NR/NR
09/03/2016
IN THE COURT OF APPEAL
IN THE MATTER OF
LUCAN
-AND-
ART INTERNATIONAL LIMITED
APPEAL BY THE APPELLANT
SKELETON ARGUMENT
OF THE RESPONDENT
In respect of Appellant’s the first ground of appeal, Respondent avers that the trial judge was
correct in deciding that no contract was made and submits as follows :-
1. Whether there is a contract or not, and what the terms of any contract are, must be judged
objectively (Smith v Hughes [1861-73] All ER Rep 632).
2. Acceptance must be communicated for a contract to come into being. (Felthouse v Bindley
(1863) 11 WR 429).
3. An exception to the general rule (i.e. the Rule in Felthouse v Bindley) may apply in limited
circumstances. Where an apparent acceptance is sent by post, and it is reasonable to use the
post, such acceptance is operative upon posting. However a term in an offer, requiring the
acceptance reach the offeror, sets that exception aside (Holwell Securities v Hughes [1974] 1
All ER 16). It is submitted that the general rule must be applied in the instant case.
4. An offer may be revoked or withdrawn before it is accepted (Routledge v Grant (1828) 4 Bing
643).
5. It is submitted that there was a term in Respondent’s offer requiring acceptance reach them, and
any reasonable bystander would say ‘of course there was!’. The Respondents withdrew their
offer before there was an operative acceptance, therefore no contract existed at the time they
revoked their offer.
Alternatively if the Court finds for the Appellant on Ground 1 the Respondent avers in respect of
Ground 2 that the trial judge was correct in deciding that the mistake both parties were labouring
under was such as to render any apparent contract void and unenforceable and submits as follows :-
1. There was a common assumption that the painting was a specific painting (viz. ‘Deer at Bay’)
Neither party had warranted this. Although not the fault of either party, that assumption was
incorrect. Consequently performance of the contract is impossible; the specific painting must be
delivered and it cannot be. (Great Peace Shipping Ltd. v Tsavliris (International) Ltd. [2002]
All ER (Comm) 999).
2. Respondent’s belief that the painting in Appellant’s possession was ‘Deer at Bay’ was
reasonable. The subject matter of the contract was radically different from that believed to exist
at the time the contract was made (Associated Japanese Bank (International) ltd. v Credit du
Nord SA & Another [1988] 3 All ER 902).
3. The continued existence of ‘Deer at Bay” is in doubt. (Couturier v Hastie (1856) 5 HL Cas 67).
In any event Appellant does not and never did own it. (s.12(1) Sale of Goods Act 1979).
4. If the Court finds the contract not void, it is submitted that Equity should grant recission. There
has been no delay (Leaf v International Galleries [1950] 2 KB 86). Neither party would suffer
harm if they were returned to their pre-contractual positions, whilst that the respondent would
suffer a substantial wrong if he were to be held to the strict contract.
5. Statute- and case-law must be interpreted compatibly with Convention rights (HRA 1998).
NR/NR
09/03/2016
IN THE COURT OF APPEAL
IN THE MATTER OF
LUCAN
-AND-
ART INTERNATIONAL LIMITED
APPEAL BY THE APPELLANT
LIST OF AUTHORITIES
SUBMITTED BY THE RESPONDENT
Case Citations per Rule 8.a
Smith v Hughes
[1861-73] All ER Rep 632
Felthouse v Bindley
(1863) 11 WR 429
Routledge v Grant
(1828) 4 Bing 643
Holwell Securities v Hughes
[1974] 1 All ER 16
Great Peace Shipping Ltd. v Tsavliris (International) Ltd (“The Great Peace”)
[2002] All ER (Comm) 999
Associated Japanese Bank (International) Ltd v Credit du Nord s.a. & anr.
[1988] 3 All ER 902
Couturier v Hastie
(1856) 5 HL Cas 673
Leaf v International Galleries
[1950] 2 KB 86.
Statutory and other Authorities per Rule 8.c
Sale of Goods Act 1979
[1979 c.54]
Human Rights Act 1998
[1998 c.42]