Arbitration – Reference to Arbiter Unnamed – Reference to Person Holding Office for Time Being – Delectus Personae
Custom – Usage of Trade – Contract – Proof Inadmissible where Language not Technical
The arbitration clause in a contract for the construction of a bridge provided that any question that might arise as to the meaning and intent of the contract should be settled, in the case of difference, by the engineer for the time being of one of the parties.
Held ( aff. the judgment of the First Division) that the reference was invalid, there being no appointment of a referee inferring a delectus personae on the part of the contracting parties.
A contract was entered into by which manufacturers of steel offered to supply the contractors, who were constructing a bridge, with ‘the whole of the steel required by’ them for the bridge at prices which were stated and subject to certain terms and conditions, inter alia, ‘The estimated quantity of the steel we understand to be 30,000 tons more or less.’ The offer was accepted by the contractors, who repeated this estimate in their letter of acceptance. In an action at the instance of the manufacturers to compel the contractors to take from the pursuers the whole of the steel required for the construction of the bridge, the defenders averred that by the custom and practice of the iron and steel trade the contract was to be regarded only as a contract for the estimated quantity with a certain margin for variation.
Held ( aff. the judgment of the First Division) that evidence of the alleged custom or usage of trade was inadmissible, as the words of the contract were unambiguous.
Judges:
Lord Chancellor (Halsbury), and Lords Watson, Bramwell, Herschell and Morris
Citations:
[1890] UKHL 463, 27 SLR 463
Links:
Jurisdiction:
Scotland
Arbitration, Contract
Updated: 28 June 2022; Ref: scu.636732