The parties had entered into a contract for the development of land. Two circumstances operated to make it difficult or impossible, and the court was asked whether the contract was frustrated. The vendor was obliged to use all reasonable endeavours to secure the section 106 agreement and the purchaser was under no obligation to complete in the absence of such an agreement. One question was whether a term could be implied allowing the vendor to rescind if, despite the exercise of all reasonable endeavours, the stipulated agreement could not be achieved and the buyer did not waive that condition. Implicit in that question was that it was open to the buyer to waive the condition.
Held: The appeal failed (on this point) There was no inconsistency between the presence in the contract of a condition for the sole benefit of the buyer and the implication into the contract of a term to the effect that, if the seller complied with his obligation to use all reasonable endeavours but was unable to complete the section 106 agreement, the seller should give to the buyer an opportunity to complete the sale without that agreement (in other words, to waive the condition requiring that agreement) but if the buyer should choose not to complete the sale on that basis the vendor would have the right to terminate the contract.
Judges:
Waller LJ, Buxton LJ, Lloyd LJ
Citations:
[2007] EWCA Civ 475, [2007] 2 EGLR 152
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Yewbelle Ltd v London Green Developments Ltd, Knightsbridge Green Limited ChD 8-Dec-2006
The court considered what were the obligations undertaken by a party contracting to use reasonable endeavours.
Held: The question is one of substance, not form, to be determined objectively. Lewison J said: ‘the essence of the obligation . .
Cited by:
Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Lists of cited by and citing cases may be incomplete.
Contract, Land
Updated: 11 July 2022; Ref: scu.252508