Fisher v Bell [1960] A shopkeeper displayed a flick-knife in his
window. The Restriction of Offensive Weapons Act 1959 made it an
offence to offer such a knife for sale. The defendant argued that a
display of anything in a show window is simply an offer to treat and
this means that, under contract law, it is the customer who makes
the offer to buy the knife.
Here the court considered that Parliament knew the technical law, at
Common Law, of the term 'offer'.
In Adler v George ([1964] 2 QB 7) a conviction was challenged
on the basis of what was an obvious miswording in the Official
Secrets Act (1920). This Act made it an offence to obstruct a member
of the armed forces ``in the vicinity of'' particular locations, but not
actually ``in'' those locations. The defendant was actually inside an
Air Force base at the time of the incident, which he clained was
beyond the literal scope of the act. While it is fairly clear that this
case exposes a defect in the drafting of the statute, not all such
defects are so obvious. Frequently courts hasve to decide whehter
statutes really mean what they purport to mean, or are simply badly
worded.
Heydon's Case (1584). This established the Mischief Rule (for an
example of the Mischief Rule see Smith v Hughes) and gives a Judge
more discretion than the Literal or Golden Rule.
In Heydon's Case it was said there were four points a court should
consider (these are paraphrased).
(1) What was the common law before the making of the Act?
(2) What was the mischief and defect for which the common law did
not provide?
(3) What is the remedy Parliament hath resolved?
(4) The true reason of the remedy.
Then the Judges should suppress the mischief and advance the
remedy.
Gorris v. Scott
[1874] 9. L.R. (Exch.) 125
Author: Jim
Facts: D, a ship owner, was carrying P’s sheep into Great Britain
when a number of these sheep were washed overboard. P claims
that this happened because D did not comply with Contagious
Diseases Act which requires the ship owner to have separate dens for
the animals on the ship.
Issue: Can P recover for the loss of the sheep under the Act?
Holding: NO
Rationale: According to the court, “…looking at the Act, it is perfectly
clear that its provision were all enacted with a totally different view;
there was no purpose, direct or indirect, to protect against such
damage, but, as is recited in the preamble, the Act is directed against
the possibility of sheep or cattle being exposed to disease on their
way to this country.” If the sheep had contracted disease and P was
suing for such damages, then D would have been liable for not
complying with the Act. But in the current case, D’s noncompliance
with the act resulted in a harm that the Act was never designed to
protect against.
2002 Stafford v UK [2002] 35 EHRR 32
The European Court overturns Wynne and accepts that the reality of
the mandatory life sentence is that detention after tariff expiry is only
on dangerousness grounds, and therefore Article 5(4) is applicable to
reviews by the Board as with all other lifers.
1994 Wynne v UK [1994] 19 EHRR 333
The Strasbourg court accepts the UK government’s analysis of the
mandatory life sentence, as it is a sentence of lifelong punitive
detention, Article 5(4) is not engaged when such lifers are recalled.
Bannerman v White (1861)
The buyer of hops asked whether sulphur had been used in their
cultivation. He added that if it had he would not even bother to ask
the price. The seller assured him that it had not. Their assurance was
held to be a condition of the contract. It was of such importance
that, without it, the buyer would not have entered the contract.
Brogden v. Metropolitan Railway (1877)
Parties had traded with each other for some years. Railways sent
draft contract. Brogdan inserted a clause and wrote "accepted" on it
and sent it back. Dealings continued but then question of whether or
not they had a contract.
Yes because sending the draft was the offer and the acceptance was
the act of returning it and continuing to trade.
Balfour v Balfour (1919)2 KB 571
D, a civil servant in Sri Lanka, came to England with his wife (p) and
later returned to Sri Lanke along, the wife returning to England for
health reasons. The defendant promised to pay the wife £30 per
month as maintenance, but failed to keep up the payments. The wife
sued. The court held that the wife could not succeed because:
1. She provided no consideration for the promise to pay £30;
2. There was no intention to create legal relations.
Where the parties were husband and wife, the onus was on the
plaintiff to rebutt the presumption that in social and domestic
arrangements there was no intention to contract.
Butler Machine Tool v. Ex-cell-o Corp. (1979) 1 AE 965
Butler Machine Tool made a quotation offering to sell a machine tool
to the buyers for £75,535, with the delivery to be in 10 months' time.
The offer was subject to certain terms and conditions which "shall
prevail over any terms and conditions in the buyer's order". These
conditions included a price variation clause stating that the machine
would be sold at it's price on the day of delivery. The buyers placed
an order and the order was stated tobe subject to conditions
materially different from those put forward by the sellers and which
made no provision for a variation in price. At the foot of the buyer's
order there was a tear-off acknowledgement slip which stated "we
accept your ordero n the Terms and Conditions stated thereon". The
sellers completed this and returned it to the buyers with a letter
stating that the buyer's order wasbeing entered in accordance with
the sellers' quotation. When the sellers came to deliver the machine,
there had been a price increase of £2,892 which the buyers refused
to pay so the sellers brought an action against them claiming they
were entitled to the increase in price under the variation clause. BUT
the buyers contended that the contract had been concluded on the
buyers' rather than the sellers' contract. HELD because the sellers
had accepted by completing and returning the acknowledgement.
Carlill v Carbolic Smoke Ball Company (1893)
The defendants, the proprietors of a medical preparation called "The
Carbolic Smoke Ball," issued an advertisement in which they offered
to pay 100l. to any person who contracted the influenza after having
used one of their somke balls in a specified manner and for a
specified period. The plaintiff on the faith of the advertisment bought
one of the balls, and ued it in the manner and for the period
specified, but nevertheless contracted the influenzy:- HELD: affirming
the decision of Hawkins, J that the above facts established a contract
by the defendants to pay the plaintiff 100l. in the event which had
happened; that such contract was neither a contract by way of
wagering within 8 & 9 Vict c. 109, nor a policy within 14 Geo 3, c. 48,
s. 2; and that the plaintiff was entitled to recover.
Couchman v Hill (1947)
Plaintiff bought a heifer at an auction, and the catlogue described the
animal as "unserved." The printed conditions of sale provided that
the auctioneer "gave no warranty whatever" in respect of the
condition or description of any animal. Before he bid for the heifer,
plaintiff asked the auctioneer and the owner of the heifer to confirm
that it was "unserved." Both replied in the affirmative. The heifer died
within eight
weeks of the sale as a result of carrying a calf at too young an age
for breeding. HELD: by the Court of Appeal, that the verbal
statements that the heifer was "unserved" overrode the conditions of
sale, plaintiff was able to recover damages for breach of warranty.
Combe v. Combe (1951)
Birkett LJ was prepared to consider that High Trees case might apply
to a maintenance agreement between a divorced husband and wife,
which fell short of being a contract propert but which clearly
resembled one.
Also raised issue that the doctrine of promissory estoppel : "the
doctrine operates "a shield not a sword"", that it is defensive in
nature, not offensive. In this case his lordship expressed concern that
the doctrine might be stretched too far and explicitly stated that it did
" not create new causes of action where none existed before".
Asquith LJ said that in Combe v. Combe the action was brought not
on the promise but on an independent statutory right which the
defendants were estopped from denying.
Speaks of promissory estoppel and a waiver as though there was no
difference.
Central London property trust ltd v. High Trees House Ltd.
(1947) K.B. 130
Defendants were renting a flat in London for £2,5000 a year. In
1940, due to war-time conditions and the bombing raids, only a few
flats were actually being rented out and the defendants could not
afford the rent so it was reduced to £1,250. In September 1945 the
plaintiffs wrote to the defendants claiming rent at the rate of £2,500
a year and they bought action claiming the full rent for the last two
quarters of 1945. HELD - since the plaintiffs knew that their promise
would be acted upon and it had been acted upon, it was enforceable
despite the absence of consideration while the conditions giving rise
to it continued to exist; and when they ceased to do so in 1945, the
plaintiffs were entitled to claim full rent.
DUNLOP PNEUMATIC TYRE CO v SELFRIDGE LTD (1915) AC
847:
Modern English law favours Pollock's definition adopted by L Dunded
in this case as "an act or forebearance of the one party or the
promise thereof, is the price for which the promise of the other is
bought and the promise thus given for value is enforceable."
D&C Builders v. Rees (1966)
The defendant owed the plaintiffs £482 for building work done. After
failing to pay for several months, the defendant offered £300 of, in
effect, nothing. The plaintiffs, as the defendant well knew, were in
dire financial straits nd were compelled to accept. They subsequently
sued for the balance. Lord Denning held that the defendant had held
the plaintiffs to ransom by taking advantage of their financial
predicament, that ther was no true accord between the parties and
that accordingly the defendant could not rely on High Trees in his
defence; it would not be inequitable for the plaintiffs to go back on
their promise to accept £300 because it had been extracted by
threats.
Daulia v Four Mill Bank Nominees Ltd (1978)
The plaintiffs wished to purchase property. They were told by the
defendants that if they attend the next day at 10 am with a banker's
draft for the deposit and a signed and engrossed contract, the
defendants would exchange. The plaintiffs did this but the
defendants refused to exchange because they had found another
purchaser at an increased price. HELD: the promise amounted to a
unilateral offer, and since the plaintiffs had fulfilled the conditions
they had accepted the offer.
Dickinson v Dodds (1876)
On Wednesday 10 June 1874 the defendant offered to sell his house
to the plaintiff, stating that "this offer to be left over until Friday
9a.m." On the Thursday afternoon the plaintiff was informed by Berry
that the defendant had been offering or agreeing to sell the property
to Allan. The plaintiff therefore went to the house where the
defendant was staying and left a formal written acceptance there
(the evidence was that the defendant did not receive this document).
On the Friday at 7 am, Berry, who was acting as agent for the
plaintiff, found the defendant at the railway station, handed him a
copy of the plaintiff's acceptance and stated its contents. The
defendant had sold the property to Allan on Thursday 11 June.
HELD: the offer might be withdrawn at any time before acceptance
since there was no consideration for the promise to keep the offer
open until 9 am. Had it in fact been withdrawn.
JAMES LJ ..."It is to my mind quite clear that before there was any
attempt at acceptance by the plaintiff, he was perfectly well aware
that Dodds had changed his mind, and that he had in fact agreed to
sell the property to Allan. It is impossible, therefore, to say there was
ever that existence of the same mind between the two parties which
is essential in point of law to the making of an agreement. I am of
the opinion, therefore, that the plaintiff has failed to prove that there
was any binding contract between Dodds and himself."
Edwards v Skyways Ltd (1964)
An airline pilot was offered a "golden handshake" (ex-gratia payment
by his employers). They failed to pay so he sued. HELD: the
employers said that the offer of the ex-gratia payment was not
intended to be contractually binding.
ESSO Petroleum v Commissioners for Customs and Excise
(1976)
Esso supplied with "World Cup" coins. One coin was given to
motorists with every gallon of petrol bought. The issue, so far as the
customs and excise were concerned, was whether there had been a
contract of sale. House of Lords decided by a 4:1 majority that there
had been no sale. However, 3 members of the House of Lords
thought that there was a contract with regard to the coins - c
contract for supply - on the basis that ESSO had not discharged the
burden of proving an absence of contractual intent.
ESSO PETROLEUM V MARDEN (1976)
In 1961, the plaintiffs' employee, with 40 years experience,
calculated that the potentional throughput of a petrol station was
likely to reach 200,000 gallons by the third year of operation of the
station. The local planning authoriy refused permission for the pumps
to front on to the street so they had to be placed at the back of the
site. In 1963, the defendant, a prospective tenant for the petrol
station, was given the same estimate of throughput by the plaintiffs'
emploee. The defendant suggested that 100,000 to 150,000 gallons
was a more likely figure, but his douvts were quelled by his trust in
the greater experiences of the plaintiffs' employee. The defendant
entered into a three-year tenancy. In the first 15 months the
throughput was only 78,000 gallons. The losses continued, and
eventually the plaintiffs cut off the defendant's supply of petrol
because of non-payment. They sought possession of the station and
moneys they were owed. The defendant claimed damages, inter alia,
for breach of warranty as to the potentional throughput of the
station. HELD: the statement was a contractual warranty because it
was a factual statement on a crucial matter by a party professing to
have special knowledge in order to induce the defendant to enter into
the contract. This warranty was not a promise that the station would
in fact have this throughput but a warranty that the forecast had
been made with reasonable care and skill. The plaintiffs were liable in
damages for the amount that the defendant had lost by being
induced to enter the contract.
ESSO Petroleum v Commissioners for Customs and Excise
(1976)
Esso supplied with "World Cup" coins. One coin was given to
motorists with every gallon of petrol bought. The issue, so far as the
customs and excise were concerned, was whether there had been a
contract of sale. House of Lords decided by a 4:1 majority that there
had been no sale. However, 3 members of the House of Lords
thought that there was a contract with regard to the coins - c
contract for supply - on the basis that ESSO had not discharged the
burden of proving an absence of contractual intent.
Errington v Errington and Woods (1952)
A father bought a house for his son and daughter-in-law to live in. He
paid one third of the purchase price in cash and borrowed the
remainder from a building society on mortgage. He told the son and
daughter-in-law that if they paid the mortgage instalments, he would
convey the house to them when the payments were duly complete.
They duly paid the instalments. The father purported to revoke his
offer to convey the house before the whole mortgage had been
repaid. It was held that there must be a term implied into the offer
that it would be irrevocable once performance had commenced.
Foley v. Classique Coaches Ltd (1934)
F sold part of his land to a motor company on condition that the
company would buy all their petrol from him. The agreement
between F and the company laid down that petrol would be bought
from F "at a price to be agreed by the parties in writing from time to
time." The agreement also provided that in any dispute the
agreement should be submitted to arbitration. The price was never
agrred and the company refused to
purchase the petrol. HELD: that there was a binding contract, and a
method was provided by which the price could be ascertained,
namely by arbitration. An injunction was granted against the
company restraining them from breach.
Grist v Bailey [1967] Ch. 532
The plaintiff contracted to buy a house from the defendant for £850.
Both parties believed that the existing tenant in the house had a
legally protected tenancy under the Rent Acts and that the house
therefore could not be sold with vacant possession. The market value
of the house with vacant possession was £2,250. There was no such
tenant and the plaintiff sought specific performance of the contract
whilst the defendant tried to have it set aside for common mistake.
Held by the Court of Appeal that the contract was voidable and
should be set aside but upon terms that the defendant had to
undertake to the court that he would allow the plaintiff to buy the
house at its open market value with vacant possesion ( i.e. £2,500 )
if the plaintiff should still desire to make the purchase.
Gibbons v Proctor (1891)
On 29 May, the defendant instructed handbills to be printed offering
a reward of £25 to the person who gave information, leading to the
conviction of the perpetrator of a particular crime, to police
Superintendent Penn. The plaintiff, a police officer, had already
communicated the required information to a colleague, named
Coppin, with instructions to forward it to Superintendent Penn. The
information reached Penn on 30 May, which was after the time when
the handbills had been distributed to police stations. HELD: the
plaintiff was entitled to the reward. Coppin and Lennan were the
plaintiff's agents for the purposes of conveying the information. The
terms of the offer required the information to be given to Penn. The
acceptance was the supply of the information to Penn, and at that
time the plaintiff knew that a reward had been offered.
Hoenig v Isaacs [ 1952 ] 2 All ER 176
The plaintiff agreed to decorate and furnish the defendant's flat for
£750. The defendant was dissatisfied with the work and therefore
only paid £400. The plaintiff sued for the balance and as a defence
the defendant claimed that as there had not been complete
performance the plaintiff was not entitled to anything at all or
alternatively that the plaintiff was only entitled to a quantum meruit
and not the contract price.
Held by the Court of Appeal that as the plaintiff had made substantial
performance he was entitled to the full contract price less the cost to
the defendants of remedying the defects in some of the furnishings (
assessed by the court at £55 ).
Hong Kong Fir Shipping (1962)
The charterers hired a ship for 24 months, "being in every way fitted
for ordinary cargo service." The ship's machinery was quite old which
meant that it required careful and adequate engine room staff. It did
not have these and in fact the chief engineer was incompetent so the
ship had many serious mechanical breakdowns and on the voyage at
sea for eight and a half weeks the ship was off hire for five weeks for
repairs and later had to go in for more repairs. The owners sought
damages for wrongful repudiation. HELD although there was a
breach of the charterparty because the ship was unseaworthy,
seaworthiness was not a condition of the charterparty entitling the
charter to terminate. The delay caused by the breakdowns and the
repairs was not so great as to frustrate the commercial purpose of
the charterparty.
Hernbay Steamboat Co v Hutton (1903) 2 KB 683
(also a coronation case). D chartered a steam boat to (1) view naval
review and (2) have a days cruise around the fleet. The naval review
was cancelled because the coronation was cancelled but it was still
possible to cruise around the fleet so the contract was not considered
to be frustrated. Limitation on this - cannot claim it is frustrated if
something makes it more burdensome or more expensive to one
party.
Hardwick v. Johnson (1978) 1 WLR 683
The presumption against contractual intention is sometimes rebutted
where the occupation of real property is concerned.
Mother promised to buy a house for her son and daughter in law to
live in. There was an arrangement that she would buy the house and
they would pay her rent at £7 a week. The marriage broke down
after one year. The monther tried to get possession of the house.
The daughter-in-law offered £7 per week.
The resulting agreement was held to be a licence for occupation.
Lord Denning held it to be equitable and Lord Justices Roskill and
Browne said it was contractual.
Ingram v. Little (1961)
Three old plaintiffs, the joint owners of a car, sold this to a man
pretending to be a Mr. Hutchinson. He paid by cheque, which
bounced and then sold the car on in good faith. The plaintiffs sought
the return of the car or damages for its conversion. HELD: "since the
plaintiffs had made an offer to the real P.G.M. Hutchinson, the rogue
could not accept it."
J. Ravriitzen A S v Wijsmuller B V , the Super Servant Two
(1990) 1 Lloyds Rep 1 CA
In the Super Servant Two the court did not shrink from concluding
that the risk of over commitment fell on the defendants. Was the
contract frustrated? NO because carriers had elected to continue to
use SS II for another fixture. Should put in clause for what should
happen if things go wrong.
Jones v Padavatton (1969) 1 WLR 328
Jones offered a monthly allowance for her daughter to study in
England. Her daughter gave up her job in America to go to England
to take her Bar exams. She was not particularly successful. Jones
bought a house in London and stopped paying the monthly
allowance. Jones allowed her daughter to live in the house and
receive rent off the other tenants. Some years later Jones brought an
action for possession. The daughter counterclaimed for breach of the
agreement to pay the monthly allowance and/or provide her
daughter with accomodation.
HELD: first agreement could have been made with the intention to
create legal relations but was only deemed for a resonable amount of
time. The second agreement was only a family arrangement without
any intention to create legal relations.
Intention and consideration can be easily confused. It has been
established that natural love and affection is not consideration
recognised at law. That is why no consideration was provided for the
wife in Balfour v. Balfour.
The presumption against contractual intention is sometimes rebutted
where the occupation of real property is concerned.
Jones v Vernons Pools (1938)
Plaintiff sued on a football coupon which was said to be binding in
honour only. HELD: not entitled to recover.
Krell V Henry (1903) 2 KB 740 Defendant pleased he was going to rent a room for the day to watch
the coronation. Hire had price which reflected the market demant at
the time. Coronation was cancelled. Contract was frustrated. Court of
Appeal agreed - viewing of coronation was foundation from both
parties point of view.
Kingswood Estate Co v Anderson (1963)
P, in order to obtain possession of the house (under the Rent
Restriction Acts) the Plaintiffs offered the defendant alternative
accomodation and agreed orally that the new tenancy would be for
as long as she or her son lived. Four weeks after she moved the
landlord served a notice to quit and sought possession. HELD: giving
up possession of the protected tenancy of the house and taking
possession of the flat were sufficient acts of part performance and
the oral contract was enforceable.
Loftus v. Roberts (1902)
L, an actress, ws engaged for a provincial tour. The contractual
agreement
provided that if the play came to London L would be engaged at a
salary "to be mutually arranged between us." HELD: that there was
no contract.
This case may be distinguished from the Foley v Classique Coaches
Ltd (1934), where although the parties themselves had not agreed
the terms, they nevertheless agreed on a form of proceeding
whereby the terms could be determined, as by conferring on a court
of law or an arbitrator the power to fill in a term or gap in their
agreement
L'ESTRANGE V GRAUCOB (1934)
The plaintiff bought an automatic cigarette vending machine from the
defendants. She signed an order form which contained the following
term in small print: "any express and implied condition, statement or
warranty, statutory or otherwise not stated herein is hereby
excluded." The defendants gave her a printed confirmation of this
order. When the machine was delivered it did not work satisfactorily
and the plaintiff sought damages for breach of the implied statutory
term that the machine was fir for the purpose for which it was sold.
The defendants sought to rely on the exemption clause, but the
plaintiff argued that she had not read the order form and did not
know what it contained. HELD: as the plaintiff had signed the written
contract and had ot been induced to do so by any misrepresentation,
she was bound by its terms. It was wholly immaterial that she had
not read the document and did not know its contents.
Lloyds Bank v. Bundy (1975)
Bundy, the defendant, had guaranteed his son's company overdraft
with his house charged to the namk to secure progressively larger
amounts. The son's business was in financial trouble. Bundy's
solicitor had informed him not to commit more than £10,000 to his
son's business as this would be greated than the value of the house
but a new assistant manager called to see Herbert Bundy and took a
letter for him to sign which increased the mount of the guarantee
and charge up to an amount of £11,000. The assistant manager did
explain the company's financial position but did not explain its
accounts fully. Bundy signed the documents and six months later the
bank stopped the overdraft facilities for the company that was still in
trouble and proceeded to enforce the charge and guarantee against
Herbert Bundy i.e. selling his house and an action for posession
brought against him.
The Court of Appela set aside the guarantee and dismissed the action
against Bundy as
•
•
•
the bank should have advised the defendant to seek
independant financial aadvice
Failure to do so was a breach of the bank's fiduciary duty to the
defendant
the finding of undue influence was sufficient to dispose of the
matter but Lord Denning went further in his judgment, raising
the matter of "inequality of bargaining power".
Levison v. Patent Steam (1978)
The owner of a carpet requested that it be picked up and taken for
cleaning. When the cleaning company called for it, the owner was
presented with a document containing exclusion clauses. He signed
it,. The cleaning company took away the carpet and a further rug.
The exclusion clauses were held to be incorporated into the contract,
although they did not cover a fundamental breach. The reasoning is
difficult to ascertain, although the Court of Appeal were unanimous.
Maddison v Alderson (1883)
Mrs M was employed as a housekeeper to Mr A, a farmer, for a
number years. A made an oral promise that if M would carry on
working for the rest of A's life without wages he would be his will
leave her a life interest in the farm. A made a will in those terms, but
it was declared void. M sued, alleging part performance. HELD: that
there were many reasons why M might have worked without wages.
The work was equivocal; for example, she might have wanted a
home. It did not follow that she was entitled to a life interest. specific
performance of the oral agreement was refused on the grounds that
the plaintiff's wage-free service up to the date of his death might
have been for reasons other than contract.
Now the requirements of part performance are more relaxed:
The Moorcock (1889):
Appellants agreed with the respondent to use the appellants' jetty
and wharf to load and store cargo from the Moorcock. The riverbed
was owned by a third party. It was beyond the appellants' control
and they had taken no steps to ascertain whether it was safe for the
ship to lie; as was inevitable at low water on each tide. The ship
grounded and suffered damage because of the uneven river bed.
HELD: that appellants were liable as the jetty could not have been
used without the Moorcock grounding. In these circumstances the
appellants were deemed to have impliedly represented that they had
taken reasonable care to ascertain that the river bed adjoining the
jetty was in such a condition as not to cause damage to the vessel.
"What the law desires to effect by the implication is to give such
business efficacy to the transaction as must have been intended at all
events by both parties who are businessmen."
Meritt v Meritt (1970) 1 WLR 1211
Husband, separted from his wife, agreed in writing to transfer the
matrimonial home out of their joint names into her name alone,
provided she paid off the remaining debt. The husband's promise
was held to be legally enforceable after his wife paid off the
mortgage.
HELD: first agreement could have been made with the intention to
create legal relations but was only deemed for a resonable amount of
time. The second agreement was only a family arrangement without
any intention to create legal relations.
Maddison v Alderson (1883)
Mrs M was employed as a housekeeper to Mr A, a farmer, for a
number years. A made an oral promise that if M would carry on
working for the rest of A's life without wages he would be his will
leave her a life interest in the farm. A made a will in those terms, but
it was declared void. M sued, alleging part performance. HELD: that
there were many reasons why M might have worked without wages.
The work was equivocal; for example, she might have wanted a
home. It did not follow that she was entitled to a life interest.
Meritt v Meritt (1970) 1 WLR 1211
Husband, separted from his wife, agreed in writing to transfer the
matrimonial home out of their joint names into her name alone,
provided she paid off the remaining debt. The husband's promise
was held to be legally enforceable after his wife paid off the
mortgage.
(This can be contrasted with Gould v Gould (1970))
Nicolene v. Simmonds (1953)
There was an acceptance of an offer to sell a quantity of steel bars
that stated "I assume that we are in agreement that the usual
conditions of acceptance apply." There were no "usual conditions"
operating between the party. The defendant failed to deliver and the
plaintiffs brought an action for breach of contract. HELD that the
clause specifying "usual conditions" was meaningless and could be
severed from the rest of the contract wthout impairing the sense or
reasonableness of the contract as a whole.
Denning LJ stated that "a distinction must be drawn between a
clause which is meaningless and a clause which is yet to be agreed".
He went on to say that "if one of the parties to a contract inserts into
it an exempting condition in his own facour which the other side
agrees and it afterwards appears that that condition is meaningless
or is so ambiguous that no ascertainable meaning can be given to it,
that does not render the whole contract a nullity."
Pettit v Pettit (1970) AC 777
Observed that although many agreements (between husband and
wife) were not intended to be legally binding, performane of such
agreements might well give rise to legal consequences.
Partridge and Critenden (1968) II All ER
The plaintiff had advertised live birds for sale in a periodical. The
plaintiff was charged with unlawfully offering for sale a wild live bird
contrary to s. 6(1) and sch. 4 of the Protection of Birds Act 1954. It
was held that the plaintiff could not be guilty of the offence and
charged because the advertisment was an invitation to treat and not
an offer for sale.
Photo productions v. Securicor Transport Ltd (1980)
The plaintiffs, factory owners, entered into a contract with the
defendants whereby the defendants would patrol the factory at a
cost of £8 15s per week. The contract was on the defendant's
standard form which included the phrase "Under no circumstances
shall the company (securicor) be responsible for any injurious act or
default by any employee of the company unless such an act or
default could have been foreseen and avoided by the exercise of due
diligence on the part of the company as his employer; nor in any
event, shall the company be held responsible for (a) any loss suffered
by the customer through burglary, theft, fire or any other cause,
except insofar as such loss is solely attributable to the negligence of
the company's employees acting within the course of their
employment ...."
One of the defendant's deliberately started a fire while patrolling the
factory by discarding a lighted match. The flames spread and the
factory was destroyed. The plaintiffs claimed damages from the
defendants. The Court of Appeal applied the "fundamental breach
rule" and held that the contract had been brought to an end so that
the defendants were not able to rely on this clause as excluding their
liability. The House of Lords allowed the defendant's appeal HELD:
1. It was not good law to say that on termination of a contract for a
fundamental breach the contract terms came to an end.
2. The question whether and to what extent an exemption clause
was to be applied to any breach of contract was a question of
construction of the contract.
3. Normally, when the parties were bargaining on equal terms they
should be free to apportion the risks they saw fit.
4. On their true construction, the words of the exclusion clause
covered deliberate acts, and therefore the defendants were relieved
from responsibility for breach of their implied duty to operate with
due regard to the safety of the premises.
Rawlinson v Ames (1925)
Mrs A agreed orally to take a lease of Mrs R's flat. Mrs A requested
Mrs R to carry out
certain alternations which Mrs A supervised. Mrs A refused to
complete, and when sued upon the contract pleaded the Statute of
Frauds and the absence of a memorandum. HELD: that the
alterations made by Mrs R at Mrs A's request clearly constituted acts
of part performance and were "unequivocally referable to the
contract." Accordingly Mrs A must comlete the contract by signing a
proper lease.
Rose and Frank Co v J.R. Crompton Bros (1925)
Commercial agreement: "This agreement is not entered into ... as a
formal or legal agreement, and shall not be subject to legal
jurisdiction in the law courts."
Held: No legally enforceable contract existed.
Sumpter v Hedges [ 1898 ] 1 QB 673
The plaintiff contracted to build two houses for the defendant for
£565. The houses were to be built on land owned by the defendant.
Unfortunately the plaintiff was only able to complete work to the
value of £333 and then left the site. The defendant continued the
work and completed the houses. The plaintiff sued for a quantum
meruit award in respect of the work which he had completed.
Held by the Court of Appeal that the plaintiff was not entitled to a
sum equivalent to the work done because the defendant had no
genuine choice as to whether to accept that work or not. The only
way the defendant could proceed was to finish off the houses from
the incomplete state that the plaintiff had left them in when he
breached the contract and the defendant could not be taken to have
accepted the breach ( thus entitling the plaintiff to a quantum meruit
payment ) simply from this course of action.
Solle v Butcher [1950] 1 KB 671
A flat was rented by the defendant to the plaintiff at a rent of £250
per year. Both parties believed wrongly that the rent on the flat was
not subject to control under the Rent Acts because the legislation did
not apply to new flats. However, the flat (which had been
substantially restructured and renovated ) was held to be an old flat
and thus subject to the Rent Act protection and the maximum rent
was only £140 per year. The plaintiff (the tenant) sued to reclaim the
rent he had overpaid in his first two years of occupation and the
defendant ( the landlord ) counter-claimed by asserting that the lease
was void for common mistake.
Held by the Court of Appeal :
1. The lease could not be void for common mistake at law because
the mistake was as to quality and it was not sufficiently fundamental.
2. The lease could however be set aside in equity ( i.e. it was
voidable ). The criteria relevant in determining the availability of this
remedy were not clear though Denning LJ's view that it should be
available whenever one party had gained an unconscientious
advantage over another by way of a substantial common mistake has
only survived in subsequent caselaw in so far as a substantial mistake
of fact is necessary.
3. As equity is flexible the court was able to set aside the lease upon
terms. The terms were that the plaintiff could either give up the lease
or continue to stay in the flat at a rent of £250.
Simkins v Pays (1955) 1 WLR 975
The defendant, her granddaughter and the plaintiff (a paying lodger)
all entered weekly for a newspaper fashion competition in the
defendant's name. There was no rule regarding the way in which the
payments were paid. One week a prize of £750 was won. The
defendant's refusal to share the prize, the plaintiff sued for a third.
HELD: there was a joint enterprise to which the cash was contributed
in the expectation of sharing any prize. The court could not establish
offer or acceptance but said there was a "mutuality" about the
arrangements.
Schuler v. Wickman (1974)
The respondent's were exclusive selling agents in the UK for the
appellants' presses. The agency agreement provided:
"it shall be a condition of this agreement that (the respondent) shall
send its representative to visit (the siy largest UK motor
manufacturers) at least once every week."
The respondents' committed some minor breaches of this term, and
the appellants terminated the agreement, claiming that by reason of
the term being a condition they were entitled to do so.
The House of Lords held that the parties could not have intended
that the appellants should have the right to terminate the agreement
if the respondents failed to make one of the obliged number of visits,
which in total amounted to nearly 1,400. The termination of the
contract was viewed as unreasonable.
Spiro v Glencrown Properties (1991)
The question of whether an option to purchase land is within s2 of
the LP(MP)A 1989 1989 arose. By a written agreement, the vendor of
land granted anoption to purchase land. The option could be
exercised the same day and take-up of the option was to be signalled
by notice in writing giving the purchaser to the vendor or his solicitor.
The option agreement was executed in two exchanged parts, each
containing the agreed terms and each signed by the party or his
solicitor and exchanged. The purchaser took up the option by written
notice in the agreed manner, but failed to complete.
HELD: that an option to buy land could be defined as a sale of land
within the meaning of the Act. The relevant contract was the
agreement creating the option which consisted of two exchanged
parts, containing all relevant terms and duly signed by or on behalf of
both parties. This duly complied with the requirements of s2 and the
contract could not be set aside as unenforceable merely because the
taking up of the option required some unilateral action on the part of
the purchaer.
Steadman v Steadman (1976)
Up until Steadman v Steadman (1976) the law held that the mere
payment by the plaintiff to the defendant did not amount to part
performance, as the payment could be pursuant to an agreement
other than that alleged.
House of Lords held that an oral contract agreement between a
husband and wife that included an agreement to transfer land was
enforceable under the doctrine of part performance because the
plaintiff had paid the defendant £100 in compliance with one of the
terms of the agreement.
House of Lords held that an oral contract agreement between a
husband and wife that included an agreement to transfer land was
enforceable under the doctrine of part performance because the
plaintiff had paid the defendant £100 in compliance with one of the
terms of the agreement.
SHANKLIN PIER LTD V DETEL PRODUCTS LTD (1951)
Contractors were empployed by the plaintiffs, owners of a pier, to
paint the pier. The contract permitted the plaintiffs to specify the
paint the contractors were to use. The defendant company told the
plaintiffs that the paint they manufactured, known as DMU, would be
suitable for the work and that two coats would have a life of at least
seven years. On the faith of these statements the plaintiffs instructed
the contractors to use two coats of DMU, and the contractors
purchased the paint from the defendants. In fact
the paint only lasted 3 months. The plaintiffs brought an action in
breach of contract against the defendants. The problem was that the
plaintiffs were not party to the purchase contract between the
contractors and the defendants. HELD: the plaintiffs could succeed
because there was a collateral contract between the defendants and
the plaintiffs that the paint would last at least seven years. The
consideration for this contract was the plaintiffs' action in instructing
the contractors to buy DMU from the defendants.
Scammell and Nephew Ltd v. Ouston (1941)
The respondents agreed to purchase a motor-van from the
appellants. The respondents sent an order to appellants thus "this
order is given on the understanding that the balance of the purchase
price can be had on hire-purchase terms over a period of two years."
A dispute arose and the appellants' defence was that there was no
contract until "hire-purchase terms" had been ascertained. HELD:
that no precise meaning could be given to the clause as to "hire
purchase terms". They were too vague, and as there was no previous
trade practice between the parties to guide the court on what was
meant, the contract failed.
Thornton v. Shoe Lane Parking (1971)
The plaintiff had parked his car in the defendant's automatic car
park. At the entrance there was a sign setting out the charges and
stating "all cars parked at customer's risk". As the defendant drove
in, a light changed from red to green and a ticked was pushed at him
by the machine. The transaction was analysed in terms of offer and
acceptance by Lord Denning. Here the contract was said to be made
before the notice was seen so that the contractual liability could not
unilaterally be transferred back to the hotel guests. The plaintiff was
not held to be bound by the notice displayed inside the premises.
Wakeham v Mackenzie (1968)
P had an agreement to move into the house with a widower and look
after him until he died. P paid her share of coal and food in return
that he would leave his house and belongings to her in his will. P
gave up her tenancy of her flat and acted as his housekeeper. She
received nothing in the will. HELD: giving up her flat and paying her
share of the expenses as well as working as his house-keeper were
sufficient acts of part performance as they pointed to and were
consistent with the alleged contract.
Walton Ltd v Walker Homfrays Ltd (1931) 1 Ch 274
Contract not frustrated because hotel owner had forseeability so it
was a breach and he took the consequences.
Woodar v. Wimpey (1980)
A contract for the sale of land provided that on completion the
purchaser should pay £850,000 to the vendor and also £150,000 to a
third party. The vendor claimed damages of wrongful repudiation. In
fact, there was found to be no wrongful repudiation, but the House
of Lords expressed the above views. At the same time, they
suggested that the position at law might be unsatisfactory. The
purchasers' motive in this case was to escape from an unprofitable
transaction, but they honestly believed that they were entitled to the
right they brought.
A contracting party cannot recover damages for the loss sustained by
the third party.
White v. Carter (1962)
The plaintiffs, advertising contractors, had a contract with the
defendant who was a garage proprietor to display advertisments for
the garage on litter bins for a period of three years. On the same day
the defendant changed his mind and requested that the agreement
be cancelled but the plaintiffs refused. The plaintiffs displayed the
advertisments for 156 weeks and then claimed the contract price of
£196 4s. HELD that the plaintiffs were entitled to carry out the
contract and claim the full contract price. They were not bound to
accept the repudiation and sue for the lost profit on the contract as
their damages.
Some were of the opinion that this was an unfair move of the
plaintiffs and that there should have been no recovery of unwanted
wasted expenditure and that the plaintiffs should have mitigated.