Crawford and Law v Allan Line Steamship Co Ltd: HL 19 Dec 1911

Where a through bill of lading has been signed, inter alios, on behalf of the last carriers, the shipowners, providing that each carrier is only to be liable for damage occurring on his portion of the route, and acknowledging that the goods have been received in good order at the beginning of the transit, and the last carriers have taken no exception to the condition of the goods when handed over to them, they are liable for any damage discovered unless they prove it occurred previously.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, Lord Atkinson, Lord Gorell, and Lord Shaw

Citations:

[1911] UKHL 117, 49 SLR 117

Links:

Bailii

Jurisdiction:

Scotland

Contract, Transport

Updated: 23 May 2022; Ref: scu.619221

Brown v Turner Brightman and Co: HL 30 Oct 1911

A time-charter of a ship contained the following exceptions -‘The owners and charterers shall be mutually absolved from liability in carrying out this contract in so far as they may be hindered or prevented by . . strikes.’ The charterers ordered the ship to the port of N. at a time when to their knowledge a strike was there in operation. Owing to the strike the ship could not obtain a cargo at N. Under the charter-party the charterers could have withdrawn the vessel from the area of the strike and traded with it elsewhere. The charterers refused to pay hire for the period of the ship’s stay at N.
Held that the charterers were not protected by the exception, and were bound to pay the hire.

Judges:

Lord Chancellor (Loreburn), Lords Atkinson, Shaw, and Mersey

Citations:

[1911] UKHL 679

Links:

Bailii

Jurisdiction:

England and Wales

Contract

Updated: 23 May 2022; Ref: scu.619213

Laird and Son v Bank of Scotland and Others: HL 1 Dec 1911

Circumstances in which their Lordships held, following the judgment of the Lord Ordinary who had taken a proof, that certain logs of timber lying in a store had been sufficiently identified and appropriated as belonging to a transferee so as to transfer the property to him.

Judges:

Lord Chancellor (Loreburn), Lord Alverstone, Lord Atkinson, and Lord Shaw

Citations:

[1911] UKHL 95

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 23 May 2022; Ref: scu.619225

Vyse v Wakefield: 1840

The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as might be asked respecting his age, and, in order to enable the plaintiff to ensure his life, and would riot afterward do or permit to be done any act whereby such insurance should be avoided or prejudiced. It then alleged, that the defendant, in part performance of his covenant, did, at the plaintiff’s request, appear at the office of the Rock Life Insurance Company, and did answer certain questions asked of him ; and that the plaintiff insured the defendant’s life with that Company, by a policy containing a proviso, that if the defendant went beyond the limits of Europe, the policy should be null and void : – Breach, that the defendant went beyond the limits of Europe, to wit, to the province of Canada, in North America :- Held, on special demurrer, that the declaration was bad, for not averririg that the defendant had notice that the policy was effective.
Lord Abinger CB said: ‘The rule to be collected from the cases seems to be this, that where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, this notice ought to be given.’

Judges:

Lord Abinger CB

Citations:

[1840] EngR 276, (1840) 6 M and W 442, (1840) 151 ER 485

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoVyse v Wakefield CExC 1840
A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the . .

Cited by:

CitedEdwards v Kumarasamy SC 13-Jul-2016
The claimant sub-tenant had been injured entering the block of apartments. He said that the freeholder was responsible despite no report of the disrepair having been made. The lease excused the landlord from unnotified liability. The parties . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309702

Vyse v Wakefield: CExC 1840

A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the defendant that the policy had been affected was necessary to make the declaration good, arid that the judgment must he affirmed.
Judgment affirmed.

Citations:

[1840] EngR 277, (1840) 7 M and W 126, (1840) 151 ER 706 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See AlsoVyse v Wakefield 1840
The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309703

Davis and Jordan v James: 1770

Citations:

(1770) 5 Burr 2680

Jurisdiction:

England and Wales

Cited by:

CitedAlfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 May 2022; Ref: scu.218903

O Palomo Sa v Turner and Co; Turner and Co v O Palomo Sa: CA 28 Jul 1999

A solicitor’s bill could only be taxed within one year of its delivery, but the common law right to challenge a bill on the grounds that the amount charged was unreasonable could continue after that time limit. The common law right to object to paying more than was reasonable was not displaced by the Act, and could allow a court to tax a bill outside the one year limit.
Evans LJ said: ‘the position apart from the Act is broadly as follows. If the solicitor wishes to be paid and is not in funds he will need to sue and prove that his charges were either expressly agreed or are reasonable charges. If he is in funds and purports to deduct the amount of his bill but the client challenges the deduction, the solicitor will still need to prove that the charges were either expressly agreed or were reasonable charges. The question is whether the client loses these rights to challenge the amount of the bill after the period for taxation has passed . . a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now s. 70 of the 1974 Act has expired. .
Nor do we consider that the solicitor is disadvantaged by the possibility that the client is entitled to have the reasonableness of the charges assessed by the court after the statutory periods for taxation have expired. He can himself claim an order for taxation under s. 70(2), without any time limit, and obtain a form of summary judgment when the taxation certificate is issued . .
We do not see any difficulty in holding that the solicitor’s claim is for a reasonable sum, whether by statute or at common law, and not for a liquidated sum. Again in accordance with general principles, the burden of proving that the sum is reasonable rests upon him. This is supported, if authority is needed, by the judgments in Re Park [Re Park, Cole v. Park (1889) 41 Ch D 326] and Jones and Son v. Whitehouse [[1918] 2 KB 61] . . ‘

Judges:

Evans LJ

Citations:

Times 30-Aug-1999, Gazette 08-Sep-1999, [1999] EWCA Civ 2007, [2000] 1 WLR 37

Links:

Bailii

Statutes:

Solicitors Act 1974 70

Jurisdiction:

England and Wales

Citing:

ApprovedThomas Watts and Co (a Firm) v Smith CA 16-Mar-1998
The court considered the status of an untaxed solicitor’s bill of costs against a client for whom he had acted in defamation proceedings. Sir Richard Scott V-C said: ‘It is a fact that [the client] never entered into any contract to pay the sums as . .

Cited by:

CitedTruex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.84402

Mohammed v Alaga and Co (A Firm): CA 2 Nov 1998

(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the solicitors for a quantum meruit rather than in restitution would stand.

Judges:

Lord Justice Simon Brown, Lord Justice Mantell

Citations:

Times 29-Jul-1999, [1998] EWCA Civ 1654

Statutes:

Solicitors Practice Rules 1990

Jurisdiction:

England and Wales

Citing:

Appeal fromMohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .

Cited by:

Leave to AppealMohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.83793

Modahl v British Athletics Federation: HL 23 Jul 1999

An athlete’s governing body was not in breach of contract to a member athlete by suspending her in accordance with its rules after a positive drug test. It was accepted that the faults in the registration of the drug testing centre with another governing body were not known to the defendants, and would not directly affect the suspension under this contract.

Judges:

Lord Chancellor Lord Nicholls of Birjkenhead Lord Hoffmann Lord Clyde Lord Millett

Citations:

Times 23-Jul-1999, [1999] UKHL 37

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromModahl v British Athletic Federation Limited CA 28-Jul-1997
Lord Woolf MR said: ‘The question of whether a complaint about the conduct of a disciplinary committee gives rise to a remedy in public law or private law or is often difficult to determine. However the complaint in both cases would be based on an . .
Lists of cited by and citing cases may be incomplete.

Contract, Administrative

Updated: 19 May 2022; Ref: scu.83781

Depositors Protection Board v Dalia and Another: ChD 18 Nov 1992

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.

Citations:

Gazette 18-Nov-1992

Statutes:

Banking Act 1987 59(1)(a)

Cited by:

Appeal fromDepositors’ Protection Board v Dalia and Another CA 11-May-1993
The Board was liable to pay compensation claims from equitable assignees of depositors with a failed bank. They were not to be excluded from making claims. . .
At First InstanceDepositors’ Protection Board v Dalia HL 20-May-1994
The House was asked as to the meaning of the word ‘depositor’. Regulations were prayed in aid which were made four years after the date of the enactment.
Held: The protection given by the Depositor Protection Scheme does not extend to . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Financial Services

Updated: 19 May 2022; Ref: scu.79917

British Gas Trading Ltd v Eastern Electricity and Others: QBD 29 Nov 1996

It was not unreasonable to refuse an assignment of a contract where there was a new purpose.

Citations:

Times 29-Nov-1996

Citing:

Appealed toBritish Gas Trading Limited v Eastern Electricity Plc and others CA 18-Dec-1996
. .

Cited by:

Appeal fromBritish Gas Trading Limited v Eastern Electricity Plc and others CA 18-Dec-1996
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.78628

Bank of Scotland v Dunedin Property Investment Co Ltd: OHCS 16 May 1997

The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’.

Citations:

Times 16-May-1997, 1998 SC 657

Citing:

Appealed toBank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .

Cited by:

Appeal fromBank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .
See AlsoThe Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
Lists of cited by and citing cases may be incomplete.

Financial Services, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78161

Bank of Scotland v Dunedin Property Investment Co Ltd: IHCS 24 Sep 1998

Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs.

Judges:

Lord President (Rodger

Citations:

Times 24-Sep-1998, 1998 SC 658

Citing:

Appeal fromBank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .

Cited by:

Appealed toBank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .
CitedAMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
See AlsoThe Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
CitedProfile Software Ltd v Becogent Ltd OHCS 16-Feb-2005
The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78162

Yeoman Credit Ltd v Waragowski: CA 1961

The defendant had paid the initial deposit for and took delivery on hire-purchase terms of a van, but made no monthly hire-purchase instalments. The plaintiff terminated, took possession of the van and sued for hire-purchase arrears and damages. Loss of bargain damages were awarded,
Held: The appeal failed. There was not a mere failure of an obligation to pay money but a wholesale failure by the defendant to perform his contract. Plainly, the plaintiff had terminated for breach and clause 7 of the hire-purchase contract, as to remedies, obliged the defendant inter alia to pay damages for breach where the plaintiff terminated the hiring.

Citations:

[1961] 1 WLR 1124

Jurisdiction:

England and Wales

Cited by:

CitedPhones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.621646

And So To Bed Ltd v Dixon: 2001

The defendants, Mr and Mrs Dixon, were franchisees of an ‘And So To Bed’ shop. The franchise was terminated by the claimant, purportedly under a clause of the franchise agreement which entitled the claimant summarily to terminate the agreement for breach unless rectified within 14 days of notification or for failure to pay franchise licence fees, amongst other grounds. The claimant sued for loss of bargain damages consequent upon its termination, alleging that the agreement had been repudiated by the defendants.
Held: That part of the claim succeeded.
(a) one of the three breaches of contract cited in the termination letter was by nature repudiatory and (b) loss of bargain damages were therefore recoverable although termination was expressed to be under the express contractual term. At [35], Mr Donaldson QC stated, obiter, that on the Boston Deep Sea Fishing principle there was no reason why a termination letter should not be treated as an ‘acceptance’ of a repudiatory breach other than any such breach as was inherent in the factual basis on which the contractual power was stated to be exercised.

Judges:

Donaldson QC

Citations:

[2001] FSR 47

Jurisdiction:

England and Wales

Cited by:

CitedPhones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.621647

Minister for Supply and Development v Servicemen’s Co-operative Joinery Manufacturers Ltd: 26 Apr 1951

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.

Citations:

(1951) 82 CLR 621, [1951] HCA 15

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618136

Stein Forbes and Co v County Tailoring Co: 1916

Atkin J said: ‘I doubt whether goods are appropriated unconditionally if the seller does not mean the buyer to have them unless he pays for them.’ The overriding question is whether the intention of the parties appears in the course of the making and fulfilment of the contract.

Judges:

Atkin J

Citations:

(1916) 115 LT 215, (1917) 86 LJKB 448

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618130

Armour v Thyssen Edelstahlwerke AG: HL 1990

The defendant supplied steel to a manufacturing company under a contract which contained a retention of title clause. The contract was governed by German law. The plaintiffs, who had been appointed as receivers, brought proceedings against the supplier seeking a declaration that property in the steel had passed to the company, despite the fact that payment had not been made. The suppliers argued that the retention of title clause, which was valid under German law, was effective to prevent title passing, either because the steel in question had been in Germany when the contract had been entered into so that German law was the lex situs, or because the passing of title was governed by German law as the proper law of the contract. The receivers agreed that the passing of property was governed by the lex situs, but argued that, once the goods reached Scotland, Scots law governed the question and that the retention of title clause was ineffective under Scots law. They also argued that cutting the steel into strips in preparation for use in manufacture had created a new species of goods, title to which vested in the company.

The House considered a retention of title clause in the context of whether a stock of steel was held as a security.
Held: Clauses which provide that title to goods supplied does not pass to a buyer until monies on all account have been paid are effective to retain title. The decision was made despite the fact that such clauses do in a sense give the sell security for unpaid debts.
Lord Jauncey said: ‘a right in security is a right over property given by a debtor to a creditor whereby the latter in the event of the debtor’s failure, acquires priority over the property against the general body of creditors of the debtor . . which right must be retransferred to him upon payment of the debt.’

Judges:

Lord Jauncey

Citations:

[1991] 2 AC 339, [1990] 3 WLR 810, [1990] 3 All ER 481, [1990] SLT 891

Jurisdiction:

Scotland

Citing:

At OHCSArmour v Thyssen Edelstahlwerke AG OHCS 1986
. .
At IHCSArmour v Thyssen Edelstahlwerke AG 1989
. .

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617939

Armour v Thyssen Edelstahlwerke AG: 1989

Citations:

1989 SLT 182

Jurisdiction:

Scotland

Citing:

Appeal from OHCSArmour v Thyssen Edelstahlwerke AG OHCS 1986
. .

Cited by:

At IHCSArmour v Thyssen Edelstahlwerke AG HL 1990
The defendant supplied steel to a manufacturing company under a contract which contained a retention of title clause. The contract was governed by German law. The plaintiffs, who had been appointed as receivers, brought proceedings against the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617940

Plaimar Ltd v Waters Trading Co Ltd: 23 Nov 1945

(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.’

Judges:

Rich, Dixon and McTiernan JJ

Citations:

(1945) 72 CLR 304, [1945] HCA 34

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618132

Clough Mill Ltd v Martin: 1984

Citations:

[1984] 1 WLR 1067, (1984) 128 SJ 564, [1984] 1 All ER 721, (1984) LS Gaz 2375

Jurisdiction:

England and Wales

Cited by:

Appeal fromClough Mill Ltd v Martin CA 1984
The plaintiff had supplied yarn to a company H on terms that the goods were to remain its property until paid for in full, although H was granted the power to sell the goods or use them for the purpose of manufacturing products. The terms also . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617859

Chaigley Farms Ltd v Crawford, Kaye and Grayshire Ltd: 1996

The Court was asked as to the title to livestock delivered by the plaintiff farmers to an abattoir under a contract containing a retention of title clause and title to the carcasses following slaughter. One question which arose was whether the slaughter of the animals and dressing of the carcasses extinguished the plaintiffs’ title because it created a new commodity.
Held: Garland J. considered that there was an essential difference between a live animal and a dead one, particularly one from which all the parts which were not to be sold on as butchers’ meat had been removed.

Judges:

Garland J

Citations:

[1996] BCC 957

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617942

Harry and Garry Ltd v Jariwalla: CA 1988

English buyers, Harry and Garry, had under contracts of sale received a quantity of sarees which they found defective and in respect of which they had not yet accepted the relevant bills of exchange, by reference to which, it appeared, the Indian sellers, the Jariwallas, had however already succeeded in raising some monies in India. Harry and Garry agreed to accept the bills, so acquiring property in the sarees, while the Jariwallas agreed either to arrange the cancellation of the bills or to take back and pay for the sarees. Under this agreement, 2,494 sarees were then selected as sarees which the Jariwallas would, as they did, take back physically, and it was agreed that the Jariwallas would pay pounds 46,763.45 for such sarees, with property being retained by Harry and Garry until this full amount was paid. Through a Mr Shah, the Jariwallas sold some 411 of these sarees, evidently with the consent of Harry and Garry despite the reservation of title. Harry and Garry sued for the full pounds 46,763.45 agreed to be paid.
In the court below, Judge Harris had seen the contract as being one of sale, and on that basis held that, since the circumstances did not fall within section 49(2), a claim for the price was precluded.
Held: Harry and Garry’s appeal was allowed. Kerr LJ noted that section 49(1) was in terms inapplicable, because of the reservation of title, but the judge’s approach: ”It would be ironical if that were the correct analysis. One would be driven to the conclusion that although these goods had been delivered and had been accepted, the only remedy open to the plaintiffs, if indeed they were sellers of these goods, would apparently have been a claim for damages for non-acceptance under section 50, there being no other provision of the Act which would have given the plaintiffs any remedy. With all due respect to the judge, no doubt influenced as he was by the complexity of this case and the arguments which were addressed to him, I cannot agree with that analysis for two reasons. First, in my view this was not a contract for the sale of goods within the terms of the 1979 Act. It was not, to quote section 2(1) of the Act, ‘a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price’. Like many other contracts in complex situations, this was a sui generis transaction. In effect, what the Jariwallas agreed was that if the bills of exchange were accepted, which was their great concern, they would either have them cancelled or they would take the goods back and pay for them.

When it then came to the specific agreement about the 2,494 selected sarees, I think the nature of the agreement was that in consideration of the plaintiffs’ allowing them to take that consignment away and seeking to dispose of it as agents for the plaintiffs, who remained the owners of it, they agreed again either to perform the first part of the option, to have the bills of exchange cancelled at any rate to the extent of the value of those selected goods, or to pay the sum of pounds 46,763.45p. That was the nature of the agreement. Taking it on its own or taking it, as I think one should, as part of the agreement made on 23 December, I do not think it was a contract for the sale of goods to which the Act applied.’

Judges:

Kerr LJ

Citations:

[1988] WL 1608652

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618129

Muller, Maclean and Co v Leslie and Anderson: 1921

Citations:

(1921) 8 Lloyd’s List Law Rep 328

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.618131

Borden (UK) Ltd v Scottish Timber Products Ltd: CA 1979

The plaintiff sold a quantity of resin to the defendant for use in the manufacture of chipboard. The contract contained a reservation of title clause, but both parties contemplated that the resin would be used in the process of production before it had been paid for, as indeed occurred. All those involved in that case treated the contract as one for the sale of goods and therefore as governed by the Sale of Goods Act.
Held: Bridge LJ described the contract as ‘essentially one of sale and purchase, subject only to the reservation of title clause, whatever its effect may have been.’ However, he rejected the sellers’ argument that the contract was simply one of bailment. The only question for decision was whether the supplier had obtained title to the chipboard into which the resin had been incorporated. The court held that it had not.
The resin ceased to exist when it was incorporated into the new product and property in it ceased to exist at the same time, because it is not possible to own something that does not exist

Citations:

[1981] 1 Ch 25, [1979] 3 WLR 672, (1979) 123 SJ 688, [1979] 3 All ER 961, [1980] 1 Lloyds Rep 160

Statutes:

Sale of Goods Act 1979 2

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc Product Shipping and Trading SA v OW Bunker Malta Ltd and Others CA 22-Oct-2015
The oil owners had contracted for its transport with OWBM aboard Res Cogitans under standard terms which would allow the captain to use the oil for navigation before transfer of the title in the oil. The court was now asked whether the agreement . .
CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.617853

Foo Jong Peng and others v Phua Kiah Mai and another: 8 Oct 2012

Supreme Court of Singapore – Court of Appeal) The court refused to follow the reasoning in Belize at least in so far as ‘it suggest[ed] that the traditional ‘business efficacy’ and ‘officious bystander’ tests are not central to the implication of terms’

Citations:

[2012] SGCA 55

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

RephrasedAttorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .

Cited by:

CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.616752

Woolf v Collis Removal Service: CA 1947

Claims in tort with a nexus to the contract can be within phrases such as ‘in connection with’ in the context of arbitration clauses

Judges:

Ackner LJ

Citations:

[1948] 1 KB 11, [1947] 2 All ER 260

Cited by:

CitedAspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.567849

Potters v Loppert: ChD 1973

The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors. A pre-contract deposit paid by a prospective purchaser was received subject to an obligation to repay the money on request unless and until a contract was concluded. Material considerations included that until the event was known the recipient was to keep the money in his own hands, but if the recipient employed the money he was entitled to any profit and answerable for any loss.
Sir John Pennycuick V-C said: ‘I propose, in the first place, to consider the law in relation to contract deposits. Looking at the position apart from authority, one might perhaps at first sight rather expect that where any property is placed in medio in the hands of a third party to await an event as between two other parties the third party receives that property as trustee, and that the property and the investments for the time being representing it represent the trust estate. Where the property is something other than money – for example, an investment – that must, in the nature of things, almost certainly be the position. But where the property is money – that is, cash or a cheque resulting in a bank credit – this is by no means necessarily so. Certainly the money may be paid to the third party as trustee, but equally it may be paid to him as principal upon a contractual or quasi-contractual obligation to pay the like sum to one or other of the parties according to the event. It must depend upon the intention of the parties, to be derived from all the circumstances, including any written documents, in which capacity the third party receives the money.’

Judges:

Sir John Pennycuick V-C

Citations:

[1973] Ch 399, [1973] 1 All ER 658

Cited by:

CitedRockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
CitedManzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 May 2022; Ref: scu.550154

Stour Valley Builders (a Firm) v Stuart and Another: CA 21 Dec 1992

The plaintiff builders had invoiced and pursued a revised account of andpound;10,163 after the defendants had disputed a number of items. The defendants ultimately offered a cheque in the sum of andpound;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.’

Judges:

Lloyd LJ

Citations:

Times 22-Feb-1993, (1994) 2 Lloyds Reports 13, Independent 09-Feb-1993, [2003] TCLR 8

Jurisdiction:

England and Wales

Citing:

CitedHirachand Punamchand v Temple CA 1911
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .
CitedDay v McLea CA 1889
The fact alone that a person receives and accepts a cheque offered in full and final settlement of the person’s claim for a higher sum does not create an accord and satisfaction. There is only an accord if there is an agreement whereby the person . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.521152

Chantrey Martin v Martin: CA 1953

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’

Citations:

[1953] 2 QB 286

Cited by:

CitedFairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .
CitedPepper (UK) Ltd (T/A Engage Credit) v Fox (P/A Barry Fox, Solicitors) ChNI 14-Jan-2016
Application by Pepper (UK) Ltd t/a Engage Credit against Emma Jane Fox practising as Barry Fox, Solicitors for the delivery up of all papers, documents and title deeds in the possession and custody of the Solicitors and belonging to the plaintiff . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.515261

Slade’s Case: 1598

The parties had ageed for the sale of wheat and rye crops. Slade complained as to the breach, seeking to bring an action in assumpsit. The defendant denied the existence of a contract.
Held: A jury returned a special verdict, finding Defendant paid Plaintiff for the wheat and the rye and that there was no other promises made between Plaintiff and Defendant other than the bargain in question. The issue was presented to the Justices and Barons to resolve differences between the courts regarding the issue. Where the parties has agreed for a thing, provided one had carried his duties, the other could be compelled by an action in assumpsit without formal requirements for actions on the contract

Citations:

[1598] EngR 39, (1598) 4 Co Rep 92, (1598) 76 ER 1074, [1598] EngR 40, (1598) 4 Co Rep 91, (1598) 76 ER 1072

Links:

Commonlii, Commonlii

Contract, Litigation Practice

Updated: 18 May 2022; Ref: scu.427556

Kingscroft Insurance Company Limited, Walbrook Insurance Company Limited etc v The Nissan Fire and Marine Insurance Company Limited (No 2): 1999

An expert witness: ‘can, and indeed should inform the court of any aspects of the commercial background which have a bearing on the construction of the contract and explain their relevance’.

Citations:

[1999] Lloyds Insurance and Reinsurance Law Reports 603

Cited by:

CitedCrema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 18 May 2022; Ref: scu.430073

In re Standard Manufacturing Co: CA 1891

Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures ‘issued by any mortgage, loan, or other incorporated company’. Nor were debentures bills of sale to which the Act of 1878 applied and company debentures themselves were not within the 1878 Act. The avowed design of the legislature had been to strike at frauds perpetrated upon creditors by secret bills of sale as the preamble to the Bills of Sale Act 1854 made plain: ‘Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors.’
The 1862 Act provided for the registration by companies of the mortgages and charges specifically affecting their property and accordingly company debentures could hardly be described as ‘secret documents’.
The court concluded: ‘mortgages or charges of any incorporated company for the registration of which a statutory provision had already been made by the Companies Clauses Act 1845 or the Companies Act 1862 are not bills of sale within the Bills of Sale Act 1878.’

Citations:

[1891] 1 Ch 627

Statutes:

Bills of Sales Act (1878) Amendment Act 1882, Bills of Sales Act 1878, Bills of Sale Act 1854, Companies Act 1862, Companies Clauses Act 1845

Citing:

AppliedRead v Joannon 1890
The court considered the application of the 1878 Act.
Held: Where there are a series of Acts dealing with a topic and with similar names, the words ‘this Act’ in expressions such as ‘in this Act’ or ‘under this Act’ must be construed to mean . .

Cited by:

CitedClark v Balm, Hill and Co 1908
A company registered in Guernsey issued debentures creating floating charges over real and personal property in England. The court was asked whether the debentures ought to be deemed to be within the Bills of Sales Acts and so ought to have been . .
CitedOnline Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
DistinguishedGreat Northern Railway Co v Cole Co-Operative Society 1896
A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally . .
CitedN V Slavenburg’s Bank v Intercontinental Natural Resources Ltd ChD 1980
The Bermudan company defendant had assigned stocks as a security. The security was not registered, and nor did the company have any registration within the UK. It was not the practice of the Registrar of Companies to accept particulars of charges . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 18 May 2022; Ref: scu.414890

– And Clatch: 1685

Debt on obligation of 600l. The defendant pleads that condition was to pay a less sum by a day, and that before the day he paied in satisfaction, which per Curiam is an ill plea, having not demanded oyer of the condition.
The plaintiff replied, demanding oyer that the condition was to pay a less sum by a day, and the defendant demurs without shewing that the money was paied at the day, which per Curiam is ill; and judgment must be against the plaintiff. Sed adjornatur.

Citations:

[1685] EngR 81, (1685) 3 Keb 708, (1685) 84 ER 965 (D)

Links:

Commonlii

Litigation Practice, Contract

Updated: 18 May 2022; Ref: scu.396856

Beaumont v Weldon: 1726

In an assumpsit the plaintiff declared upon several promises, three whereof were for finding of lodging for so many mouths for the wife of the plaintiff at his request, and the last promise was an indebitat. for goods and wares sold to the defendant himself.

Citations:

[1726] EngR 248, (1726) 2 Vent 155, (1726) 86 ER 364 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 18 May 2022; Ref: scu.378828

Edwards v Carter: HL 1893

If an infant choses to repudiate a disposition, he must do so within a reasonable time after coming of age.

Citations:

[1893] AC 361

Jurisdiction:

England and Wales

Cited by:

CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Lists of cited by and citing cases may be incomplete.

Children, Contract

Updated: 18 May 2022; Ref: scu.373857

Atkinson And Others, Assignees Of Sleddon, v Bell And Others: 1828

A. having a patent for certain spinning machinery, received an order
from B. to have some spinning frames made for him. A. employed C. to make
the machines for B., and informed the fatter that he had so done. After the
machines had been completed, A. ordered them to be altered. They were afterwards completed according to this new order, and packed up in boxes for B., and
C. informed B. that they were ready, but he refused to accept them : Held, that
C. could not recover the price from B. in an action for goods bargained and sold,
or for work and labour, and materials.

Citations:

[1828] EngR 12, (1828) 8 B and C 277, (1828) 108 ER 1046

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedPST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.322776

Bromage And Another v Prosser: 1825

Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common acceptation of the term means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse.’

Citations:

[1825] EngR 42, (1825) 4 B and C 247, (1825) 107 ER 1051

Links:

Commonlii

Citing:

See AlsoBromage and Another v Prosser 20-Aug-1824
Semble, that malice is necessary to ground an action for words ; and that if words be proved to be spoken bona fide and without malice, no action lies for the speaking of them, though they be false and actionable in themselves; and though injury . .

Cited by:

See AlsoBromage And Another v Prosser 2-Jun-1825
Thls case having been again argued, by J L Adolphus, for the plaintiffs, and Campbell, for the defendants, the Court now gave Judgment on the motion for a new trial.
Abbot CJ (after stating the nature of the case) — On the general question, . .
CitedRhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 18 May 2022; Ref: scu.326133

Schaefer v Schuman: PC 1972

(New South Wales – Australia) A promise to leave the property had been performed, and the issue was as to the relevance, if any, and the effect of an earier promise when the value of the devise was sought to be reduced by an order by way of financial provision under the New South Wales Family Provision on Inheritance legislation. The rights of the devisee were properly founded in contract. Held (majority, Lord Simon of Glaisdale dissenting on this as on the major point in the case). The case was indeed properly founded in contract, and, that being so, it was immune from the effect of an order under the family provision legislation.

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

Lohmann v Rougemont And Another: 24 Jan 1840

Defendants, merchants in London, received orders from G. at St. Petersburgh for a quantity of Havannah sugars : that order was revoked, and another given for Brazil sugars, for the amount of which Defendants were to draw on Plaintiff, G.’s agent at Hamburgh, by a bill at three months : Plaintiff accepted the bill ; wrote to G for instructions because Defendants had been accredited for Havannah sugars and not Brazil ; and then to Defendants to say that he had accepted the bill under their guaranty for the present, as he had not received the accreditive : G. then wrote to Plaintiff, giving him credit for the Brazil sugar, and requesting him to release Defendants from their guaranty : G. failed before the acceptance became due : Held, that Plaintiff was liable to Defendants on this acceptance, notwithstanding Defendants, after G.’s failure, wrote to Plaintiff,–‘ We have received from G. the assurance that he has arranged with you the needful for the protection of the draft: we reserve to ourselves any advantage from the insurance of the goods ; if you have written to G. that you have not honored the draft, we cannot consider your acceptance as valid in any other way than on account of G.’

Citations:

[1840] EngR 357, (1840) 6 Bing NC 253, (1840) 133 ER 100

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 18 May 2022; Ref: scu.309783

Avery v Bowden (2): 1856

Citations:

[1856] EngR 2 (B), (1856) 6 El and Bl 972

Links:

Commonlii

Citing:

See AlsoGeorge Avery v Samuel Wilson Bowden 26-Nov-1855
The parties agreed a charterparty involving the ship arriving at a port and taking 45 days to unload and load up before leaving. The defendant ordered the boat to leave early and without the cargo. He pleaded that, war having been declared between . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.290758

Avery v Bowden: 1856

Citations:

[1856] EngR 3, (1856) 6 El and Bl 962, (1856) 119 ER 1122

Links:

Commonlii

Citing:

See AlsoGeorge Avery v Samuel Wilson Bowden 26-Nov-1855
The parties agreed a charterparty involving the ship arriving at a port and taking 45 days to unload and load up before leaving. The defendant ordered the boat to leave early and without the cargo. He pleaded that, war having been declared between . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.290759

Lake v Brutton: 9 Jul 1856

Where a mortgage was taken in part in respect of a sum for which the mortgagee represented himself to the mortgagor as being liable as a surety for the latter, and such representation was erroneous, to the knowledge of the mortgagee : Held, that to that extent the security could not be supported.
A debtor deposited a policy with his creditor as a security. Afterwards the debtor; with a surety who did not know of the deposit, covenantal with the creditor for payment of the debt, and contemporaneously the debtor executed a deed of counter security to the surety, neither deed referring to the deposit of the policy. Subsequently the debtor assigned the policy to the creditor as a security. Held, that the surety, on paying the debt, was entitled to the policy.

Citations:

[1856] EngR 763 (B), (1856) 8 De G M and G 440

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Contract

Updated: 18 May 2022; Ref: scu.291518

Clark v Malpas: 2 Jul 1862

A purchase from an illiterate poor man, who was ill at the time, set aside, the price being inadequate, the vendor having no professorial advice, and the transaction being completed in great haste and on terms unduly disadvantageous to him. The Master of the Rolls declared the conveyance void and directed it to be cancelled, but declined to direct a reconveyance:
Held: on appeal, that the proper form of decree in such cases is not to declare the deed void, but to direct it to be set aside and order a reconveyance.

Citations:

[1862] EngR 876, (1862) 4 De G F and J 401, (1862) 45 ER 1238

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoClark v Malpas 25-Apr-1862
The court found a contract to be an unconscionable bargain where a poor and illiterate man was induced to enter into a transaction of an unusual nature, without proper independent advice, and in great haste; and the resulting transaction has been, . .

Cited by:

See AlsoClark v Malpas 13-Jan-1863
The cost of bridging up witnesses for cross-examination in Court allowed, in a taxation between party and party, although they had not been actually cross-examined. Shorthand writer’s notes of the Cross-examination of witnesses in Court allowed, but . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.287042

Crane v The London Dock Company: 28 Apr 1864

A sale by sample is riot entitled to the privileges of a sale in market overt, 2 Quaere whether a purchase of goods made in a market, by a shopkeeper, of goods brought to his shop is so entitled?

Citations:

[1864] EngR 406, (1864) 5 B and S 313, (1864) 122 ER 847

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 18 May 2022; Ref: scu.282120

Greaves and Co (Contractors) Ltd v Baynham Meikle and Partners: CA 1975

Consultant engineers were instructed to design a warehouse, the first floor of which, as they knew, was to be used for storing drums of oil that would be moved around by fork-lift trucks. The warehouse was built to the engineers’ design but after a few months’ use the first floor began to crack because it was not strong enough to bear the loads imposed on it. The main contractor, by whom the engineers had been employed, made a claim against them alleging that they had impliedly warranted that their design would produce a building fit for its intended use.
Held: Despite recognising that a professional man does not normally undertake an unqualified obligation to produce the desired result, the exchanges between the parties were such as to give rise to an implied term that the warehouse as designed would be fit for the purpose for which it was required. Those who provide professional services do not generally give an unqualified undertaking to produce the desired result.
Lord Denning MR said: ‘Apply this to the employment of a professional man. The law does not usually imply a warranty that he will achieve the desired result, but only a term that he will use reasonable care and skill. The surgeon does not warrant that he will cure the patient. Nor does the solicitor warrant that he will win the case.’

Judges:

Lord Denning MR

Citations:

[1975] 3 All ER 99, [1975] 1 WLR 1095, [1975] 2 Lloyds Rep 325

Citing:

CitedSamuels v Davis 1943
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. . .

Cited by:

CitedPlatform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
CitedThake v Maurice CA 1986
A vasectomy was performed. The husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. The first instance court found no reason why public policy prevented the recovery . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 May 2022; Ref: scu.279928

Harlow and Jones v Panex (International) Ltd: ChD 1967

The sellers claimed under a sale contract against buyers who had refused to accept goods. By reason of the buyer’s non-acceptance of the goods, the sellers had incurred storage charges to their own suppliers with whom they had entered into an agreement which effectively made recovery of the storage charges contingent upon recovery of the storage charges from the buyers.
Rosklii J said: ‘Next there are the storage charges . . [Counsel] correctly summarised the final position by saying that the bargain was that the Russian sellers would only claim against the plaintiffs if the plaintiffs could recover those charges from the defendants in this action. [Counsel] argued that an arrangement of that kind barred the plaintiffs recovering in this action. For my part I am unable to see why. The plaintiffs have – and this was not contested – apart from any agreement with the Russian sellers, a perfectly good claim for these storage charges. Why the plaintiffs should not make an arrangement for their own sellers, ‘we will claim these and hand the proceeds over to you if we recover provided you let us off if we do not’, I am unable to see. Nor do I see why the existence of such an arrangement should afford the defendants a defence which they would not otherwise possess. It seems to me an eminently sensible commercial arrangement . . ‘

Judges:

Rosklii J

Citations:

[1967] 2 Lloyd’s Rep 509

Cited by:

CitedGiles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract, Damages

Updated: 18 May 2022; Ref: scu.272902

Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd: PC 1959

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 . . ‘

Judges:

Lord Denning

Citations:

[1959] AC 576, [1959] 3 All ER 182, [1959] 2 Lloyds Rep 114

Cited by:

MentionedGeorge Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 17 May 2022; Ref: scu.266866

Charnock v Liverpool Corporation and Kirbys (Commercial) Ltd: CA 1968

When an insured Vehicle was sent for repairs with the assent of an insurer, there were two separate contracts which arose in respect of the repairs. The first contract was between the insurer and the repairer that the insurer would pay for the repairs. The second contract was between the insured and the repairer that the repairs would be carried out by the repairer with reasonable care and expedition. Where the contract does not specify the time within which works are to be completed a term will be implied which binds the contractor to complete within a reasonable time.
Harman LJ said: ‘the judge held that the repairers were liable because they had impliedly contracted with the plaintiff to do the work within a reasonable time and, not having done so, they were in breach of their contract in that respect.
The fact that the insurance company will indemnify the owner is well known in all insurance cases to both parties. The practice has grown up that the insurance company shall agree the sum for which they will stand surety and a contract is very often made by the repairer with the insurance company. Let it be so in this case. That does not in my view at all rule out the existence of a contract between the person who owns the car and the repairers. The owner takes the car in to the repairers and he asks them to repair it, at whatever cost the insurance company will be willing to go to, and everybody knows that the insurance company will within that limit pay. Whether there is any obligation on the owner himself to pay if the insurance company does not is another matter; but I cannot see why there is, as regards the owner, not a contract on which the repairers are liable first, if they do not do the work with reasonable skill and secondly, if they do notdo it within a reasonable time; and it is on that contract that the present case turns.
The court I think, was inclined to take the view that the judge, who held that there were two contracts, one between the insurers and the repairers and one between the plaintiff and the repairers, was clearly right.
It seems to me that it is quite reasonable to leave standing the view that there was a contract between the repairers and the insurance company and that the only person liable to pay on that
was the insurance company.’

Judges:

Salmon, Harmon LJJ

Citations:

[1968] 1 WLR 1498, [1968] 3 All ER 473

Jurisdiction:

England and Wales

Insurance, Contract

Updated: 17 May 2022; Ref: scu.259332

W. Angliss v Peninsular and Oriental Steam Navigation Co: 1927

Wright J held: ‘The Carriage of Goods by Sea Acts have introduced a new and obligatory code of responsibilities and immunities as affecting carriers under bills of lading in place of the former rule that carriers by sea, while generally under the liability of common carriers, were free by contract to vary and limit their liabilities. In particular, the Acts have expressly abolished the previous absolute obligation to provide a seaworthy ship and have substituted an obligation to use due diligence to that effect. The carrier may not be the owner of the ship, but merely the charterer; he may not have contracted for the building of the ship, but merely have purchased her, possibly years after she has been built. In the two latter cases the builders and their men cannot possibly be deemed to have been the agents or servants of the carrier and it is illogical that there should be such difference in the carrier’s obligations merely because he has bought the ship by the method of contracting with the builders to build it for him. In addition, if the carrier were held liable for the bad workmanship of the builders’ men, he might equally be held liable for bad workmanship by the men employed by the various sub-contractors who supply material for the builders, such as steel-workers in furnaces and rolling mills, or who supply special articles such as castings, pumps or proprietary machines, which would involve an almost unlimited retrogression.’

Judges:

Wright J

Citations:

[1927] 1 KB 456

Cited by:

CitedParsons Corporation and others v CV Scheepvaartonderneming ‘Happy Ranger’ ComC 9-Feb-2006
A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 17 May 2022; Ref: scu.252502

National Provincial Bank v Jackson: CA 1886

Two sisters executed deeds relating to their property, but did not read them first or having them read out to them or explained. They said that they had relied on their brother, a solicitor.
Held: Cotton LJ said that they could not have been said to have been guilty of negligence in so doing, but their plea of non est factum failed as they knew that the deeds they signed dealt in some way with their houses.

Judges:

Cotton LJ

Citations:

[1886] 33 Ch D 1

Cited by:

CitedSaunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 May 2022; Ref: scu.253152

Global Plant Ltd v Secretary of State for Social Services: 1972

Lord Widgery said: ‘One must not overlook that the intention of the parties was that the relationship should be that of an independent contractor, and although the parties cannot by intention make a transaction into something which it is not, yet it is recognised that such intention is a factor for consideration in these cases.’

Judges:

Lord Widgery

Citations:

[1972] 1 QBD 139

Jurisdiction:

England and Wales

Cited by:

CitedMassey v Crown Life Insurance Company CA 4-Nov-1977
Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment

Updated: 17 May 2022; Ref: scu.250994

Miller v Beale: 1879

Citations:

(1879) 27 WR 403

Cited by:

CitedBecerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 May 2022; Ref: scu.245316

Burton v Pinkerton: 1867

The Plaintiff agreed to serve on the defendant’s ship for twelve months, but left it when the Defendant berthed in a Peruvian port with a cargo which included ammunition, even though Peru was at war with Spain (”two powers at peace with England’). The Plaintiff regarded the proposed voyage as both illegal and more dangerous than he anticipated at the time of entering into his contract. He was imprisoned for some days as a ‘Peruvian deserter” and upon his release discovered that the ship had gone, still with some of his clothes on board. The jury gave damages for both the imprisonment and the clothing.
Held: Both heads of damage were too remote. Baron Bramwell: ‘It is true that in one sense the defendant’s conduct caused the imprisonment: but for that, no doubt, the plaintiff would not have been imprisoned. That, however, is not enough. Suppose, for instance, the plaintiff had met robbers whilst ashore, and been injured by them, he certainly could have recovered nothing from the defendant for such injury, yet the defendant might, in that case also, be said to have caused the damage. According to the ordinary rule, damage to be recoverable by a plaintiff must inevitably flow from the tortious act of the defendant. It must be caused by him as the causa causans, and this imprisonment was not so caused’. The Plaintiff could only recover for lost wages and possibly something for inconvenience. A new trial was ordered as it was impossible to disentangle how much the jury had included under each of the heads.

Judges:

Baron Bramwell, Baron Martin and Baron Channell

Citations:

(1867) LR 2 Ex 340

Jurisdiction:

England and Wales

Cited by:

CitedWiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 17 May 2022; Ref: scu.243286

Watson-Towers Ltd v McPhail: 1986

The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer’s evidence consisted of a letter from the defender making an offer expressed to be without prejudice but which attached a schedule listing the goods in its possession.
Held: The schedule was admissible because it was, on the true construction of the letter, not a ‘hypothetical admission or concession for the purpose of securing a settlement’ but a statement of fact.

Judges:

Lord Wylie

Citations:

1986 SLT 617

Cited by:

FollowedDaks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Limitation

Updated: 17 May 2022; Ref: scu.243123

Wolmershausen v Gullick: 1893

Claim for contribution between co-securities. Wright J reviewed the development of the entitlement to contribution from Justinian’s statement of it, through its application by the custom of the City of London in the time of Queen Elizabeth to the time of his judgment.

Judges:

Wright J

Citations:

[1893] 2 Ch 514

Cited by:

MentionedAer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
CitedWimpey (George) Co Ltd v British Overseas Airways Corporation HL 1954
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if . .
Lists of cited by and citing cases may be incomplete.

Limitation, Damages, Contract

Updated: 17 May 2022; Ref: scu.238752

Brown v Gould: 1972

A lease of business premises contained an option to renew the lease and provided for any such new lease: ‘to be for a further term of 21 years at a rent to be fixed having regard to the market value of the premises at the time of exercising this option taking into account to the advantage of the tenant any increased value of such premises attributable to structural improvements made by the tenant.’ Where an option was expressed to be exercisable at a price to be determined according to some stated formula, without any effective machinery being in terms provided for working out that formula, the Court had jurisdiction to determine it. The Court was reluctant to hold void for uncertainty any provision that was intended to have legal effect, and where it was accepted that the option was intended to have business efficacy.
Megarry J said: ‘No doubt there may be cases in which the draftsman’s ineptitude will succeed in defeating the court’s efforts to find a meaning for the provision in question; but only if the court is driven to it will it be held that a provision is void for uncertainty’.

Judges:

Megarry J

Citations:

[1972] Ch 53

Jurisdiction:

England and Wales

Cited by:

CitedLeeds Rugby Ltd v Harris and Bradford Bulls Holdings Limited QBD 20-Jul-2005
The claimant sought damages from the defendants saying that the second defendant had induced a breach of contract by the first when he left to play rugby for the second defendant.
Held: The contract could not be said to be void as an agreement . .
CitedWestvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 17 May 2022; Ref: scu.229005

Telfair Shipping Operation SA v Inersea Carriers SA, the Caroline P: 1984

A claim was made in contract based on an indemnity.
Held: The claim was not time-barred. Time normally begins to run against a claim on a general indemnity only from the moment when the liability of the indemnified is accepted by him or determined against him by the court, because, in the absence of a provision to the contrary, an indemnity cannot be called on by the indemnified unless and until the indemnified has paid the money in respect of which he claims the indemnity.

Judges:

Neill J

Citations:

[1985] 1 WLR 553, [1984] 2 Lloyd’s Rep 266

Citing:

DistinguishedForster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .

Cited by:

CitedThe Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
MentionedAer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 16 May 2022; Ref: scu.221432

Bottin (International) Investments Ltd v Venson Group Plcgrant Scriven Clive Lawson Smith: CA 22 Oct 2004

Under a share purchase agreement, ‘notice of the claim had to be made in writing ‘specifying such details of the event or circumstances giving rise to such claim as are available to the investor and an estimate (if capable of preparation by the investor) of the total amount of the warrantor’s liabilities therefor claimed.’

Judges:

Lord Justice Peter Gibson

Citations:

[2003] EWCA Civ 1368

Jurisdiction:

England and Wales

Citing:

Appeal fromBottin (International) Investments Limited v Venson Group Plc Grant Scriven Clive Lawson Smith ChD 3-Feb-2004
. .
CitedThomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

CitedForrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 16 May 2022; Ref: scu.218851

Rutter v Palmer: 1922

A party is not exempted by his contract from his own negligence ‘unless adequate words are used.’
Scrutton LJ said: ‘For the present purposes a rougher test will serve. In construing an exemption clause certain general rules may be applied: First the defendant is not exempted from liability for the negligence of his servants unless adequate words are used; secondly, the liability of the defendant apart from the exempting words must be ascertained; then the particular clause in question must be considered; and if the only liability of the party pleading the exemption is a liability for negligence, the clause will more readily operate to exempt him.”

Judges:

Scrutton LJ

Citations:

[1922] All ER Rep 367, [1922] 2 KB 87, [1922] 91 LJKB 657, [1922] 127 LT 419

Cited by:

CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
AppliedAlderslade v Hendon Laundry Ltd CA 1945
Exclusion allowed where only one possible cause of
Articles were sent by the plaintiff to the defendants’ laundry to be washed, and they were lost. In an action by the plaintiff against the defendants for damages, the defendants relied on the following condition to limit their liability: ‘The . .
CitedHollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Lists of cited by and citing cases may be incomplete.

Negligence, Contract

Updated: 16 May 2022; Ref: scu.216366

Walker v Giles: 1848

The court sought to reconcile conflicting parts of a deed.
Wilde CJ said: ‘And as the different parts of the deed are inconsistent with each other, the question is, to which part effect ought to be given. There is no doubt, that, applying the approved rules of construction to this instrument, effect ought to be given to that part which is calculated to carry into effect the real intention, and that part which would defeat it should be rejected.’

Judges:

Wilde CJ

Citations:

(1848) 6 CB 662, [1848] EngR 20, (1848) 136 ER 1407

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedTaylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
CitedArnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 16 May 2022; Ref: scu.211394

Bartlett v Sidney Marcus Ltd: 1965

A dealer will be bound by the implied condition in section 14(3) that a vehicle sold will be reasonably fit for the purpose as a vehicle to drive along the road.

Judges:

Lord Denning MR

Citations:

[1965] 1 WLR 1013

Statutes:

Sale of Goods Act 1979 14(3)

Cited by:

CitedStewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 16 May 2022; Ref: scu.195465

Linggi Plantations v Jagatheesan: 1972

( Hong Kong Final Court of Appeal – from Malaysia) Lord Hailsham suggested that where, on investigation, the real nature of an initial payment, which was termed a deposit, was shown to be the imposition of a penalty, it might be recovered by the purchaser, and that it was only a reasonable deposit that was irrecoverable.

Judges:

Lord Hailsham

Citations:

[1972] 1 MLJ 89

Jurisdiction:

England and Wales

Cited by:

CitedWorkers Trust and Merchant Bank Ltd v Dojap Investments Ltd PC 22-Feb-1993
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 16 May 2022; Ref: scu.187691

Classic International Pty Ltd v Lagos: 2002

(New South Wales Supreme Court) ‘I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it’ and ’42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common ‘mistake applies to’ a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot’s Law of Contract 8th Aust Ed., para 12.8: ‘Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction. . . . the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia.’

Judges:

Palmer J

Citations:

[2002] NSWSC 115

Jurisdiction:

England and Wales

Cited by:

CitedMargaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Contract

Updated: 16 May 2022; Ref: scu.187292

Pankhania v The London Borough of Hackney: ChD 2002

A brochure listing properties to be sold at auction decribed the property as being subject to a terminable licence. In fact it was a secure tenancy. The question arose as to whether a misrepresentation of law could found a cause of action.
Held: ‘I have concluded that the ‘misrepresentation of law’ rule has not survived the decision in Klienwort Benson Ltd. Its historical origin is as an off-shoot of the ‘mistake of law’ rule, created by analogy with it, and the two are logically inter-dependent. Both are grounded in the maxim ‘ignorantia juris non excusat’, a tag whose dubious utility would have been enhanced, had it gone on to explain who was not excused and from what. As it stands, it means no more than that ignorance of the general law does not excuse anyone from compliance with it, a proposition with which criminal lawyers are familiar. In translation, it has become distorted and amplified meaning, in such expressions as ‘everyone’ is taken to know the Law’, from which follow two further propositions (underpinning the ‘mistake of law’ and ‘misrepresentation of law’ rules respectively) (i) ‘ as you are taken to know the law, it is your fault if you are mistaken as to it, even if I have misrepresented it to you, and because of that you should have no relief’. Those two propositions bear little relation to, and do not follow logically from, the maxim ‘ignorantia juris non excusat’, but save for its Latin roots, no basis for the ‘misrepresentation of law’ rule is to be found, as Lane L.J. remarked in Andre. The distinction between fact and law in the context of relief from misrepresentation has no more underlying principle to it than it does in the context of relief from mistake. Indeed, when the principles of mistake and misrepresentation are set side by side, there is a stronger case for granting relief against a party who has induced a mistaken belief as to law in another, than against one who has merely made the same mistake himself. The rules of the common law should, so far as possible, be congruent with one another, and based on coherent principle. The survival of the ‘misrepresentation of law’ rule following the demise of the ‘mistake of law’ rule would be more than a quixotic anachronism. Its demise rids this area of the law of a series of distinctions, such as the ‘private rights’ exception, whose principal function has been to distinguish the ‘mistake of law’ rule, and confine it to a very narrow compass, albeit not to extinguish it completely.’

Judges:

Rex Tedd QC

Citations:

[2002] EWHC 2441 (Ch)

Jurisdiction:

England and Wales

Citing:

AppliedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedStreet v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .

Cited by:

CitedMargaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
CitedBrennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 16 May 2022; Ref: scu.187291

Flureau v Thornhill: 1746

A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. If he has not, the return of the deposit with interest and costs, is all that can be expected.’ ‘Upon a contract for a purchase, if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think the pourchaser can be entitled to any damages for the fancied goodness of the bargain, which he supposes he has lost.’

Judges:

Blackstone J, De Grey CJ

Citations:

(1776) 2 Wm Bl 1078, 96 ER 635, [1746] EngR 175, (1746-1779) 2 Black W 1078, (1746) 96 ER 635

Links:

Commonlii

Cited by:

ApprovedBain v Fothergill HL 1874
The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ‘ the usual covenant for our protection . .
CitedHollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Updated: 16 May 2022; Ref: scu.183267

City Leisure (Holdings) Ltd v Lord Mayor and Citizens of the City of Westminster: ComC 6 Apr 1995

Contract – ultra vires – power of local authority to grant an indemnity – power of local authority to borrow – acquiring the use of borrowed money

Judges:

Phillips J

Citations:

Unreported, 06 April 1995

Statutes:

Local Government Act 1972 111, Local Government (Miscellaneous) Provisions Act 1976 19(1)

Jurisdiction:

England and Wales

Contract, Local Government

Updated: 16 May 2022; Ref: scu.182571

Marubeni Corporation v Sea Containers Ltd: ComC 17 May 1995

Procedure – set-off – contract for supply of containers – construction of contract – clear words to exclude right of set-off – equitable set-off – abatement – defective containers. The words ‘without deduction’ have been held in the context of a purely commercial contract to exclude the right of set-off. The court was concerned with a clause which incorporated the word ‘deduction’ with payment: ‘… without any deductions or withholdings whatsoever.’
Held: The words were not terms of art: ‘It is unlikely either could be described as a clear word. At the end of the day therefore, the question is one of construction in the context of the contract as a whole and it is to that I shall now turn.’ The right of set-off was excluded.

Judges:

Waller J

Citations:

Unreported, 17 May 1995

Jurisdiction:

England and Wales

Citing:

CitedConnaught Restaurants Ltd v Indoor Leisure Ltd CA 17-Sep-1993
The lease provided the tenant would pay the rent ‘without any deduction’.
Held: The words ‘without any deductions’ in a lease were ambiguous and were insufficient to exclude the tenant’s right to claim a set off. Clear words are needed before . .

Cited by:

CitedEdlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
CitedBOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 16 May 2022; Ref: scu.182577

Wood (John D) and Co v Dantata; Beauchamp Estates v Dantata: CA 1987

The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of the vendor. An estate agency’s clients resisted payment of his fees. Two agents were saying they were entitled to commission. The result depended upon whether the agent had introduced the purchaser. The parties had accepted that ‘in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the (my emphasis) effective cause of the purchase.’
Held: The familiar meaning of the word introduction was the bringing together of two people who have not previously met, and the phrase ‘introduction of a purchaser’ could only mean the ‘introduction of the person who ultimately purchases, not to the property, but to the purchase, or, if you look at it from the vendors angle, to the sale; in either case to the transaction that takes place’. The fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
Nourse LJ: ‘As I have said, the learned judge recorded an acceptance by all three counsel that in order to succeed one or other of the two firms had to show that they introduced the ultimate purchaser and that such introduction was the effective cause of the purchase. That would seem to suggest that there are two questions to be answered, and it would certainly explain the importance which the learned judge attached to the chief’s retention of a lively interest in the property when he went there again on September 9. In truth I think that there is but a single question to be answered: which of the two firms introduced the chief to the sale? Both language and authority establish that that question must be answered by answering this further question: which of the two firms was the effective cause of the sale? Here I would gratefully adopt the following statement of the law in Bowstead on Agency , 15th ed, at p230, to which the learned judge referred:
… the fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place.
The difficulties in clarifying the mind on this question are, I think, caused by the familiar meaning of the word ‘introduction’ as the bringing together of two people who have not previously met. Thus it is natural, when looking at the word in its present context, to attach significance to the first bringing together of the property and the person who ultimately purchases it. But the full phrase is ‘the introduction of a purchaser’ and I think that that can only mean the introduction of the person who ultimately purchases, not to the property, but to the purchase or, if you look at it from the vendor’s angle, to the sale: in either case to the transaction which ultimately takes place. And if you then apply the primary dictionary meaning of ‘introduction’, you find that what you are looking for is the leading or bringing in of the purchaser to that transaction. That makes it clear that first acquaintance is not paramount and it explains why the test is expressed by reference to the effective cause of the transaction.
Which of the two firms was the effective cause of the sale to the chief?’

Judges:

Nourse LJ

Citations:

[1987] 2 EGLR 23

Jurisdiction:

England and Wales

Cited by:

CitedHarwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm) CA 14-Nov-1997
An estate agent with sole selling rights was not entitled to claim commission on a sale where he had contributed no act to the sale, even though his terms were specific enough to deal with the particular circumstances which had arisen here. Such a . .
CitedNahum v Royal Holloway and Bedford New College CA 12-Nov-1998
An estate agent was entitled to his commission when he could show that it was he who had brought about the relationship of buyer and seller. Delay and actions of others intended to hide that causation did not defeat the claim. The defendant asked . .
ConsideredChasen Ryder and Co v Hedges CA 1993
The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers . .
CitedBurney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
CitedStandard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
CitedBecerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
CitedFoxtons Ltd v Pelkey Bicknell and Another CA 23-Apr-2008
The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the . .
CitedMSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Lists of cited by and citing cases may be incomplete.

Agency, Contract

Updated: 16 May 2022; Ref: scu.180396

The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’: ComC 2000

Judges:

Colman J

Citations:

[2000] 1 Lloyd’s Rep 85

Cited by:

Appeal fromThe Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ CA 23-Jan-2001
. .
At First InstanceHomburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 16 May 2022; Ref: scu.180512

Reigate v Union Manufacturing Co (Ramsbottom) Ltd: CA 1918

Scrutton LJ said that ‘[a] term can only be implied if it is necessary in the business sense to give efficacy to the contract’. He added that a term would only be implied if ‘it is such a term that it can confidently be said that if at the time the contract was being negotiated’ the parties had been asked what would happen in a certain event, they would both have replied ”Of course, so and so will happen; we did not trouble to say that; it is too clear”.

Citations:

[1918] 1 KB 592

Jurisdiction:

England and Wales

Cited by:

CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 16 May 2022; Ref: scu.616750

Atkins International HA v Islamic Republic of Iran Shipping Lines (The APJ Priti): CA 1987

The APJ Priti was chartered but on the voyage, was struck by a missile, towed to port, and discharged. The ships owners argued for a breach of warranty, saying that the nominated port was unsafe. The arbitrator had found that there was no warranty from the charterers that the approach to the port was safe.
Held: The owner’s appeal failed. A warranty to nominate a safe port cannot be broken before the duty to nominate has arisen. Moreover the warranty was as to the port only, and not its approach.
Bingham LJ rejected an argument that a warranty, to the effect that the port declared was prospectively safe, could be implied into a voyage charter-party: ‘because the omission of an express warranty may well have been deliberate, because such an implied term is not necessary for the business efficacy of the charter and because such an implied term would at best lie uneasily beside the express terms of the charter’.

Judges:

Bingham LJ

Citations:

[1987] 2 Lloyd’s Rep 37

Jurisdiction:

England and Wales

Cited by:

CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 16 May 2022; Ref: scu.616751

British Eagle International Airlines Ltd v Compagnie National Air France: CA 1974

Judges:

Russell LJ

Citations:

[1974] 1 Lloyd’s Rep 429

Cited by:

Appeal fromBritish Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .
MentionedBelmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 15 May 2022; Ref: scu.442608

The Magnavox Electronics Company Limited v Hall (HM Inspector of Taxes): 1986

Citations:

(1986) 59 TC 610

Jurisdiction:

England and Wales

Cited by:

CitedIn Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 May 2022; Ref: scu.396767

More Og Romsdal Fylkesbatar AS v The Demise Charterers of the Ship JUTUNHEIM: ComC 2004

Relief against forfeiture under a lease agreement is available, ‘provided that the object of the transaction and of the insertion of the right to forfeit for non-payment of money is essentially to secure the payment of that money or is security for the attainment of a specific result which can be achieved through the courts.’

Citations:

[2004] EWHC 671 (Comm)

Jurisdiction:

England and Wales

Cited by:

CitedCelestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd ComC 4-Dec-2009
The claimant sought summary judgment for recovery of three aircraft (valued at US$36m each) leased to the defendant after non-payment of instalments. The defendant said that the default was based on a demand for supplementary rents which had not . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 May 2022; Ref: scu.381839

Jones v Randall: HL 23 Apr 1774

Gaming – Declaration that there was a promissory note on a wager given to the piaintiff by defendant in case of a decree in the Court of Chancery should be reversed in the House of Lords, to which decree the person who had laid upon the reversal was party, and had set off his loss by the reversal, upon which the decision would be against him by his gain upon the wager if it should be reversed. They gave in evidence a copy of a minute-book of the House of Lords. Verdict for the plaintiff – upon which motion for a new trial, because evidence insufficient. Lord Mansfield being against them upon that point, there was another that the contract was illegal : so that the points in this case were two.
1. That the evidence was insufficient, which went to the new trial.
2. That the contract was illegal which went to the motion in arrest of judgment.

Citations:

[1774] EngR 57, (1774) Lofft 383, (1774) 98 ER 706

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoJones v Randall 7-Feb-1774
In an action upon a wager, whether a decree of the Court of Chancery would be reversed on appeal to the House of Lords, proof of the decree arid reversal is sufficient without shewing the previous proceedings below. – A copy of the judgment of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 May 2022; Ref: scu.373913

Jones v Randall and Another: 25 Apr 1774

Action lies to recover money won upon a wager, ‘whether a decree of the Court of Chancery would be reversed or not on appeal to the House of Lords ;’ unless the motive be fraud or other turpis causa. Contracts not prohibited by positive law, nor adjudged illegal by precedent, may nevertheless be void as against principles.

Judges:

Mansfield L

Citations:

[1774] EngR 59, (1774) 1 Cowp 37, (1774) 98 ER 954 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 15 May 2022; Ref: scu.373915

Handel v The City of London Brewery: 1901

Citations:

[1901] Ch D 496

Jurisdiction:

England and Wales

Cited by:

CitedAttorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
CitedWoodchester Lease Management Services Ltd v Swayne and Co (A Firm) CA 26-Aug-1998
The parties entered into a regulated copier finance agreement. The defendant defaulted. The plaintiffs served a notice to determine the agreement, but providing what sum was to be paid to continue. The defendant said that the notice specified the . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant

Updated: 15 May 2022; Ref: scu.349084

Ranger v The Earl of Chesterfield: 1 May 1816

If a bond and warrant of attorney and indenture be made to secure an annuity, the memorial of the bond and warrant of attorney, need not express for whose life the annuity is granted, if it be expressed in the memorial of the indenture, which recites the said bond and warrant of attorney, for whose life the said annuity is granted.

Citations:

[1816] EngR 439, (1816) 5 M and S 2, (1816) 105 ER 952 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 15 May 2022; Ref: scu.334132

Tolhurst v Notley: 18 Jan 1848

In assumpsit on a promissory note, by indorsee against maker, defendant pleaded that the payee, before, at and ever since the time of indorsement, was indebted to him in a sum equalling the money due on the note, and damages ; and, while so indebted, and after maturity in order to deprive defendant of his set-off, in fraud of defendant and in collusion with plaintiff, indorsed to plaintiff without consideration, in
order to enable him to sue for the use and benefit of the payee : and that plaintiff
commenced and maintains the action as agent for the payee, for his use and benefit, according to the fraud and collusion. And defendant offered to set off, to the payee and plaintiff, the damages sustained by the nonpayment of the note, against the payee’s debt to defendant. Replication : de injuria. Special demurrer to the replication held frivolous, inasmuch as fraud was averred in the plea; and it was immaterial to the goodliness of the replication whether, without such averment, the plea disclosed a defence.

Citations:

[1848] EngR 139, (1848) 11 QB 406, (1848) 116 ER 529

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 15 May 2022; Ref: scu.299689

Henry Stephenson Johnson And Isabella, His Wife v Samuel Lucas: 1853

A declaration by husband and wife on an account stated rnust shew that the accounting was concerning matters in which the wife had an lnterest. So held, on demurrer to a declaration posterior to the coming into effect of stat. 15 and
16 Vict, c. 76.

Citations:

[1853] EngR 12, (1853) 1 El and Bl 659, (1853) 118 ER 584

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 15 May 2022; Ref: scu.293998

Holliday v Morgan: 2 Nov 1858

A warranty of soundness, oil the sale of a horse, is broken by a malformation, existing from the birth of the horse, which, at the time of the sale, renders the horse less fit for reasonable use. – As an extraordinary convexity of the cornea of the eye, producing shortsightedness, in consequence of which the horse is liable to shy. – Such a defect in the eye is not so patent a defect that a purchaser with express warranty is bound to notice it.

Citations:

[1858] EngR 1066, (1858) 1 El and El 1, (1858) 120 ER 808

Links:

Commonlii

Jurisdiction:

England and Wales

Contract, Animals

Updated: 15 May 2022; Ref: scu.289537

William Pain Beecham and Richard Smith v Henry Tilden Smith: 28 May 1858

Action by A. and B., payees of a joint and several promissory note, against C., one of the makers. Plea, that the said note was made (setting it out) by B., out of the plaintiffs, the defendant, and another : and that the defendant, in case the plaintiffa were to recover from him in that action the amount of the said note, would be entitled to call on B. for contribution. On demurrer, held a bad plea, as being no answer to the action upon the several contract by C. – Semble, per Lord Campbetl C.J., that, even if the plea had beeri good, a replication, averring that the plaintiffs made the said note only as sureties for third parties, would have been a good answer.

Citations:

[1858] EngR 742, (1858) El Bl and El 442, (1858) 120 ER 574

Links:

Commonlii

Jurisdiction:

England and Wales

Contract

Updated: 15 May 2022; Ref: scu.289213

Thompson v Hudson: 3 Nov 1864

A judgment creditor, whose debt had been satisfied but who had not entered satisfaction on the rolls, was made a Defendant to a foreclosure suit. He disclaimed. Held, that he was not entitled to his costs, in consequence of his negligence in not entering up satisfaction of his judgment,

Judges:

Sir John Romilly MR

Citations:

[1864] EngR 699 (A), (1864) 34 Beav 107

Links:

Commonlii

Jurisdiction:

England and Wales

Contract, Costs

Updated: 15 May 2022; Ref: scu.282413

London and Regional Investments Ltd v TBI Plc and Another: ChD 1 Mar 2001

Judges:

Peter Smith J

Citations:

Unreported March 2001

Jurisdiction:

England and Wales

Citing:

CitedRossiter v Miller 1873
There is no significance in the fact that a formal written agreement, whether executed or not, is in different terms to the oral discussions leading up to it, subject of course to the appropriate authority of those who have executed it.
Lord . .

Cited by:

CitedHutchison and others v B and DF Ltd ChD 3-Oct-2008
The claimants sought an order declaring that the defendant had a tenancy and requiring it to execute an appropriate lease. The landlords said that the tenant had a continuation lease under the 1954 renewal procedure, and the tenants said they had . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 May 2022; Ref: scu.276692

Rawlings v General Trading Co: CA 1921

Prospective bidders at an auction of military surplus stores agreed that only one should bid. Thus the defendant was to bid on their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods were duly knocked down to the defendant, but he reneged on the agreement, which the plaintiff then sued to enforce. The contract was held to be contrary to public policy.
Held: The judge’s decision was against authority. Atkin LJ said that the agreement was one the parties were free, in the absence of express or implied misrepresentations intended to deceive, to make and enforce the agreement was one the parties were free, in the absence of express or implied misrepresentations intended to deceive, to make and enforce, and there was nothing in this agreement which was ex facie illegal. Bankes LJ concurred.
Scrutton LJ dissenting said it was clear that the agreement was neither criminal nor actionable at the suit of the vendors, but he considered that the restrictions accepted in the agreement, although reasonable in the plaintiff’s interest, were contrary to the interest of the public and thus an unjustified and unenforceable restraint of trade.

Judges:

Scrutton LJ, Atkin LJ, Bankes LJ

Citations:

[1921] 1 KB 635

Citing:

Appeal fromRawlings v General Trading Co 1920
Prospective bidders at an auction of military surplus stores had agreed that one should bid for their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods were knocked down to the . .

Cited by:

CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 15 May 2022; Ref: scu.270736

Society of Lloyds v Clementson, Same v Mason: ComC 11 Jan 1994

An undertaking given on joining Lloyds is a sufficiently binding contract.

Citations:

Times 11-Jan-1994, [1995] CLC 117

Jurisdiction:

England and Wales

Citing:

Appealed toSociety of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .

Cited by:

AppliedEurophone International Ltd v Frontel Communications Ltd ChD 25-Jul-2001
Although the VAT regime required all commercial enterprises to issue VAT invoices in a timely way, that is not sufficient, of itself, to create an implied term into contracts between businesses, that invoices should be issued in a way which would . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 15 May 2022; Ref: scu.89375

Little v Courage Ltd: ChD 19 Jan 1994

The pub tenant had an option to renew his lease, subject to agreeing with the brewer a business plan and agreement. He notified the landlord that he wished to renew but the landlord did not himself present any plan and agreement, or obtain one, but instead declined to grant a new lease on the grounds that no new plan or agreement had been entered into.
Held: A condition precedent for a plan which was unfulfilled defeated a right to a new lease.

Citations:

Times 19-Jan-1994

Jurisdiction:

England and Wales

Cited by:

Appeal fromLittle v Courage Ltd CA 6-Jan-1995
The tenancy contained an option for the tenant to renew, subject to agreement being reached with the brewer on a business plan. The tenant said he wished to renew, but the brewer did not present a business plan or agreement, and then the landlord . .
CitedTaylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 15 May 2022; Ref: scu.83094