the assignee from all claims under the lease. In short, does the release, by accord and satisfaction of one covenanter, release the other covenanters undertaking the same obligation?" and
"From this long review of the cases, I draw the following conclusions. First, a release of one joint contractor releases the others. There is only one obligation. A release may be under seal or by accord and satisfaction. A covenant not to sue is not a release. It is merely a contract between the creditor and the joint debtor which does not affect the liabilities of the other joint contractors or their rights of contribution and indemnity against their co-contractors. It is a question of the construction of the contract between the creditor and joint debtor in the light of the surrounding circumstances whether the contract amounts to a release or merely a contract not to sue. Secondly, the same principles apply to the contract between the creditor and one of the joint and several debtors. If one joint and several covenanters is released by accord and satisfaction, all are released. Some have seen this as illogical, and so it would be if the only reason for the rule that the release one of joint contractor is that there is only one obligation. Professor Glanville Williams sees the reason for the extended rule to have been an early uncertainty as to the nature of a joint and several obligation: see Joint Obligations , p.135, para.63. Two other reasons can be adduced. First, where the obligations are non-cumulative, i.e. the obligation of each is to perform in so far as it has not been performed by the other party, the acceptance of some other performance in lieu of the promised performance relieves the others. The covenantee cannot have both the promised performance and some other performance which he agrees to accept. Secondly, unless the co-covenantors were released following an accord and satisfaction, they could claim a right of contribution or indemnity. Thus, by suing the co -contractor, the creditor commits a breach of the contract with the released covenantor, for such an action will inevitably lead to the very claim from which the release has been purchased by accord and satisfaction. Thirdly, the reasoning in the preceding paragraph applies equally to a number of second covenanters each liable to perform the same obligation as in the case before me. Indeed the dictum of Younger LJ in Mattee v Curling [1922] (2AC 180 at 208 already averted to is consistent with this). "
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Welsh Development Agency v Export Finance Co Ltd [1992] BCLC 148; [1992] BCC 270
1992
CA
Staughton LJ, Dillon LJ, Gibson LJ
Contract
The court was asked whether a transaction relating to goods between an exporter and the defendant, as a financier, associated with sales by the exporter to third-party purchasers, amounted to a true sale by the exporter to the defendant or was merely a loan by the defendant to the exporter secured on the goods or their proceeds, in which case it would have been void as an unregistered charge over book debts. The court referred to "external" and "internal" routes to the construction of commercial documents.
Dillon LJ considered a possible case on the proposition that the written agreement was a sham intended to mask the true agreement: "But the question can also arise where, without any question of sham, there is some objective criterion in law by which the court can test whether the agreement the parties have made does or does not fall into the legal category in which the parties have sought to place their agreement." As to whether the authorities established conclusively what was to count as a charge: "In my judgment there is no one clear touchstone by which it can necessarily and inevitably be said that a document which is not a sham and which is expressed as an agreement for sale must necessarily, as a matter of law, amount to no more than the creation of a mortgage or charge on the property expressed to be sold. It is necessary therefore to look at the provisions in the master agreement as a whole to decide whether in substance it amounts to an agreement for the sale of goods or only to a mortgage or charge on goods and their proceeds."
Staughton LJ: "There are in my opinion two routes by which this principle [the principle that transactions take the effect that they appear to have] can be overcome. The first, which I will call the external route, is to show that the written document does not represent the agreement of the parties. It may, if one wishes, then be called a sham, a cloak or a device. The second is the internal route, when one looks only at the written agreement in order to ascertain from its terms whether it amounts to a transaction of the legal nature which the parties ascribe to it."
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McAlpine Humberoak Limited v McDermott International Inc (1992) 58 Build LR 1
1992
Contract
The fact that the parties have foreseen the event but not made any provision for it in their contract will usually, but not necessarily, prevent the doctrine of frustration from applying when the event occurs.
1 Citers
Youell and Others v Bland Welch and Co Ltd and Others [1992] 2 Lloyds Rep 127
1992
CA
Staughton LJ
Contract
The court considered whether an underwiter's slip was admissible when construing the policy which followed. Held: Staughton LJ said: "It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, that evidence is not admissible to vary or contradict the words of a written contract. The modern approach of the House of Lords is that, on the positive side, evidence should be admitted of the background to the contract, the surrounding circumstances, the matrix, the genesis and aim." and as to consideration of the surrounding circumstances: "The notion is [that] what the parties had in mind, and the Court is entitled to know, [is] what was going on around them at the time when they were making the contract. This applies to circumstances which were known to both parties, and to what each might reasonably have expected the other to know."
"One can . . readily assume that a reinsurance contract was intended to cover the same risks on the same conditions as the original contract of insurance, in the absence of some indication to the contrary."
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D O Ferguson and Associates v M Sohl (1992) 62 BLR 199
1992
CA
Contract, Equity
A building contract was repudiated by the builders at a time when the works had been partly completed. The contract price was approximately £32,000. At the time when the builders abandoned the site they had been paid over £26,000 and the value of work done by them was about £22,000. Held: The owner was entitled to claim in restitution for the sum of £4,673, representing the amount by which the sums paid to the builders exceeded the value of the work done. The builders had objected that there had not been a total failure of consideration under the contract, since most of the building work had been done, but the court held that there had been a total failure of consideration for the amount by which the builders had been overpaid.
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Behzadi v Shaftsbury Hotels; CA 1992 - [1992] Ch 1; [1991] 2 All ER 477; [1991] 2 WLR 1251; [1992] ANZ Conv R 112
Bratton Seymour Service Co Ltd v Oxborough [1992] BCLC 693
1992
CA
Company, Contract
The company was set up to acquire and manage a property divided into flats which also included "amenity areas" (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the part of each flat owner/member to contribute to the expenses of maintaining the amenity areas. The implication was said to be derived from the circumstances in which the property was acquired and the terms of the conveyance to the company. Held: Such background facts were not admissible to construe the meaning of the articles. The court emphasised both the unusual nature of the contract between members of a company constituted by Articles of Association of the company and the very limited assistance which extrinsic evidence of surrounding circumstances can provide in construing the Articles. In construing the articles of association of the management company of a building divided into flats, background facts which would have been known to all the signatories were inadmissible because the articles should be regarded as addressed to anyone who read the register of companies, including persons who would have known nothing of the facts in question.
1 Citers
Orion Insurance Co v Sphere Drake Insurance; CA 1992 - [1992] 1 Lloyd's Rep 239
Peter Yates v Bullock [1992] EGLR 24
1992
Agency, Contract
Whether an introduction of a purchaser by an estate agent to the vendor was the "effective cause" of the transaction which ultimately takes place must be resolved by an examination of the facts as a whole.
1 Citers
Marc Rich v SOCAP Unreported 1992
1992
Savill J
Contract
The court equated best endeavours with due diligence.
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Lloyds and Scottish Finance Ltd v Cyril Lord Carpet Sales Limited [1992] BCLC 609
1992
HL
Lord Wilberforce, Lord Scarman
Contract, Banking, Company, Insolvency
Lord Wilberforce consideried whether certain assignment of book debts were in substance absolute assignments by way of sale or assignments by way of charge and would be void against a liquidator for non-registration under the Companies Act. He said: "My Lords, the fact that the transaction consisted essentially in the provision of finance and the similarity in result between a loan and a sale, to all of which I have drawn attention, gives to the appellants' arguments an undoubted force. It is only possible, in fact, to decide whether they are correct by paying close regard to what the precise contractual arrangements between them and the respondents were." and "it has to be appreciated that block discounting is essentially a method of providing finance. Commercially and in its economic result, it may not differ from lending money at interest: the 'discounting charge', which represents the finance house's profit, is stated in term of so much per cent per annum, which percentage is no doubt based upon current interest rates. Legally, however, there is no doubt that discounting is not treated as the lending of money and that the asset discounted is not considered as the subject of a charge."
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Crockfords Club Ltd v Mehta; CA 8-Jan-1992 - Gazette, 08 January 1992; [1992] 1 WLR 355
Lim Teng Huan v Ang Swee Chuan Gazette, 08 January 1992
8 Jan 1992
PC
Estoppel, Contract, Commonwealth
A deed evidencing an agreement could be used in evidence in court even though it might itself be void for uncertainty. A party to the deed was estopped from denying its contents. Having built a house upon one half of jointly owned land, and thus, having acknowledged the joint title, he was not free subsequently to deny that title.
Quadrant Visual Communications Ltd and Another v Hutchison Telephone (Uk) Ltd Gazette, 22 January 1992
22 Jan 1992
CA
Contract
Specific performance of a contract was refused despite a contractual exclusion of the rules of equity. A contract was not able to exclude the right of a court to consider the actions of a party when considering the grant of specific performance.
Newberry and Another v Turngiant Ltd Gazette, 22 January 1992
22 Jan 1992
CA
Contract
The vendor was not in default and was not responsible for a delay in completion of sale of land, when the delay was required to remove a registered land charge discovered only after exchange. The contract was exchanged before the Act came into effect and the Act did not apply.
Law of Property (Miscellaneous Provisions) Act 1989
Stewart Gill Ltd v Horatio Myer and Co Ltd [1992] EWCA Civ 6; [1992] 2 QB 600
12 Feb 1992
CA
Lord Donaldson MR, Balcombe, Stuart-Smith LJJ
Consumer, Contract
Unfair Contract Terms Act 1977
[ Bailii ]
Verderame v Commercial Union Assurance Co Plc [1992] BCLC 793; Times, 02 April 1992
2 Apr 1992
CA
Balcombe LJ
Agency, Insurance, Company, Contract, Negligence, Damages
The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be awarded on the tort where they were not available in contract.
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Depositors Protection Board v Dalia and Another Gazette, 18 November 1992
18 Nov 1992
ChD
Contract, Banking, Financial Services
Equitable assignees of deposits in a bank where those deposits were protected under the scheme, were entitled to the compensation which would have been paid to the beneficial owners.
Banking Act 1987 59(1)(a)
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In Re A Debtor (No 1594 of 1992) Times, 08 December 1992
20 Nov 1992
ChD
Knox J
Legal Professions, Contract
A one-sided term inserted into a contract between solicitors and their clients by the solicitors was to be construed against the solicitors and in the client's favour where any ambiguity allowed this. The contra preferentem rule was to be applied.
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Kelly v Cooper and Another; PC 25-Nov-1992 - Gazette, 25 November 1992; [1993] AC 205; [1992] 3 WLR 936; [1993] ANZ Conv R 138
Stour Valley Builders (a Firm) v Stuart and Another Times, 22 February 1993; (1994) 2 Lloyds Reports 13; Independent, 09 February 1993; [2003] TCLR 8
21 Dec 1992
CA
Lloyd LJ
Contract
The plaintiff builders had invoiced and pursued a revised account of £10,163 after the defendants had disputed a number of items. The defendants ultimately offered a cheque in the sum of £8,471 in full and final settlement of all charges, which the plaintiff cashed upon receipt and which cleared after five days. The plaintiff then pursued the balance, calling the defendants to inform them of their intentions two days after the cheque had cleared. Held: Retaining the cheque was not conclusive of acceptance and it was a question of fact as to what terms the cheque was kept on. Although both the cashing of the cheque and a delay before rejection of the offer was evidence of acceptance they were not conclusive. The matter was one of fact.
In this case, the delay before rejection was brief and it was concluded that the plaintiff had not caused the defendants to think that the money was taken in satisfaction of the claim.
Lloyd LJ said: "As with any other bilateral contract what matters is not what the creditor himself intends but what by his words and conduct he has led the other party as a reasonable person . . to believe" and "Cashing the cheque is always strong evidence of acceptance, especially if not accompanied by immediate rejection of the offer. Retention of the cheque without rejection is also strong evidence of acceptance depending on the length of the delay. But neither of these factors are conclusive, and it would, I think, be artificial to draw a hard and fast line between the cases where the payment is accompanied by immediate rejection of the offer and cases where objection comes within a day or within a few days."
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