The House drew a distinction between a variation of a contract required to be evidenced in writing, and the rescission (or discharge) of such a contract. The former was itself required to be evidenced in writing; the latter was not.
Lord Dunedin said: ‘The criterion is in the question whether what is intended to be effected by the second contract is rescission or variation.’
Lord Parmoor said that the determining factor on which the appeal depended was the intention of the parties at the time when the second agreement was made.
Whether a variation amends the principal agreement or discharges and replaces it depends on the intention of the parties. To establish a discharge and replacement, ‘there should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire of an alteration, however sweeping, in terms which are still subsisting’
Lord Dunedin, Lord Parmoor, Viscount Haldane
[1918] AC 1
England and Wales
Citing:
Approved – Williams v Moss Empires Ltd ChD 1915
The court considered what was necessary to achieve a variation of a contract. Shearman J: ‘The principle . . is that where there is alleged to have been a variation of a written contract by a new parol contract, which incorporates some of the terms . .
Cited by:
Applied – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Adopted – British and Beningtons Ltd v North Western Cachar Tea Co Ltd HL 1923
The House looked at the effect of rescission of a contract: ‘It was, however, argued before your Lordships that . . the old contracts were discharged because a varied contract is not the old contract, and as you cannot have a new and varied contract . .
Cited – Jagdeo Sookraj v Buddhu Samaroo PC 12-Oct-2004
PC (Trinidad and Tobago) Each party claimed to have entered into a contract to purchase the same land. It was contended that one contract had been rescinded and replaced by another. The issue was whether this . .
Cited – United Dominions Corporation (Jamaica) Ltd v Shoucair PC 1969
(Jamaica) A moneylending law required, for the enforceability of a loan bearing interest at more than ten per cent, a written memorandum containing all the terms of the loan with the borrower’s signature. A bank lent money at nine per cent secured . .
Cited – Plevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.219435
