Tag: Contract

Leslie v Farrar Construction Ltd: CA 1 Nov 2016

Appeal by the funder and developer of multiple development projects against a decision that he owes the contractor andpound;139,428.16. The central issue in the appeal is whether the appellant is entitled to recover overpayments of building costs made on five completed projects. The judge held that he could not.

Jackson, McCombe LJJ
[2016] EWCA Civ 1041
Bailii
England and Wales

Contract

Updated: 24 January 2022; Ref: scu.570872

Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi Zrt: ECJ 6 Dec 2011

ECJ Opinion – Consumer protection – Directive 93/13/EEC – Article 3(1) in combination with points 1(j) and 2(d) of the annex – Articles 6 and 7 – Unfair terms in consumer contracts – Contract term that entitles the seller or supplier to amend contractual provisions unilaterally without a valid reason and without explicitly describing the method by which prices vary – Unfair nature of the term – Legal effects of a finding that a term is unfair as a result of an action in the public interest – Actio popularis – Erga omnes effect of national findings of unfairness

Trstenjak AG
[2011] EUECJ C-472/10
Bailii
European
Cited by:
Opinion – Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi Zrt ECJ 26-Apr-2012
ECJ Directive 93/13/EEC – Article 3(1) and (3) – Articles 6 and 7 – Consumer contracts – Unfair terms – Unilateral amendment of the terms of a contract by a seller or supplier – Action for an injunction brought . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract

Updated: 24 January 2022; Ref: scu.570505

JEB Recoveries Llp v Binstock: CA 19 Oct 2016

Appeal by the defendant, Mr Binstock, against the order of His Honour Judge Barker QC, sitting as a judge of the High Court, made on 8 May 2015, declaring that the court had jurisdiction to hear what has been described as the third claim of the claimant, JEB Recoveries LLP (‘JEB’), and dismissing an application by Mr Binstock that the claim should be struck out on the ground that it was founded upon a champertous assignment.

Moore-Bick VP CA, Tomlinson, Kitchin LJJ
[2016] EWCA Civ 1008
Bailii
Council Regulation (EC) No 44/2001
England and Wales

Jurisdiction, Contract

Updated: 24 January 2022; Ref: scu.570175

National Private Air Transport Services Company (National Air Services) Ltd v Creditrade Llp and Another: ComC 24 Aug 2016

NAS seeks to recover arrears of rent and other expenses totalling around US$2m which it says is owed by the defendants under sub-leases of two Embraer 195 AR aircraft. The defendants deny that they are liable to pay the sums claimed, and assert that, if anything, a positive credit balance is owing to them.

Blair J
[2016] EWHC 2144 (Comm)
Bailii
England and Wales

Contract

Updated: 24 January 2022; Ref: scu.570151

Grand China Logistics Holding (Group) Co Ltd v Spar Shipping As: CA 7 Oct 2016

Is charterers’ failure to pay an instalment of hire punctually under a time charterparty a breach of condition, strictly so called? Or, without more, does such a failure ‘merely’ entitle shipowners to withdraw the vessel from service under the charterparty in accordance with the express provisions of a withdrawal clause?

Sir Terence Etherton MR, Gross, Hamblen LJJ
[2016] EWCA Civ 982
Bailii
England and Wales

Transport, Contract

Updated: 23 January 2022; Ref: scu.569918

Datec Electronics Holdings Ltd and others v United Parcels Services Ltd: HL 16 May 2007

The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that the value of any one item did not exceed the stated limit. The claimants said that the alleged misconduct of the defendant’s staff meant that UPS could not rely on the limitation of liability provided by the Convention, and that with both restrictions not applying, UPS’s liability was unlimited.
Held: The contract should be read to reflect the commercial reality under which there remained an effective contract despite the excess value. Had the misconduct been proved? The judge had not reflected the proper effect of the expert evidence, and ‘theft involving a UPS employee was shown on a strong balance of probability to have been the cause of this loss. ‘ UPS’ appeal was therefore dismissed.

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury
Times 18-May-2007, [2007] UKHL 23, [2007] 1 WLR 1325, [2007] 2 Lloyd’s Rep 114, [2007] Bus LR 1291
Bailii
Convention on the Contract for the International Carriage of Goods by Road 81, Carriage of Goods by Road Act 1965
England and Wales
Citing:
Cited – Manning v Stylianou CA 26-Oct-2006
Where an appeal is against a judge’s evaluation of the facts, the Court of Appeal should consider the evaluation in the same way it would approach an appeal against the exercise of discretion. . .
Cited – Quantum Corporation Inc and Others v Plane Trucking Ltd and Another CA 27-Mar-2002
A valuable cargo was stolen whilst being transported. Part of the journey was by road, and part by air. The carriers sought to limit their liability, because of the provisions of the Act and Convention. It was argued that that did not apply, because . .
Approved – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
At First Instance – Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd and Another ComC 22-Feb-2005
The claimant sought damages for the loss of goods in transit under the care of the defendant. Andrew Smith J held as regards the burden of proof in an allegation of wilful misconduct: ‘I should add that I was properly reminded by counsel that the . .
Appeal from – Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd CA 29-Nov-2005
The parties put forward alternative explanations for the loss of a mail packet. Richards LJ said: ‘Nor do I see any inconsistency between my approach and the observations of Lord Brandon in The Popi M. The conclusion that employee theft was the . .

Cited by:
Cited – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Cited – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Cited – Fosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
Cited – Sony Computer Entertainment UK Ltd v Cinram Logistics UK Ltd CA 8-Aug-2008
Various items were deemed to have been lost whilst being transported by the defendants. The claimants sought damages based on the price for which they would have been sold. The defendants appealed a judgment on that basis.
Held: The carrier’s . .
Cited – Alford v Cambridgeshire Police CA 24-Feb-2009
The claimant police officer had been held after an accident when he was in a high speed pursuit of a vehicle into the neighbouring respondent’s area. The prosecution had been discontinued, and he now appealed against rejection of his claims for . .
Cited – Whitehouse v Lee CA 14-May-2009
The tenant appealed against an order requiring her to give up possession of her flat, held under the 1977 Act, saying that the court should not have found it reasonable to make an order after finding alternative accommodation suitable.
Held: . .
Cited – Cooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Cited – Nulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Mentioned – Shagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .
Cited – Actavis Group Ptc EHF and Others v Icos Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Damages

Leading Case

Updated: 23 January 2022; Ref: scu.252416

Howmet Ltd v Economy Devices Ltd and Others: CA 31 Aug 2016

Appeal by the owners of a factory which suffered fire damage against a judgment dismissing their action. The owners claimed damages against the manufacturers of a device which, they said, should have prevented the fire from occurring. This takes us back to the basic principles of the law of tort and in particular to Donoghue v Stevenson [1932] AC 562, which is almost the first case that any law student studies.

Arden, Jackson LJJ, Sir Robert Akenhead
[2016] EWCA Civ 847
Bailii
Consumer Protection Act 1987, Law Reform (Contributory Negligence) Act 1945, Electrical Equipment (Safety) Regulations 1994
England and Wales
Citing:
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .

Lists of cited by and citing cases may be incomplete.

Negligence, Contract

Updated: 22 January 2022; Ref: scu.568791

Rath v CS Lawrence and Partners (PJ Cook and Co) (a Firm) (Third Party): CA 1991

The plaintiff bought the property in 1982, relying on the defendant’s survey, which later proved incorrect having failed to identify subsidence. The writ was issued in 1984. Delays before the expiry of the limitation period led the defendant to apply to dismiss the claim for inordinate and inexcusable delay.
Held: The plaintiff’s appeal against dismissal failed. Once the claim was issued, the plaintiff was under a duty to proceed with reasonable diligence, and delay after issue, and even within the limitation period could justify dismissal.

[1991] 1 WLR 399
England and Wales
Citing:
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

Cited by:
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .

Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 22 January 2022; Ref: scu.261927

Harbinger UK Ltd v GE Information Services Ltd: TCC 5 Aug 1999

‘These preliminary issues are concerned with the construction of an Agreement to supply and support software programs. Two questions were considered. The first was whether the termination clause may be operated so as to bring the Agreement to an end at the end of the Initial Period. The answer was that it can be so operated. The second was whether support and maintenance obligations survive a termination. The answer was that they do. Such on-going obligations were stated, in the Agreement, to survive ‘in perpetuity’. By reliance on the principles of construction of commercial agreements provided for in Investors Compensation Scheme Limited v West Bromwich Building Society, the conclusion was reached that such services should be provided for as long as the defendant was contractually required to provide them to its end users.’

Thornton C HHJ
[1999] EWHC Technology 222
Bailii

Contract

Updated: 20 January 2022; Ref: scu.567814

Choudry and others v Triesman: ChD 31 Mar 2003

The applicants sought an order requiring the respondent general secretary of the Labour Party to allow them to stand as candidates for the party in the forthcoming local elections. After allegations about the way in which selection had been carried out, the party imposed its own candidates.
Held: The principles for the grant of mandatory interim injunctions had been laid down in Nottingham Building Society. Here, a serious triable issue had been raised, but the risk of injustice would be greater if the injunction were granted than if not. If granted the party would not have the election candidates of its choice, but if not granted, the candidates would still be able to stand for election.
Stanley Burton J said of the Labour Party: ‘Its constitution is contained in its rules contained in the rule book, which constitute a contract to which each member adheres when he joins the party’

Stanley Burton J
Times 02-May-2003, Gazette 05-Jun-2003, [2003] EWHC 1203 (Comm)
Bailii
England and Wales
Citing:
Cited – Nottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .

Cited by:
Cited – Foster v McNicol and Another QBD 28-Jul-2016
Incumbent Labour leader did not need nominations
The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard . .

Lists of cited by and citing cases may be incomplete.

Elections, Contract

Updated: 20 January 2022; Ref: scu.181839

Keay and Another v Morris Homes (West Midlands) Ltd: CA 11 Jul 2012

The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible that a contract which was void under the 1989 Act could, by acts amounting to a possible part performance of the purported contract, mature into a valid contract.

Laws, Rimer, Patten LJJ
[2012] EWCA Civ 900, [2012] WLR(D) 201, [2012] 2 EGLR 173, [2012] 2 P and CR 18, [2012] 1 WLR 2855
Bailii, WLRD
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – Grossman v Hooper CA 11-Apr-2001
The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Helden v Strathmore Ltd CA 11-May-2011
The defendant appealed against an order finding valid a charge in favour of the claimant despite non-compliance with the 2000 Act.
Lord Neuberger MR said as to the 1989 Act: Section 2 is concerned with contracts for the creation or sale of . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 19 January 2022; Ref: scu.462519

Mehta v J Pereira Fernandes SA: ChD 7 Apr 2006

The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, but the applicant then did not honour the guarantee, saying that it was not enforceable, the email not being signed. The respondent said that the addition of the email address was sufficient signature.
Held: The appeal succeeded. The email address had been added by the appellant’s service provider as part of the header of the email, and was not present when sent and was not a signature: ‘a party can sign a document for the purposes of Section 4 by using his full name or his last name prefixed by some or all of his initials or using his initials, and possibly by using a pseudonym or a combination of letters and numbers (as can happen for example with a Lloyds slip scratch), providing always that whatever was used was inserted into the document in order to give, and with the intention of giving, authenticity to it. Its inclusion must have been intended as a signature for these purposes.’

Pelling QC J
Times 16-May-2006, [2006] EWHC 813 (Ch), [2006] 1 WLR 1543
Bailii
Statute of Frauds 1677 v
England and Wales
Citing:
Cited – Lever v Koffler 1901
An offer was made in writing by the Defendant to sell two parcels of real property on alternative bases, where one of the alternatives was accepted both orally and by letter by the Plaintiff. He suggested two bases upon which the 1677 Act operated . .
Cited – Hussey v Horne-Payne HL 1879
An exchange of letters which together constituted a binding agreement would satisfy the requirements of Section 4 as it applied to contracts for the sale of land.
Lord Selborne said: ‘The observation has often been made, that a contract . .
Cited – Evans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .
Cited – Smith v Neale 1857
The defendant wrote to the plaintiff requesting the assignment of a patent to him to hold as trustee for an institution who would pay him a share of the profits on exploitation of the patent, and if the profits fell below a figure, the patent would . .
Cited – Reuss v Picksley 1866
A written proposal was purportedly accepted orally. The requirements of the 1677 Statute were satisfied where a signed written offer containing the requisite terms was accepted orally by the other party.
Willes J said: ‘The only question is, . .
Cited – Parker v Clark 1960
A written offer was accepted in writing by a letter that became lost. Although it was recognised that oral evidence of the written acceptance might provide an answer, the case was argued on the basis that the written offer was a sufficient . .
Cited – Winn v Bull ChD 19-Nov-1877
By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was ‘subject to the preparation and approval of a formal contract’. The plaintiff sought specific . .
Cited – Elpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
Cited – In re Hoyle CA 1893
ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol . .
Cited – Caton v Caton HL 1867
A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient . .
Distinguished – Godwin v Francis 1870
The court was asked as to the effect of a note or memorandum in the form of instructions to a telegraph company signed by the party to be charged on whose behalf the telegram concerned was sent.
Held: Bovill CJ said: ‘the mere telegram written . .
Distinguished – McBlain v Cross 1871
The court considered the stautus under the 1677 statute in the case of a telegram which stated that it came from the sender and did so with his express authority. . .

Cited by:
Cited – Orton v Collins and others ChD 23-Apr-2007
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 January 2022; Ref: scu.240177

Ross River Ltd and Another v Cambridge City Football Club Ltd: ChD 19 Sep 2007

The club sought to rescind agreements for leasing its ground, saying that the developers had made a secret payment to its chairman.
Briggs J said: ‘First and foremost, in a case where fraudulent material misrepresentations have been deliberately made with a view (as I find) improperly to influence the outcome of the negotiation of the contract in favour of the maker and his principal, by an experienced player in the relevant market, there is the most powerful inference that the fraudsman achieved his objective, at least to the limited extent required by the law, namely that his fraud was actively in the mind of the recipient when the contract came to be mad

Briggs J
[2007] EWHC 2115 (Ch), [2008] 1 All ER 1004, 117 Con LR 129, [2007] 41 EG 201, [2008] 1 All ER (Comm) 1028
Bailii
England and Wales
Cited by:
Appeal from – Ross River Ltd and Another v Cambridge City Football Club CA 7-May-2008
Both parties renewed their applications for leave to appeal. . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 19 January 2022; Ref: scu.259430

Autoweld Systems Ltd v Kito Enterprises Llc: CA 17 Dec 2010

In the civil sphere a claim for security for costs is invariably made in a costs-follow-the-event regime. Black LJ stated: ‘it must be borne in mind that the design of the rules is to protect a defendant (or a claimant placed in a similar position by a counterclaim) who is forced into litigation at the election of someone else against adverse costs consequences of that litigation’

Sedley, Rimer, Black LLJ
[2010] EWCA Civ 1469, [2011] TCLR 1
Bailii
England and Wales
Cited by:
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .
Cited – Tulip Trading Ltd v Bitcoin Association for BSV and Others ChD 5-Jan-2022
Security required for Bitcoin claim
Two applications for security for costs. The claimant claimed against fifteen overseas residents requiring a re-write of cryotocurrency systems so that he could recover sums he said were due to him in respect of Bitcoin assets which he said have . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 17 January 2022; Ref: scu.427267

Robert Alexander, Esq v James Montgomery and Co: HL 19 Feb 1773

Sale – Locus Penitentiae.- Circumstances in which written correspondence, in regard to a sale of coal, was not held to amount to a final and conclusive agreement, the parties having stipulated that their agreement was to be a written agreement, and, until this was executed, either might resile; affirming the judgment of the Court of Session.

[1773] UKHL 2 – Paton – 300, (1773) 2 Paton 300
Bailii

Scotland, Contract

Updated: 13 January 2022; Ref: scu.561816

Irvine of Drum, Esq, and Guardians v George, Earl of Aberdeen, Duff of Coulter: HL 2 Apr 1770

Decret of Sale – Exclusive Title.-
When a decree of sale is impugned, as having been fraudulently obtained, held that production of such decree is not a sufficient title to exclude exhibition of other writs specially called for, as the grounds and warrants on which it proceeded, nor a bar to the action raised for restoration of an entailed estate sold for the entailer’s debts; reversing the judgment of the Court of Session.

[1770] UKHL 2 – Paton – 249
Bailii
Scotland

Contract

Updated: 13 January 2022; Ref: scu.561677

Force India Formula One Team Ltd v Etihad Airways PJSC and Another: QBD 4 Nov 2009

The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of the defendants, and the defendants said that they had terminated the agreement and their obligations. The claimants denied any breach by them allowing the termination of the contract.
Held: E/A by their course of conduct over the months detailed above had, prior to the sending of the letter of termination, elected not to exercise any right they might otherwise have had to terminate the contract. By parity of reasoning the various breaches of contract now relied on were waived by E/A or alternatively acquiesced in by their conduct over that period.
Damages were assessed accordingly.

Sir Charles Gray
[2009] EWHC 2768 (QB), [2010] ETMR 14
Bailii
England and Wales
Citing:
Cited – Vitol Sa v Norelf Ltd HL 10-Jul-1996
(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was . .
Cited – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Cited – Woodar Investment Development Ltd v Wimpey Construction UK Ltd HL 14-Feb-1980
Wimpey agreed to buy land from Woodar for a sum of andpound;850,000 of which andpound;150,000 was to be paid to Transworld. A month later Wimpey sent a letter purporting to rescind the contract and Woodar sued for damages including the . .
Cited – Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce CA 25-Jun-1997
The court was asked: ‘(1) What approach should the Court adopt on seeking to ascertain, by a process of implication, what terms of a letter of credit are contractual under an FOB sale which provides for payment to be made by an irrevocable and . .
Cited – Tele2 International Card Company Sa and others v Post Office Ltd CA 21-Jan-2009
Appeal against rejection of claim for novation of contract.
Held: Aikens LJ summarised the analysis by Lord Goff of the principles of affirmation by election in Kanchenjunga as follows: ‘i) If a contract gives a party a right to terminate upon . .
Cited – Concord Trust v Law Debenture Trust Corporation Plc HL 28-Apr-2005
The House was called on to construe the terms of a Eurobond. The question was as to the entitlement to require the trustees to issue a notice of default which would accelerate payment under the bond, and the ability of the Trustees to call for an . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Expert Clothing Service and Sales Ltd v Hillgate House Ltd CA 1985
Landlords took possession after a successful, at first instance, forfeiture claim. The tenant succeeded on appeal and then brought a claim for the wrong of breach of the covenant for quiet enjoyment.
Held: The lease had been in existence all . .
Cited – The Fanis CA 1994
Mance LJ said: ‘The general issue is in my view appropriately stated as being whether any profit or loss arose out of or was sufficiently closely connected with the breach to require to be brought into account in assessing damages. Resolution of . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

Cited by:
Appeal from – Force India Formula One Team Ltd v Etihad Airways PJSC and Another CA 6-Oct-2010
The claimant complained of the failure to honour its sponsorship agreement of its Formula 1 racing team. The court at first instance had found the breaches to have been waived.
Held: Rix LJ discussed the consequences of a breach, saying: ‘this . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 12 January 2022; Ref: scu.377861

Fisher v Bell: QBD 10 Nov 1960

A shopkeeper displayed a flick-knife in his window for sale. A price was also displayed. He was charged with offering it for sale, an offence under the Act. The words ‘offer for sale’ were not defined in the Act, and therefore the magistrates construed them as under the general law of contract, in which case the shopkeeper had merely issued an invitation to treat.
Held: The display of the knife in the window was indeed only an invitation to treat, and the knife had not been offered for sale. In the Keating and Wiles cases the Acts in question allowed a conviction where an item was exposed for sale. That did not apply here. The appeal was dismissed.
Lord Justice Parker said: ‘It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.’

Parker LJ CJ, Ashworth Elwes JJ
[1961] 1 QB 394
England and Wales
Citing:
Distinguished – Wiles v Maddison 1943
It was proved that the defendant had the intention to commit an offence. Viscount Caldecote CJ said ‘A person might, for instance, be convicted of making an offer of an article at too high a price by putting it in his shop window to be sold at an . .
Cited – Magor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .
Distinguished – Keating v Horwood QBD 1926
A baker’s van was doing its rounds, delivering bread which had already been ordered but the van also contained bread which could be bought as required. The bread was underweight The Order prohibited the offering or exposing for sale of food . .

Lists of cited by and citing cases may be incomplete.

Crime, Consumer, Contract

Leading Case

Updated: 12 January 2022; Ref: scu.185104

Little 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 refused to grant a new lease, saying that no new plan or agreement had been entered into.
Held: The tenant’s appeal succeeded. The renewal of the lease under the covenant was enforced against the Landlord, despite the failure of the condition precedent. The brewer’s refusal to agree a plan did not allow the Landlord to refuse a new lease. The lease should be read so as to make the plan and agreement a condition, only if one was offered by the brewer. Under that reading, the landlord would not be entitled to refuse to renew the lease.

Ind Summary 06-Feb-1995, Times 06-Jan-1995, (1994) 70 P and CR 469
England and Wales
Citing:
Appeal from – 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 . .

Cited by:
Cited – Wells v Devani SC 13-Feb-2019
Mr W was selling apartments in a block of flats. Mr D, an estate agent, sought commission. W argued that D had not had signed his terms, and that therefore no contract existed. The court considered whether a contract had come into being when a major . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 10 January 2022; Ref: scu.83093

John D Wood and Co (Residential and Agricultural Ltd) v Craze: QBD 30 Nov 2007

The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The defendant said this had been varied so that commission was payable on completion. Contracts had been exchanged but the purchaser had rescinded the contract for misrepresentation.
Held: The judge should have decided the issues of law and construction that were canvassed before him in relation to all the grounds of claim. He had the material on which to decide those issues and he had heard argument on them from Counsel lasting half a day. The court would therefore decide the issue itself.
The contract was voidable, and once avoided was void ab initio, and therefore on the basis the commission was not payable.
However the court could imply into the contract a requirement that the vendor should not make a faudulent misrepresentation which might lead to such a conclusion. The case should go forward to see whether any damages might flow from a breach if proved of that clause.

Swift J
[2007] EWHC 2658 (QB)
Bailii
England and Wales
Citing:
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
Cited – Fowler v Bratt CA 1950
the plaintiff, a house agent, was instructed by the defendant to find a purchaser of his house and agreed to pay a commission on the price. Subsequently the defendant decided not to go through with the sale and the plaintiff brought proceedings for . .
Cited – Peter Long and Partners v Burns CA 1956
The estate agency agreement at issue said that commission was payable on the agents ‘introducing a person ready, willing and able to enter into a binding contract to purchase’. The purchaser entered into the contract, but then resiled after . .
Cited – Midgeley Estates Ltd v Hands 1952
In the absence of some other clear expression of intent, the intention of the estate agent and vendor when entering into an agreement concerning the sale of a property is likely to be that the commission stipulated for should be payable only in the . .
Cited – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – Blake and Co. v Sohn 1969
The defendant had falsely represented to their estate agents that they had been in undisputed exclusive possession of part of the land to be sold for 20 years and were able to prove title for the land. In fact, there was a long running dispute about . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 10 January 2022; Ref: scu.261919

Canary Wharf Finance Ii Plc v Deutsche Trustee Company Ltd and Others: ComC 28 Jan 2016

Part 8 proceedings turning on a point of construction of the terms and conditions of mortgage-backed debentures (‘Notes’) issued by the claimant, a special purpose company in the Canary Wharf Group, pursuant to a securitisation of the CW Group’s real estate portfolio.

Phillips J
[2016] EWHC 100 (Comm)
Bailii

Contract

Updated: 09 January 2022; Ref: scu.559390

ACG Acquisition Xx Llc v Olympic Airlines Sa: ComC 21 Apr 2010

The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn from service, the costs of the repairs exceeding the value of the aircraft.
Held:

Hamblen J
[2010] EWHC 923 (Comm), [2010] 1 CLC 581
Bailii
England and Wales
Cited by:
Appeal from – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Dec-2012
The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent . .
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Apr-2013
The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later . .
At Commerial Court – Olympic Airlines Sa v ACG Acquisition Xx Llc CA 17-Jun-2014
. .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 09 January 2022; Ref: scu.416129

Target Holdings Ltd v Priestley and Another: ChD 8 Apr 1999

An oral contract by which a lender agreed to accept repayments of arrears under a mortgage at a certain rate was valid in law despite non-compliance with the section. It was however a contract of disposition, not an executory contract and not caught. A compromise of repayments under a mortgage was valid despite lack of formality.

Gazette 08-Apr-1999, Gazette 06-May-1999, Times 13-May-1999
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales

Land, Contract

Updated: 09 January 2022; Ref: scu.89710

PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another (Res Cogitans): ComC 14 Jul 2015

The OW Bunker Group had gone into insolvency. Purchasers from them were no concerned at the possibility, under the industry standard tersm, of having to pay twice.
Held: The owners’ appeal from the arbitration award failed.
The court rejected the owners’ argument that the contract was one for the sale of goods, holding that it was necessary to look behind the language of the contract to ascertain exactly what the parties had undertaken to do. OWBM had not undertaken to transfer property in the bunkers delivered to the vessel because both parties had specifically envisaged that some, if not all of them, were likely to have been consumed in the vessel’s engines before the time for payment had come. When that happened they ceased to exist and it became impossible to transfer property in them: ‘In these circumstances the question arises, as already mentioned, what was the consideration for the money payment which the Owners agreed to make if it was not the transfer of title? In my judgment the true nature of the parties’ bargain was that OWBM would deliver or arrange for delivery of the bunkers, which the Owners would be immediately entitled to use for the propulsion of the vessel.’
Males J approved the arbitrators’ reasoning in paragraph 51 of the award where they had said: ‘ Stripped of all unnecessary detail, the deal between the parties was that OWBM would ensure delivery of the bunkers, the use of which would be immediately available to the Owners, who would pay for them according to OWBM’s invoice. Such an agreement does quite obviously resemble in some respects a contract of sale, but its terms and their performance do not to any extent rely on property or title or their transfer.’
Obiter, Males J expressed his opinion on an appeal by OWBM which would only have arisen for decision if the appeal had succeeded, and granted permission to appeal to the owners, but refusing that of OWBM for its own cross appeal.

Males J
[2015] EWHC 2022 (Comm), [2015] 2 Lloyd’s Rep 563
Bailii
England and Wales
Citing:
Cited – FG Wilson (Engineering) Ltd v John Holt and Company (Liverpool) Ltd ComC 5-Sep-2012
. .

Cited by:
At ComC – PST 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 . .
At ComC – PST 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: 02 January 2022; Ref: scu.550208

Credit Suisse v Allerdale Borough Council: CA 20 May 1996

Builder’s Guarantee Ultra Vires LA

The council set out to provide a swimming pool using powers under s.19 of the 1976 Act. Purporting to use powers under s.111 of the 1972 Act, it set up a company to develop a site by building a leisure pool and time-share units, with a view to selling the time-share units to pay for the cost of building the pool. The council gave a guarantee to help the company to finance the project, and on the strength of this the company obtained a facility from the bank. The sale of the time-share units proved unsatisfactory and the company went into liquidation. The bank sued the council under the guarantee to recover the sums owed to it by the company.
Held: The guarantee was ultra vires where it had been given to a company when the authority was acting outside it’s proper powers. Where a statutory corporation purports to enter into a contract which it is not empowered by the relevant statute to enter into, the corporation lacks the capacity to make the supposed contract. This lack of capacity means that the document and the agreement it contains do not have effect as a legal contract. It exists in fact but not in law. It is a legal nullity. The purported contract which is in truth not a contract does not confer any legal rights on either party. Neither party can sue on it. Any third party dealing with a local authority should be aware of that fact [of limited capacity and competence] and of the potential legal risk.
Hobhouse LJ said: ‘The discretion of the court in deciding whether to grant any remedy is wide one. It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, and the utility of granting the relevant remedy.’

Hobhouse LJ
Times 20-May-1996, [1997] QB 306
Local Government Act 1972 111, Local Government (Miscellaneous Provisions) Act 1976 819
England and Wales
Citing:
Appeal from – Credit Suisse v Allerdale Borough Council QBD 17-Jun-1994
A Local Authority’s guarantee for its own company was void, having been given for impermissible reasons. . .
Applied – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .

Cited by:
Cited – Stretch v The United Kingdom ECHR 24-Jun-2003
The claimant had taken a lease of property from a local authority. Relying upon an option for renewal, he invested substantially in the property, but it was then decided that the option was ultra vires.
Held: Property rights protected under . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Kilby v Basildon District Council Admn 26-Jul-2006
Tenants complained that the authority landlord had purported to vary a clause in his secure tenancy agreement which gave certain management rights to tenants.
Held: The powers to let on secure tenancies were governed by statute. The clause . .
Cited – Birmingham City Council v Qasim and Others CA 20-Oct-2009
The council argued that the defendant was not a tenant granted to him as a secure tenancy since he had not been granted the tenancy in accordance with its policies. An employee had manipulated the Council’s system to grant tenancies to bypass the . .
Cited – UKI (Kingsway) Ltd v Westminster City Council SC 17-Dec-2018
Short issue as to the requirements for valid ‘service’ of a completion notice so as to bring a newly completed building within liability for non-domestic rates. The notice had been served by email where no statutory authority existed for this.
Local Government, Contract, Company, Banking

Updated: 31 December 2021; Ref: scu.79620

Tael One Partners Ltd v Morgan Stanley and Co International Plc: SC 11 Mar 2015

This appeal raises a question of contractual interpretation. Its significance lies in the fact that the contractual condition in question forms part of the Loan Market Association standard terms and conditions for par trade transactions which are a recommended set of terms published by the LMA and commonly used in the secondary loan market. Tael had sought summary judgment in its claim against the defendant under a standard form contract relating to Premium Payments order, The Court of Appeal refused such judgment, and Teal now appealed.
Held: The appeal was rejected. The word ‘accrue’ describes the coming into being of a right or an obligation. The amount may not fall due until a future date, but an entitlement may nevertheless have accrued. Interest or fees might accrue, in that sense, by reference to the lapse of time, but this was not such a situation. An entitlement to a payment premium under the loan agreement accrues on a defined event. The payment premium is expressed as an amount equal to the difference between the total of several other amounts, on the one hand, and an amount equal to interest calculated at a given rate, on the other hand, so it might be said that part of the premium relates to the period before the settlement date. That does not however mean that the premium can be regarded, retrospectively, as having notionally accrued over that period. The method of calculation of the premium should not be confused with the accrual of the right to it.

Lord Neuberger, President, Lord Kerr, Lord Reed, Lord Toulson, Lord Hodge
[2015] UKSC 12, [2015] WLR(D) 122, [2015] BUS LR 278, UKSC 2013/0127
Bailii, Bailii Summary, WLRD, SC, SC Summary
England and Wales
Citing:
Appeal from – Tael One Partners Ltd v Morgan Stanley and Co International Plc CA 1-May-2013
Morgan Stanley appealed against summary judgment given against it in respect of the application of the terms of a standard form assignment of a Loan agreement.
Held: The words ‘which are expressed to accrue by reference to the lapse of time’, . .
At first instance – Tael One Partners Ltd v Morgan Stanley and Co International Plc ComC 9-Jul-2012
Each party sought summary judgment.
Held: Popplewell J granted Tael’s application and dismissed Morgan Stanley’s. The payment premium was similar to interest and performed an analogous function. The cost of the borrowing was more than the . .
Cited – In re Howell KBD 1895
The court considered whether, a tenant having become bankrupt during the currency of a quarter, that part of the quarter’s rent apportionable to the part of the quarter before the order of adjudication should be held to be rent ‘accrued due’, within . .
Cited – Aitken v South Hams District Council HL 8-Jul-1994
A notice was served in 1983 under section 58 of the Control of Pollution Act 1974 requiring the abatement of a noise nuisance. That section was repealed by the Environmental Protection Act 1990, with effect from 1st January 1991, and a new procedure . .
Cited – In re Lysaght CA 1898
The testator bequeathed certain shares and declared that they ‘shall carry the interest accruing thereon at my death.’
Held: But for this clause the Apportionment Act would have allowed the residuary legatees to take the benefit of the . .

Lists of cited by and citing cases may be incomplete.

Contract, Financial Services

Updated: 28 December 2021; Ref: scu.544223

Reinhard v Ondra Llp and Others: ChD 14 Jan 2015

The parties disputed whether the claimant had become a member of the defendant limited liability partnership.
Warren J said: ‘the ‘share’ of a member [of an LLP] is the totality of the contractual or statutory rights and obligations of that member which attach to his membership’.

Warren J
[2015] EWHC 26 (Ch)
Bailii
England and Wales
Cited by:
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .

Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 25 December 2021; Ref: scu.541399

Rendlesham Estates Plc and Others v Barr Ltd: TCC 28 Nov 2014

The claimants owned two blocks of apartments. One contractor was unable to complete the buildings, and the defendant stepped in undertaking to complete the project within the original budget, subject to a reduction in the specifications. The owners complained that the final products were not to an acceptable standard.

Wdwards-Stuart J
[2014] EWHC 3968 (TCC)
Bailii

Contract

Updated: 24 December 2021; Ref: scu.539384

McMeekin v Long: QBD 4 Oct 2002

The sellers of a property did not disclose potential disputes with their neighbours about parking over an access way and the dumping of rubbish. They claimed that in each case they had taken advice and had accepted it and there had been no further disagreement, and that there had therefore been no dispute. The solicitor in his replies to standard Part II enquiries confirmed that the sellers replies were accurate so far as he knew. It was clear however that the potential for dispute remained and that it had been long running and personal. The form also asked if complaints had ever been received.
Held: The sellers were guilty of a fraudulent misrepresentation. The evidence established to a sufficient standard, that the sellers had acted fraudulently, and, since the claimant would not have purchased the property if they had known of the difficulties, they had relied upon the misrepresentations and could claim in damages. Damages of andpound;67,000 were awarded.

Astill J
[2003] 29 EG 120
England and Wales

Torts – Other, Contract

Updated: 23 December 2021; Ref: scu.186766

Foakes v Beer: HL 16 May 1884

Mrs Beer had obtained judgment against Dr Foakes for pounds 2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In consideration of the part payment and Dr Foakes’s undertaking to pay the balance in instalments Mrs Beer agreed not to take any proceedings on the judgment. After the whole sum had been paid, however, she sought to take proceedings on the judgment to recover interest.
Held: A promise to pay part of a debt is not good consideration in law. The House applied the rule in Pinnel’s Case that since the obligations undertaken by Dr Foakes under the agreement added nothing to his existing obligation under the judgment, he had provided no consideration for Mrs Beer’s promise not to take action on the judgment which was therefore unenforceable.
Lord Blackburn argued for the abolition of the rule in Pinnel’s case: ‘What principally weighs with me in thinking that Lord Coke made a mistake of fact is my conviction that all men of business, whether merchants or tradesmen, do every day recognize and act on the ground that prompt payment of a part of their demand may be more beneficial to them than it would be to insist on their rights and enforce payment of the whole. Even where the debtor is perfectly solvent, and sure to pay at last, this often is so. Where the credit of the debtor is doubtful it must be more so.’

Lord Blackburn
(1884) 9 App Cas 605, [1884] UKHL 1
Bailii
England and Wales
Citing:
Applied – Pinnel’s Case, Penny v Core CCP 1602
Payment of Lesser Sum Not Satisfaction
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may . .

Cited by:
Cited – Bradford 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 . .
Cited – Collier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
Applied – In 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 . .
Cited – Hirachand 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 . .
For Examination later – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Leading Case

Updated: 23 December 2021; Ref: scu.243134

JBW Group Ltd v Westminster City Council: QBD 3 Nov 2009

The claimants acted as certificated bailiffs collecting sums due to the defendant Council on the issue of warrants of execution. The contract was terminated, and the parties now sought a decision as to costs incurred by the claimants in respect of debts not yet paid at the date of the determination of the contract.

Jack J
[2009] EWHC 2697 (QB)
Bailii
England and Wales
Cited by:
At First Instance – JBW Group Ltd v Westminster City Council (Leave) CA 12-Mar-2010
Application for leave to appeal – granted. . .
Appeal from – JBW Group Ltd v Westminster City Council CA 12-Mar-2010
The tenant had applied to the landlord for consent to assign certain leases. The court had declared the right to exercise break clauses in certain leases as lost. The court had found the right to be lost after the assignment of the leases by the . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 21 December 2021; Ref: scu.377862

Clegg v Olle Andersson (T/A Nordic Marine): CA 11 Mar 2003

Right oReject Survived Attempted Repair

The claimant agreed to purchase a yacht from the defendants with a keel to the manufacturer’s standard specifications. The keel actually installed was rather heavier. After correspondence, the claimant rejected the yacht and required the return of the the purchase price. The respondent said the exercise of a right of rejection was unreasonable, given that the manufacturer had offered to correct the defect.
Held: Though a repair had been undertaken the right to reject had not been lost. The buyer had maintained his demand for information about the defect. Whether or not a buyer has had a reasonable time to inspect the goods is only one of the questions to be answered in ascertaining whether there has been acceptance in accordance with subsection (4). Subsection (6)(a) shows that time taken merely in requesting or agreeing to repairs for carrying them out, is not to be counted. The purchasers’ failure to mitigate their loss became irrelevant when the right of rejection was used. There is no requirement that the exercise of the right of rejection should be subject to any condition of reasonableness.

Lady Justice Hale The Vice-Chancellor Lord Justice Dyson
[2003] EWCA Civ 320, Times 14-Apr-2003, Gazette 22-May-2003, [2003] 2 Lloyd’s Rep 32
Bailii
Sale of Goods Act 1979 13(1) 14(2)
England and Wales
Citing:
Cited – Kwei Tek Chao v British Traders and Shippers QBD 1954
In testing whether a buyer of goods has acted inconsistently with the rights of the seller so as to lose the right of rejection where as in this case, property in the goods has passed to the buyer, the ownership of the seller with which the buyer . .
Cited – Bernstein v Pamson Motors (Golders Green) Ltd QBD 1987
A car had been delivered to the buyer three weeks before the purported rejection. In the interval the purchaser had driven it 140 miles.
Held: The nature of the particular defect, discovered ex post facto, and the speed with which it might . .
Appeal from – Clegg and Another v Andersson (Trading As Nordic Marine) QBD 21-May-2002
. .

Cited by:
Cited – J and H Ritchie Ltd v Lloyd Ltd HL 7-Mar-2007
The appellants had bought a seed drill from the respondents. It had been repossessed but sold as near new. A fault was noticed after two days use, and it was returned. The defendants repaired it without agreeing this with the appellant, and then . .

Lists of cited by and citing cases may be incomplete.

Contract, Consumer

Updated: 20 December 2021; Ref: scu.179774

Radford and Another v Frade and Others: QBD 28 Jul 2014

Sir David Eady
[2014] EWHC 2602 (QB)
Bailii
England and Wales
Cited by:
See Also – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 December 2021; Ref: scu.535503

Smallman v Smallman: CA 1972

An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the property and that H would pay the children’s school fees and maintenance but this was conditional upon W providing evidence on which H could divorce her and on ‘the approval of the court.’ W gave the confession but H then sought to resile from the agreement claiming that it was not binding until it had been approved by the court. W proceeded under section 17 and the Registrar held there was a binding agreement but that before the proceeds could be distributed the court must approve it.
Held: Lord Denning MR said: ‘In my opinion, if the parties have reached an agreement on all essential matters, then the clause ‘subject to the approval of the court’ does not mean there is no agreement at all. There is an agreement, but the operation of it is suspended until the court approves it. It is the duty of one party or the other to bring the agreement before the court for approval. If the court approves, it is binding on the parties. If the court does not approve, it is not binding. But, pending the application to the court, it remains a binding agreement which neither party can disavow. Orr L.J. has drawn my attention to a useful analogy. Many contracts for the sale of goods are made subject to an export or import licence being obtained. Such a condition does not mean that there is no contract at all. It is the duty of the seller, or the buyer, as the case may be, to take reasonable steps to obtain a licence. If he applies for a licence and gets it, the contract operates. If he takes all reasonable steps to obtain it, and it is refused, he is released from his obligations. If he fails to apply for it or to do what is reasonable to obtain it, he is in breach and liable to damages.’

Lord Denning MR
[1972] Fam 25
Married Women’s Property Act 1882 17
England and Wales
Cited by:
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Warwick (Formerly Yarwood) v Trustee In Bankruptcy of Clive Graham Yarwood ChD 13-Sep-2010
The trustee sought to have set aside as an unlawful preference, the payment of 75% of the proceeds of sale of the former matrimonial home to the bankrupt’s wife, saying that the payment had been made after the presentation of the petition. The . .

Lists of cited by and citing cases may be incomplete.

Family, Contract

Updated: 18 December 2021; Ref: scu.259832

Re Lyne-Stephens and Scott-Miller’s Contract: CA 1920

A vendor of a house was entitled to retain the benefits of payments from a tenant made between contract and completion, because the vendor had sold the house but not yet also the benefit of the lease.

[1920] 1 Ch 472
England and Wales
Cited by:
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .

Lists of cited by and citing cases may be incomplete.

Contract, Land, Landlord and Tenant

Updated: 18 December 2021; Ref: scu.223743

Moore v Garwood: CEC 1849

The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was entitled to his money back depended partly upon the terms of the prospectus and some letters and partly upon what had been said at a meeting of the promoters and subscribers when it first appeared that the formation of the company was likely to be delayed. The court directed the jury that: ‘the nature of the contract into which the parties had entered was rather a question of fact than of law, because it did not consist of one distinct contract between the parties, but of a series of acts and things done, from which the jury were to determine what was the real intention and meaning of the parties when they entered into the mutual relation in which they stood.’
Held: . The main point in the case was: ‘whether it was a question of law for the judge, – whether he ought to have taken upon himself to say what the contract was; or, on the other hand, whether that was a question for the jury. Now there was a good deal of evidence, independent of these letters and of other documents. There was the conduct of the parties, which was relied upon, and which appeared from the statements of the witnesses in the progress of the trial. We therefore think that, looking at all the circumstances of the case, the Lord Chief Baron could hardly have put the case in better terms to the jury. . . . If the contract had depended solely upon the written documents, the [contrary] argument might have prevailed; but as it does not, we think the question was properly submitted to the jury.’

Patteson J
(1849) 4 Ex 681
England and Wales
Cited by:
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .

Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 December 2021; Ref: scu.194301

Bluewater Energy Services Bv v Mercon Steel Structures Bv and Others: TCC 30 Jun 2014

‘claims arising under a sub-contract made between the Claimant and the Defendant for the fabrication of a tower based soft yoke mooring system for installation as part of the development of the Yuri Korchagin Field in the Caspian Sea.’

Ramsey J
[2014] EWHC 2132 (TCC)
Bailii

Contract

Updated: 16 December 2021; Ref: scu.533820

Bettini v Gye: QBD 1876

Mr Bettini agreed to sing for Mr Gye in concerts and operas in London between March and July 1875. The contract said he was to be in London ‘without fall’ at least six days before the 30th March for rehearsals. Because of illness, he did not arrive until the 28th.
Held: The term was not in this case a condition precedent: the clause was a warranty only and a breach would not amount to a repudiation of the contract but would only give rise to an action for compensation in damages. Nevertheless, parties to a contract are free to say that a breach of a particular term will be fundamental.
Blackburn J said: ‘Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one.’
To discovere wether there had been a repudiation, the court had to ask whether the breach in question was of a term: ‘going to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different from what the defendant has stipulated for.’

Blackburn J
(1876 ) 1 QBD 183
England and Wales
Cited by:
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Lombard North Central v Butterworth CA 31-Jul-1986
The defendant entered into a hire-purchase contract for a computer, time being stipulated to be ‘of the essence’ in relation to the payment obligations. He defendant defaulted, and the plaintiff took possession of the goods, and and sought payment . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 10 December 2021; Ref: scu.251066

Taylor and Another v Caldwell and Another: QBD 6 May 1863

The defendants had agreed to hire a hall to give four concerts, but it burned down before they were to start.
Held: Blackburn J said: ‘where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. ‘ and ‘Although the Civil law is not of itself authority in an English Court, it affords great assistance in investigating the principles on which the law is grounded. And it seems to us that the common law authorities establish that in such a contract the same condition of the continued existence of the thing is implied by English law. ‘

Blackburn J
[1863] EWHC QB J1, (1863) 3 B and S 826, [1863] EngR 526, (1863) 122 ER 309
Bailii, Commonlii
England and Wales
Citing:
Cited – Paradine v Jane KBD 26-Mar-1647
The defendant tenant had had his house occupied by an invading army and he sought to be excused from paying rent.
Held: ‘where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no . .

Cited by:
Cited – Krell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .

Lists of cited by and citing cases may be incomplete.

Contract

Leading Case

Updated: 10 December 2021; Ref: scu.245442