A reward was made by the Government of Western Australia for information leading to the arrest and conviction of the murderers of two police officers.  Clarke gave the information after he had been arrested for this crime and the court held that he had not done so in reliance on the offer, but with the intention of saving himself from the unfounded charge.

In an agreement made in 1930, Hillas agreed to buy 22,000 trees during the 1930 season.  A clause in that agreement stated that the buyers had the option of entering into a contract with the sellers to buy 100,000 trees during 1931 at a reduction in price of 5% off the official list price.The buyers tried to exercise the option to enter into a new contract but the defendants had already sold the wood to another party.  Hillas sued for damages for breach of contract and the defendants argued that the contract was too uncertain to be performed.  The court held that the agreement was binding and was enforceable contract as the parties had a history of previous dealings.

The parties entered into a contract under which the Government agreed to sell 'the whole of the tentage which might become available in the UK for disposal up to 31 March 1923'.  The relevant terms were:

• the price to be paid and the date of payment to be agreed from time to time between the parties as the tents become available and offered for sale
• all disputes are to be decided by an arbitrator

Classique Coaches entered into an agreement to buy all their petrol from Foley 'at a price to be agreed by the parties from time to time'.  There was also an arbitration clause in the contract in case of a dispute.  After Classique Coaches had bought their petrol from Foley for three years, Classique Coaches tried to end the contract on the grounds that there was no agreement in writing about the price.  The court held that the agreement was valid and binding and if any dispute arose about the reasonable price, the parties had agreed it would be determined by arbitration.

Ouston agreed to buy a van on hire-purchase over two years but before the agreement could be entered into and before any terms were settled Scammell refused to proceed.  When Ouston sued for damages for breach of contract Scammell argued there was no contract because the terms were too uncertain.  The court held that the terms were too vague to form a contract.

Simmonds was offering to sell some steel bars.  Nicolene Ltd accepted their offer stating that 'I assume that we are in agreement and that the usual conditions of acceptance apply'.  Simmonds did not deliver the steel bars and Nicolene Ltd sued for breach of contract.  The court held that the clause 'usual conditions' was meaningless because there were no 'usual conditions' operating between the parties.

Invitation to Treat 

Manchester City Council decided to sell council houses to tenants and told its town clerk to create a simple form to create quick agreements which dispensed with the legal formalities.  Mr Storer applied to buy his council house, and on 9 March 1971 the town clerk wrote to him stating 'I understand you wish to buy your council hosue and I enclose the Agreement for Sale.  If you will sign the Agreement and return it to me, I will send you the Agreement signed on behalf othe Council, in exchange'.  The Agreement for Sale had been completed with details including the purchase price, the amount of the mortgage and the monthly repayments, although the date the tenancy was to cease and the mortgage repayment begin had been left blank.  On 20 March Mr Storer signed and returned the Agreement, but before the town clerk had signed the Agreement for the Council, the Council changed political control and discontinued sales unless contracts had already been exchanged.  Mr Storer sought specific performance alleging a binding contract.  The court held that a binding contract had been concluded.  The Council's intention was to become contractually bound when Storer had signed the Agreement and returned it, particularly as there was definite language used in the correspondence and there was a clear offer and acceptance.
 

The Council had a policy of selling council houses to tenants.  Mr Gibson applied on a printed form for details of the price and mortgage terms.  The council treasurer wrote to Mr Gibson stating that the Council 'may be prepared to sell the house to you at the purchase price of £2,725 less 20% = £2180'.  The letter gave details of the morgage and stated 'If you want to make a formal application to buy the property, please complete the enclosed applicaiton form and return it to me as soon as possible.'  Mr Gibson completed the form and returned on 5 March.  He wrote again on 18 March asking the Council to complete the purchase in line with his application.  Again the Council changed political control prior to contract exchange so Mr Gibson sought specific performance in the courts, claiming that he had accepted the Council's offer in his letters of 5 and 18 March.  The court held that there was no contract as no offer which was capable of acceptance had been made by the council.

Displays of Goods for Sale

Pharmaceutical Society of GB v Boots Cash Chemists Ltd [1953] - 1 All ER 482 - The display of goods on a supermarket shelf is an invitation to treat

Boots were charged with an offence under the Pharmacy and Poisons Act 1933 s18 which created an offence of selling poisons without the supervision of a registered pharmacist.  Boots operated a self-service system where customers would collect goods from the shelves and pay for them at the cash desk where a registered pharmacist was working.  The court had to determine when the sale took place to decide whether the offence had occurred.  The prosecution argued that the sale / contract was formed when the customer picked up the goods from the shelf.  If this were the case then the customer would not be able to change their minds and put it back because the shopkeeper could insist on payment.  The court preferred the common sense view that the contract was formed when the customer offers to buy a specific article at the cash desk and the pharmacist accepts the offer.  As the contract wasformed at the cash desk the sale took place under the supervision of a registered pharmacist so Boots were not guilty.

This case was first heard in Bristol Magistrates’ Court on 3 February 1960. On appeal, the case went to the Queens Bench Division.  On 14 December 1959, the Chief Inspector of Police, Mr Fisher, brought charges against Mr Bell. Mr Bell owned a shop and displayed a flick knife in his shop window. The knife had a ticket behind it stating ‘ejector knife – 4 shillings’.  Mr Bell was charged with offering the knife for sale, contrary to s1(1) of the Restriction of Offensive Weapons Act 1959. The prosecution claimed that displaying the knife with a price attached amounted to an ‘offer for sale’. The words ‘offer for sale’ were not defined in the Restriction of Offensive Weapons Act 1959 so the judges gave the words the meaning from contract law so that the display was merely an ‘invitation to treat’. Mr Bell was not guilty.
 

Lord Denning stated that vending machines and automatic ticket machines are making offers since, once the money has been inserted, the transaction is complete.
 

Newspaper Advertisements

Partridge v Crittenden [1968] 

An advertisement for the sale of wild birds was placed in a magazine.  The claimant was charged with ‘offering for sale’ wild live birds contrary to the Protection of Birds Act 1954.  It was held that the advert was an ITT so he was acquitted.
 

The defendants issued an advertisement in which they offered to pay £100 to anyone catching the flu after having used one of their smoke balls in a specific manner.  They placed £1000 in the bank to show their good faith.  Mrs Carlill followed the directions when using the smoke ball and then caught the flu.  The defendants refused to pay.  It was held that the advertisement was not an ITT but an offer to the whole world and therefore a contract was made with anyone who performed the condition ‘on the faith of the advertisement’ (McKendrick)
 

An offer was made to sell some land for £1000.  An offer was made in response to buy the land for £950.  The second offer was refused so an attempt was made to accept the 1st offer, which was also denied.  It was held that there was no contract between the parties as the 2nd offer was a counter-offer.

An offer was made to sell some iron.  The offeree requested payment terms.  The request was ignored and the iron was sold to a third party.  The offeree accepted the offer before he heard of the withdrawal. The acceptance was held to be valid as the request for information did not change the terms of the offer and the revocation was not communicated.

The court refused to enforce a promise by the husband to give his wife £50 per month, whilst he was working abroad.  This decision was made as a matter of policy in order to keep the law out of marriage.

The claimants were appointed sole agents of the defendants by an agreement which contained a clause “regulating their business obligations by mutual promises which fall short of legal obligations” (Atkin).  The HL held this to be an honour clause and therefore there was no legally binding contract.

A landlady, her lodger and her granddaughter entered a competition on a weekly basis.  They agreed that if they won they would share he prize between them.  The entries were in the name of the landlady but she refused to share when they won.
The presumption was successfully rebutted.

The court enforced a promise by a husband to transfer ownership of the marital home to his wife upon full payment of the mortgage.  The court will enforce clear agreement where the parties are separating or separated.

Termination of Offer 

An offer was made to lease premises with a statement that the offer would be kept open for 6 weeks.  Three weeks later, the offer was withdrawn and then attempted to be accepted.  There was held to be no contract as the offeror is free to withdraw the offer at any time before acceptance.
 

It was held that an offer to buy shares which was made in June could not be accepted as late as the following November.  The offer was not accepted within a reasonable period of time, bearing in mind the fluctuating price of shares.
 

An offer to sell a house was made with a statement that the offer would be kept open until Friday at 9am.  On Thursday, the agent of the vendor told the offeree that the property was to be sold to a third party. The offeree attempted to accept the offer.  It was held that there was no contract as the agent had communicated the revocation effectively.
 

A man bought a house, with a mortgage and let his son live in the house.  He stated that if they paid off the mortgage then they house would be theirs.  The father died and the executor of his will tried to revoke the agreement.  The CoA held that the father’s promise was a unilateral contract and the son had embarked upon performance, therefore the offer could not be revoked.
 

Manchester Council decided to sell some property by tender and stated that when accepting the successful tender they would do so by letter to the address on the tender.  They accepted the def’s tender but did so by post, to the def’s surveyor.  The method of communication of acceptance was defined by the offeror and therefore it was for the offeror to waive strict compliance with the terms, provided that the def was not adversely affected.
 

£1 was paid to secure an option to purchase a house.  The CoA held this option to be enforceable stating,  “... anything of value, however small the value, is sufficient consideration to support a contract at law” (Cairns LJ)
 

The def promised to exchange contracts on a property if the cl produced a banker’s draft.  The cl produced the draft but the def refused to proceed.  The CoA held that the promise amounted to a unilateral offer and production of the draft amounted to acceptance.
 

Contents of a Contract 

Detel assured the pier owners that their paint would last for 10 years if used on the pier. The pier owners told the painters to use Detel products on the basis of their assurance. The paint lasted 3 months. The pier owners had a contract with the painters and the painters had a contract with Detel. The pier owners sued Detel. It was held that the assurance amounted to a collateral contract and therefore the pier owners could succeed in such an action.

A singer failed to take up a role in an opera until a week after the season had started. It was held that her promise to perform as from the first performance was a condition and its breach entitled the management to treat the contract as discharged.

A singer was engaged to sing for a whole season and to arrive 6 days in advance to rehearse. He arrived 3 days in advance.  It was held that breach of the rehearsal clause amounted to a breach of warranty.

A contract was made between the parties to unload the cl’s vessel at the def’s wharf. Both parties knew that the vessel would ground at low tide.  The vessel grounded and was damaged.  It was held to be an implied term that the bed of the river would not damage the vessel.
The implication must be ‘necessary to give the transaction such business efficacy as the parties must have intended’.

A contract was made to sell tinned fruit in boxes of 30 tins. When delivered some of the boxes contained only 24 tins.  Even though the overall amount was as ordered this was held to be a breach of s13

The cl contracted with D to advertise their products by flying over towns with a banner attached stating ‘Eat Batchelors Peas’.  The pilot was to telephone D each day to  approve for his plans. He failed to do this on November 11 1937 and flew over a town square during the 2 minutes silence on Armistice Day. This annoyed the residents of the town and resulted in a boycott of Batchelors products.  D sought damages and a declaration of release of contract. It was held that due to the seriousness of the breach, D would succeed.

Griffiths had very sensitive skin.  She bought a Harris tweed coat which caused her dermatitis. 
This was held not to be a breach of s14(3) as she should have informed the seller of her peculiarity.

“Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it in the agreement, they would testily suppress him with a common ‘Oh of course’” per Mackinnon LJ.

An explosive was delivered with some coal.  Even though the coal was merchantable the goods were not.
 

D leased a shop from the cl and he also lived on the premises.  When the lease was renewed the cl added a new term into the written contract stating that the premises were only to be used for business purposed.  The parties verbally agreed that D could continue to live on the premises.  Subsequently the cl changed his mind, stating that D was in breach of the terms of the contract. The verbal assurance by the cl was held to be a separate or collateral contract so the cl’s action failed.

Hong Kong Fir Shipping v Kawasaki Kisen Kaisha Ltd [1962] 

D chartered a ship to the cl for 24 months.  The ship spent less than 9 weeks of the first 7 months at sea due to breakdowns and necessary repairs.  It was held that the factual consequences did not entitle cl to repudiate the contract as they had not been deprived of the whole benefit of the contact. CoA stated that the classification of terms into conditions and warranties was not enough and should also include innominate terms.  Diplock LJ stated that the remedy for the breach of such a term depended on the factual consequences of the breach.  If the factual consequences were sufficiently serious, termination was possible, but not otherwise.

D had the sole right to sell the cl’s goods in the UK.  The agreement contained provisions relating to promotion of the goods and one such provision was called a condition.  D failed to carry out the ‘condition’ of promotion and the cl therefore argued that there was a right to terminate the contract for breach of it.
It was held that the word ‘condition’ would produce an unreasonable result if used in it’s technical sense and therefore the cl’s action failed.

A tenancy contract contained only the obligations owed by the tenants.  The HL implied a term that the council should take reasonable care to keep the common parts of the block of flats in a reasonable state of repair and then stated that the council had not broken this term.

Rogers bought a ‘new Range Rover’ for £16,000.  It had defects in the engine gearbox and bodywork.  After several attempts at repair the car still didn’t work properly so Rogers sued.
It was held that there was a breach of s14(2).  As the car was described as new and a Range Rover, this gave rise to expectations above those relating to a more modest car.

Bernstein bought a new Nissan car for £8,000 which stopped working after 140 miles and 3 weeks.  Whilst it was held that there was a breach of s14(2) Bernstein was only entitled to damages and not to repudiate the contract as he was deemed to have ‘accepted’ the car.  

On a sale and lease back transaction, the cl bought 4 machines from Bennett, then leased them back to him.  Bennett received over £1 million.  As a condition of the transaction, Bennett’s obligations were guaranteed by D.  Both banks believed that the machines existed and were in Bennett’s possession.  After failing to keep up the payments under the lease it was discovered that the machines never existed.  Bennett was declared bankrupt and the cl sought to enforce the guarantee against D.  D argued that the guarantee was void as the machines didn’t exist.  It was held that the guarantee was subject to the existence of the machines so the cl action failed.

The sale of a forged painting between art dealers was held not to be a breach of s13 as the buyer relied on his own judgment so there was not a sale by description. 

Sufficiency of Consideration 

The cl, a sailor had been promised extra pay by his captain to perform his duties after 2 of the crew had deserted.  It was held that the cl had undertaken to cover for such emergencies in his existing contract.  There was therefore no consideration for the extra pay.
 

Mr Thomas left his wife, the use of his house and the contents of the house.  His executors carried out his wishes stating that Mrs Thomas was to pay £1 per year in ground rent and maintain the house.  The court stated that the £1 per year and the maintenance amounted to good consideration.  The court was looking for ‘something which was of some value in the eyes of the law’.

A son wrote a promissory note to his father.  The father stated that he would not enforce this note if the son stopped complaining about the father’s will.  The court held that not complaining was not valid consideration as the son had no right to complain in the first place.
 

17 crew out of 36 had deserted and only 5 of the remaining crew were able seamen.  They agreed to continue the voyage for extra pay.  The master refused to pay when they reached port.  It was held that the seamen had acted over and above their contractual obligations and had provided sufficient consideration for the extra payment.
 

2 people who were members of a charity, were entitled to vote on the method of the disposal of the funds of that charity.  They decided to vote for each other’s candidates.  The def failed to vote.  The court held that Bolton had provided sufficient consideration
 

A landlord and tenant negotiated for the tenant to buy the lease.  At the same time, the landlord served the tenant with a notice to repair premises within 6 months or forfeit the lease.  The tenants stated that they would not commence repairs until a decision was made regarding the lease.  The negotiations begin and then break down.  6 months from the time of the notice, the landlord serves notice to quit
It was held that the negotiations had the effect of suspending the notice and the 6 month period ran form the time when the negotiations ended.
 

Cl negotiated to pay off an outstanding debt to the D and in return the D promised not to enforce the debt through the court.  When the debt was paid off, D claimed interest but the cl refused.
HL, upholding the rule in Pinnel’s case,  held that D was entitled to the interest and the cl gave no consideration in return for the promise not to enforce the debt through the court.
 

Mine owners were fearful of violence from striking miners.  The company wanted more police protection than the police were prepared to offer. Glasbrook offered to pay the police to provide an extra service which the police did not think necessary.  Glasbrook then refused to pay.  HL, as a policy decision, held that the police had done more than their existing duty and were therefore entitled to the extra payment. 
 

During the war, the claimants leased a block of flats for half the previous price.  In 1945 the flats were fully occupied and the claimant put the rent back to normal. 
It was held that sufficient notice had been given to reinstate the full rental but no claim could be made for the reduction in rent during the war time period.  Denning J stated that their promise was relied upon and equity would prevent them from going back on their promise.             
 

A mother was under a statutory duty to maintain her child.  The father had promised to pay the mother £1 per week providing that the child was happy.  The mother enforced the payments in the courts as she had promised to do more than her legal duty, thereby providing good consideration.
 

As a promotional activity, Nestle offered records to the public for a small sum of money and 3 chocolate wrappers.  When Chappell sought their royalties the court decided that the wrappers were part of the consideration.  It was held that trivial acts may be held to amount to consideration as they have been requested by the promisor it is not for the court to assess their adequacy.
 

The builders were owed some money by the defendant.  They were in financial difficulties and knowing this, the defendant offered to pay a smaller sum.  The builders reluctantly agreed and when the cheque cleared, they sued.
HL upheld the rule in Pinnel’s case and found in favour of the claimant.
 

There was a contract to build a tanker with terms such as price and method of payment agreed.  The seller refused to complete unless credit agreement was increased by 10%.
The buyer reluctantly consented and then claimed duress.
As he failed to act swiftly to avoid the contract he was therefore unable to avoid the contract.
 

Roffey Brothers held a contract to refurbish some flats.  They subcontracted the carpentry work to Williams for £20,000.  Before completion, Williams ran into financial trouble, partly due to underpricing and it appeared that they were unable to complete their work.
In order for D to avoid a penalty clause in their main contract, they offered to pay an extra £10,300 to the cl upon completion.  D failed to pay and the cl sued.  D relied on Stilk v Myrick [1809] stating that Williams had provided no consideration for an additional promise, but CoA enforced the promise.    
 
Glidewell LJ stated that if there is a promise of additional payment, which provides a practical benefit or obviates a disbenefit to the promisor, in the absence of economic duress or fraud, then such a benefit is capable of being consideration for the promise, so that the promise will be legally binding.
Glidewell LJ stated that Williams refines and limits Stilk v Myrick [1809] but does not overrule it.  The remaining crew on the deserted ship were bound by their original contract, at no real disadvantage to them.  For Williams to complete at the original price, even if they could, would have meant working at a loss.  It was also in Roffey’s interest to fulfill their main contract, avoid their penalty clause and avoid the trouble and expense of engaging other carpenters as a result of which they freely promised the extra payment.
 

The court stated that gaming chips in a casino are not consideration.  They are merely a mechanism for allowing a customer to gamble without money.
 

Selectmove stated that they would pay off their outstanding tax bill to the Inland Revenue by installments.  The IR claimed that the deal was not binding as the company had an existing duty to pay tax and had given no further consideration.
The CoA stated obiter that Williams v Roffey [1991] should apply here but Foakes v Beer [1884] was the authority.  IR would get a practical benefit and letting the company pay by installments would allow the company to stay in business and therefore the IR would be more likely to get the tax.
 

The court had to decide where the contract lay between the pupil, his master and their set of chambers.
The CoA said that nothing was required of a pupil which is not beneficial to that pupil.  Under the rules of the bar, any work done, of value, must be paid for.  They stated that there is no consideration between a master and his pupil and therefore no contract.  There is however, consideration between a pupil and his set of chambers.  The chambers establishes links with a pupil which could benefit them later on.
 

Past Consideration 

The def was convicted of murder and asked the cl to get him a pardon from the King.  The cl achieved this, then the def promised to pay him £100.  He failed to pay and the cl sued.  It was held that on these facts the cl was entitled to the money as the acts he carried out were at the specific request of the def.
 

Two men promised to pay a sum of money to each of their children upon their marriage to each other.  One father paid, the other died.  The children sued the estated of the dead man for the sum promised, but it was held that they had not provided consideration for the promise.  Such an action might well succeed now, under the Contracts Act 1999.
 

Casey completed works for the defs who then wrote to him, detailing the amount of money which they would pay him.  The court said that Casey was entitled to the money due to the nature of the relationship between himself and the defs.
 

Dunlop had a contract with Dew & Co to sell their tyres at a minimum price.  Dew & Co sold tyres to Selfridge under the same terms and with a penalty clause if they breached the minimum price.  Selfridge breached the contract and refused to pay the penalty.  Dunlop sued Selfridge but the HL held that Dunlop had provided no consideration for this promise.  The HL stated 2 principles:
Only a person who is a party to that contract may sue on it
In order to enforce a promise, the person seeking to enforce it must have provided consideration.
 

A man left his house to his children in his will.  One of the children made improvements to that house, then sought and gained a promise from her siblings that they would compensate her for the expense.  When the house was sold they refused to pay and it was held that as the promise came after the act, the consideration was past.
 

Restraint of Trade 

D owned a gun manufacturing business.  He sold the business and goodwill to a company.  D agreed not to engage in a similar business for 25 years worldwide, or compete in any other business carried on by the buyer.
HL held that the latter part of the covenant was invalid as it would restrain the seller from competing if the buyer started to make ploughshares for example and the seller had sold no such business.  This part of the clause was severed.
The remainder of the covenant was valid as it was a very specialist business and there were only a limited number of customers so that the restriction was not wider than was necessary to protect the company and it was not contrary to public interest.
‘The general rule is that... all interference with individual liberty of action in trading, and all restraints of trade themselves... are contrary to public policy and therefore void... unless... justified by the particular circumstances of the case’ per Macnaghten LJ.  In order for a restraint of trade to be valid it must be reasonable in the interests of the parties (by providing no more than adequate protection to the party in whose favour it is imposed)  and it must be reasonable in the interests of the public (by not being injurious to the public).
 

Mason was employed as a debt collector in Islington.  His job was to collect installments but he had no duties outside of Islington.  Mason agreed not to enter into similar employment for 3 years within a 25 mile radius of London.
HL held that the clause covered an area greater than reasonably required for the protection of his former employees and so was invalid.  Provident Clothing asked the court to interpret it or sever it in order to uphold it.  Lord Moulton stated that the real sanction of these covenants is the expense and terror of litigation which the employee can ill afford and that the clause was intended to be penal rather than protective.  As Provident were not thinking of protecting their business, but hoping to paralyse Mason’s earning capacity, they should take the consequences.
HL confirmed that restraints of trade are prima facie void but may be upheld if reasonable.
 

D sold his imitation jewellery business which was based in London and advertised in the national papers.
The sales agreement stated that “D will not, for a period of 2 years deal in real or imitation jewellery in any part of UK, France, Russia, Spain, etc”
CA held that the covenant was too wide in area and activity and went beyond protecting a legitimate interest so they severed the defective parts (underlined) without altering  the nature of the clause.
 

Lamont was employed by cl as head of tailoring in a department store.  His contract included a restraint which covered such activities as milliner; draper; tailor; haberdasher etc, within a 10 mile radius of the Store.  Lamont went into business  within the 10 miles.  Attwoods sought an injunction. 
CA held that the activity in the clause was too wide and that the legitimate interest which required protection went only so far as tailoring.  The injunction was refused.
CA refused to sever the clause on the grounds of public policy.  They stated that severing the clause would encourage employers to write unreasonable clauses and wait for the courts to interpret them.  They stated that Attwoods were not ‘endeavouring to protect what they have, but to gain a special advantage they could not otherwise secure’.
As this was an employment contract, the parties were not of equal bargaining power.  This case is to be distinguished from Goldsoll v Goldman [1915] which concerned a business contract where the parties were of more equal bargaining power.
 

A solicitor’s clerk, who was approaching retirement, had agreed not to practice within a 7 mile radius after leaving his employment.  The restriction was of unlimited duration but was reasonable given the nature of the profession concerned and the need to protect the employer’s clientele.  The court considered the relationship of trust between the clerk and the clent and the client’s willingness to travel as a result.
 

The courts will examine the restraint to see if its effect would unduly reduce the availability of a particular individual or service
 

D owned 2 garages which were subject to solus agreements with Esso.  H agreed to buy all his petrol from Esso in return for a small discount.  The agreement in relation to one garage was for four and a half years.  In relation to the second garage the agreement was for 21 years and was tied to a loan.  An injunction was sought to prevent Harper from buying petrol from another supplier. 
“I think it better to ascertain what were the legitimate interests of the appellants which they were entitled to protect and then to see whether these restraints were more than adequate for that purpose”, per Reid LJ.
HL held that exclusive dealing agreements were within the restraint of trade doctrine.  They upheld the first agreement but stated that 21 years was unreasonable as it went beyond what was necessary to protect Esso’s legitimate interest in maintaining a stable system of distribution.
 

A restraint of trade in a partnership agreement between general medical practitioners was held to be void.
The partners entered into a partnership agreement, which contained a restraint not to practice as a medical practitioner within 10 miles of his previous practice for 5 years. 
CA held that the covenant was excessive as the phrase ‘medical practitioner’ encompassed too wide an activity and would even include consultant.
 

A clause restraining a GP from practising medicine within a certain area was held to be too wide in activity by the courts. It would include hospital work and was therefore void.
 

Skilton was a milkman employed by the cl.  His contract included a clause not to sell milk or dairy produce for 1 year to any customers of his former employer.
CA held the clause could be interpreted rationally as intending to cover only milk as the cl only sold milk.
 

Francis worked for the cl as a hairdresser.  Her contract contained an agreement not to work as a hairdresser within half a mile radius for 12 months.  D  went to work 150 yards from the cl’s business.   The legitimate interest to be protected was the clientele and the covenant was reasonable.  A declaration was granted to the cl as the 12 months had expired by the time the case was resolved.
 

D, an unknown song writer, entered into a contract with Sony publishers for exclusive rights to his songs for 5 years.  Sony were not obliged to publish anything and could terminate the contract on a month’s notice.  D had no such right, indeed if his loyalties exceeded £5,000 in the 5 year period then the contract was automatically extended for another 5 years.  D claimed it was unreasonable on grounds of public policy.
It was held that the agreement fell within the doctrine of restraint of trade but the agreement was one-sided and so was unreasonable.
 

The cl brought an action against D for an infringement of their patent rights for absorbable sutures.  An interlocutory injunction was granted at first instance and reversed by CA.
HL restored the injunction and stated that such an interlocutory injunction will be granted where:
There is a serious issue to be tried not a frivolous / vexatious claim.  See also Lansing Linde v Kerr [1991]
Damages at the time of full trial would not be an adequate remedy
(NOTE: Test to be run twice, once on behalf of cl and once on behalf of D)
If at the interlocutory stage the injunction is granted (in favour of the cl) and at full trial the court overrules, would damages compensate D?; and
If at the interlocutory stage the injunction is denied (in favour of D) and at full trial the court overrules, would damages compensate cl?
The balance of convenience
This would include existing production costs and any ensuing loss of employment etc.
To preserve the status quo
If the court was still in any doubt whether to grant an injunction or not, the court would preserve the status quo and allow D to continue. 
 

Harris was executive director of Littlewoods mail order business.  A clause in his contract restrained him from working for a particular competitor and all its subsidiaries for 12 months.
CA held the clause was reasonable.  Denning LJ stated that it was not necessary to make the clause void because of unskilful drafting and that courts should interpret such clauses where necessary to construe a restraint clause in relation to its intended purpose.  The clause was worldwide but was interpreted to cover the UK in order to be reasonable. 
 

A restraint of trade in a partnership agreement, preventing a retiring partner acting for the firm’s clients for 5 years was held to be reasonable by PC.
The cl argued that the covenant was excessive bearing in mind the large size of the firm and that he had no contract with most of the clients.  PC held that D’s legitimate interest was the goodwill of the whole firm and therefore the covenant was reasonable.
 

Lobb Garages had an agreement to purchase D’s petrol exclusively for 21 years.  It was part of an arrangement, including a loan and a land leaseback contract, which was designed to benefit the cl.  The tie for 21 years was reasonable as the arrangement had break clauses after 7 years and after 14 years so that the claimants were not locked in for the full term.
 

Fowler left Faccenda Chicken’s employ and started a similar business in the same area using sales information he had gained from the cl.  Faccenda brought an application for an injunction and damages but there was no restraint clause in Fowler’s contract and the CA refused to imply one unless the employment was continuing.
Goulding J stated that there are 3 types of confidential information: trade secrets, confidential information and other information which includes information already in the public domain.  An employee is not entitled to disclose ‘trade secrets’, either during or after his employment, regardless of whether there is an express stipulation to this effect, and further, the employee is not entitled to disclose confidential information during his employment only, but if there is a need for further protection then there is a need for an express term in the contract.
 

Where the full hearing would only be held at or about the time of the expiry of the restraint, an interim injunction will only be granted where there was not only a serious issue to be tried but the cl was more likely than not to succeed at full trial.
 

Panayioutou v Sony Music entertainment [1994] 

George Michael sought to claim that his recording contract was void and unenforceable as an unreasonable restraint of trade.  It was held that the contract was valid and reasonable.  At the time of formation, he had separate advice and an experienced negotiator.  No undue influence or improper pressure had been exerted on D at the time of the contract
 

Dawney Day & Co Ltd v De Brocnier d’Alphen [1997] 

CA stated that an employer has a legitimate business interest in protecting a stable workforce.  This case now allows clauses of non-enticement / non-poaching.

 

Misrepresentation

Attwood was selling a mine and made exaggerated statements as to it’s earning capacity.  D sent experts to assess the mine’s capacity who agreed with Attwood.  D bought the mine and discovered the truth.
HL held that the purchaser had relied upon his own experts so the action failed.
 

The buyer of a gun did not examine it so that when the seller hid the defect, it was not relied upon.  The buyer could not therefore claim misrepresentation as there had been no inducement.
 

It was held that a representation that land was ‘fertile and improvable’ was not a fact, but mere sales talk.
 

The buyer of a phosphate mine worked the mine for a short while before discovering the misrepresentation.
It was held that the contract could be rescinded on condition that the buyer hand back the mine and account for any profits he had made which would be deducted from the return of the purchase price.
 

The cl, a solicitor, sold his practice to D.  Before the sale, the cl told D that the practice earned around £300 pa.  D was given the opportunity to examine the accounts but did not do so.
D relied upon the misrepresentation, even though he had the opportunity to discover the truth.
 

Directors of a company invited the public to subscribe for bonds on the basis that the money raised would be used to expand the business.  In fact the money was to be used to pay off debts. 
The court held that the directors had misrepresented their actual intention.
 

The cl put up a hotel for sale, describing their tenant as ‘most desirable’, whereas they knew that he had not paid his rent. The court held that the statement was more than opinion as the representor was in a position to know the facts better than the other party and therefore it amounts to a statement of fact.
 

A purchaser of land asked the vendor’s solicitors whether the land was subject to any restrictive covenants.  The solicitor said that he wasn’t aware of any but he did not say that he had not bothered to check.   It was held that although the solicitor’s statement was true, it amounted to a misrepresentation as it was misleading.
 

This case concerned the lease of premises to be used as a chicken farm.  The misrepresentation made was that the premises were hygienic.  The chickens died and the staff became ill so an action was brought for an indemnity. 
They claimed the money for the rent, money for the chickens and money for the repair of the drains.  The court stated that the chickens were not an indemnity but the rest is recoverable.
 

The cl wanted to buy a horse for stud purposes.  Whilst examining D’s horse, D said “you need not look for anything, the horse is perfectly sound”.  After the sale, the cl discovered the horse was not fit for stud purposes.  The statement was held to be a term.
 

A rogue bought a ring and paid by cheque.  The rogue sold the ring to a pawnbroker before the cheque was dishonoured.  As title had already passed to the pawnbroker, the jeweller was unable to recover the ring.
 

A vendor of a farm in New Zealand, which had not been used for sheep farming before, represented to a prospective buyer that the land could carry 2000 sheep.
The vendor’s statement was held not to be a false statement of fact but a statement of opinion which he honestly held.  The land had never been used as a sheep farm and both parties were equally able to form an opinion as to its carrying capacity.
 

Negotiations for the sale of a medical practice began at a time when the practice was valued at £2000.  Due to ill health the vendor had been unable to work and by the time of the sale the practice had become worthless.  It was held that the vendor was under an obligation to disclose the change of circumstances to the buyer.
 

D sold a painting to Leaf, representing that it had been painted by Constable.  5 years later when Leaf tried to sell the painting, he discovered it was not by Constable.  He sought rescission.
It was held that the remedy was lost as it had not been exercised within a reasonable amount of time.  Denning LJ stated that the claim should have been for damages.
 

The cl took a wedding dress to the defendant’s shop to be cleaned.  She was asked to sign a receipt and was told that the shop was not liable for damage caused to the beads and sequins on the dress.  The clause in fact stated that the shop would not accept liability for any damage however arising.  When the dress was damaged the def sought to rely on the full exclusion clause.  It was held that the cl signed the receipt due to misrepresentation and therefore she was not bound.
 

The seller of a bike stated that the bike was a 1942 model.  One week later the parties entered into a written agreement which does not mention the date.  The buyer later discovers that the bike is a 1930 model. 
The statement was held to be a representation as there was an interval.
 

The cl bought a second hand lorry from D which was described as being in ‘exceptional condition’.  He was told that the lorry did 11 miles to the gallon.  At home the cl found the dynamo didn’t work and it did less miles to the gallon.  The cl told D about the faults and he offered to pay half the repair bill.  The cl agreed and took the lorry on a long trip.  The lorry broke down and the cl wanted to rescind.
Held that by the time the cl sent the lorry on a long journey he had affirmed the misrepresentations and accepted the lorry in full knowledge of the condition and performance of the vehicle.
 

D sold a second hand car to the cl.  The registration book which was examined by the cl said that the car was a 1948 model when it was in fact 1939 model.  D had no special knowledge of the date of manufacture of the car.
The statement was held to be a representation.
 

D sold his car to a rogue in exchange for a cheque.  The cheque bounced but the car and the rogue had disappeared so D could not rescind the contract.  He informed the police and the AA but by the time the car was traced, the rogue had sold the car to dealers who were aware of the fraud and they had sold it on to an innocent third party.
CA held the rescission to be valid as D had informed the police and the AA before title had passed on the car.
The case has been criticised because the loss falls on the innocent third party purchaser.
 

The cl asked D, a car dealer, to find him a Bentley car, which they did.  D told the cl the mileage and the history of the car.  The cl bought the car and then discovered the mileage was different.  The statement was held to be a term.
 

D wished to hire barges from the cl and during negotiations, the cl misrepresented the capacity of each barge.  When D discovered the truth they refused to continue to hire the barges.  Cl sued for the hire charges and D counterclaimed damages under s2(1).  The cl obtained the capacity from the insurance documents instead of the ships’ documents and failed to show ‘objectively reasonable grounds’ for disregarding the ships’ documents.
 

The cl bought a thoroughbred horse and trained it for 2 seasons.  The cl then discovered that the pedigree had not been correctly described and sought to recover the purchase price and training fees.  There was a breach of contract but the measure of damages in contract was minimal.  By claiming misrepresentation cl was able to recover the price and the fees he had occurred in keeping the horse until its sale.
 

The cl bought some land from D for £5 million in order to develop it.  By the time they had obtained planning permission the land was worth less than half the purchase price.  The builders found a sewer buried under the land so the cl tried to rescind the contract for misrepresentation and mistake and recover the purchase price.
 
CA held that due to the price of rectifying the mistake, £18,000, there was no misrepresentation so that rescission was not available.  CA discussed the method the courts should use in deciding whether to award rescission or damages.
The court should consider the importance of the representation compared to the contract
In this case the representation is worth £18,000 to correct and the contract is worth £5 million
The court should consider the loss that would be caused by the representation if the contract were upheld, in this case £18,000
The court should consider the loss incurred if rescission was granted
The council would have to return £8 million including interest, in exchange for land now worth £2 million.
On these facts, CA held that damages would be more appropriate.
 

Held:  An intentional wrongdoer is liable for the actual damage flowing from fraudulent misrepresentation.  Foreseeability of such damage is irrelevant.  The innocent party should be compensated for the actual loss, including any consequential loss and this is to be measured by comparing his position before the inducement with his position due to reliance on it.
 
Lord Browne-Wilkinson stated 7 propositions for assessing damages for fraudulent misrepresentation.
1. D is bound to make reparation for all damage directly flowing from the transaction
2. Whilst the damage need not be foreseeable, it must be directly caused by the transaction
3. In assessing damage the claimant may recover the full price paid less any benefit he has received from the transaction
4. As a general rule, benefits include the market value of any property acquired at the date of acquisition, unless this prevents the cl from obtaining compensation
5. Exceptions to the rule include
Where the misrepresentation continues to operate after the date of acquisition to induce the cl to retain the asset.
Where the cl is locked into the property
6. The cl is entitled to recover consequential loss caused by the transaction
7. The cl must take all reasonable steps to mitigate
 

The Spice Girls contracted to advertise mopeds with Aprilia.  At the time of making the contract there were 5 Spice Girls but at the time of advertising there were only 4.  The court held that the Spice Girls were under an obligation to disclose the change of circumstances.
 

Misrepresentation

Attwood was selling a mine and made exaggerated statements as to it’s earning capacity.  D sent experts to assess the mine’s capacity who agreed with Attwood.  D bought the mine and discovered the truth.
HL held that the purchaser had relied upon his own experts so the action failed.
 

The buyer of a gun did not examine it so that when the seller hid the defect, it was not relied upon.  The buyer could not therefore claim misrepresentation as there had been no inducement.
 

It was held that a representation that land was ‘fertile and improvable’ was not a fact, but mere sales talk.
 

The buyer of a phosphate mine worked the mine for a short while before discovering the misrepresentation.
It was held that the contract could be rescinded on condition that the buyer hand back the mine and account for any profits he had made which would be deducted from the return of the purchase price.
 

The cl, a solicitor, sold his practice to D.  Before the sale, the cl told D that the practice earned around £300 pa.  D was given the opportunity to examine the accounts but did not do so.
D relied upon the misrepresentation, even though he had the opportunity to discover the truth.
 

Directors of a company invited the public to subscribe for bonds on the basis that the money raised would be used to expand the business.  In fact the money was to be used to pay off debts. 
The court held that the directors had misrepresented their actual intention.
 

The cl put up a hotel for sale, describing their tenant as ‘most desirable’, whereas they knew that he had not paid his rent. The court held that the statement was more than opinion as the representor was in a position to know the facts better than the other party and therefore it amounts to a statement of fact.
 

A purchaser of land asked the vendor’s solicitors whether the land was subject to any restrictive covenants.  The solicitor said that he wasn’t aware of any but he did not say that he had not bothered to check.   It was held that although the solicitor’s statement was true, it amounted to a misrepresentation as it was misleading.
 

This case concerned the lease of premises to be used as a chicken farm.  The misrepresentation made was that the premises were hygienic.  The chickens died and the staff became ill so an action was brought for an indemnity. 
They claimed the money for the rent, money for the chickens and money for the repair of the drains.  The court stated that the chickens were not an indemnity but the rest is recoverable.
 

The cl wanted to buy a horse for stud purposes.  Whilst examining D’s horse, D said “you need not look for anything, the horse is perfectly sound”.  After the sale, the cl discovered the horse was not fit for stud purposes.  The statement was held to be a term.
 

A rogue bought a ring and paid by cheque.  The rogue sold the ring to a pawnbroker before the cheque was dishonoured.  As title had already passed to the pawnbroker, the jeweller was unable to recover the ring.
 

A vendor of a farm in New Zealand, which had not been used for sheep farming before, represented to a prospective buyer that the land could carry 2000 sheep.
The vendor’s statement was held not to be a false statement of fact but a statement of opinion which he honestly held.  The land had never been used as a sheep farm and both parties were equally able to form an opinion as to its carrying capacity.
 

Negotiations for the sale of a medical practice began at a time when the practice was valued at £2000.  Due to ill health the vendor had been unable to work and by the time of the sale the practice had become worthless.  It was held that the vendor was under an obligation to disclose the change of circumstances to the buyer.
 

D sold a painting to Leaf, representing that it had been painted by Constable.  5 years later when Leaf tried to sell the painting, he discovered it was not by Constable.  He sought rescission.
It was held that the remedy was lost as it had not been exercised within a reasonable amount of time.  Denning LJ stated that the claim should have been for damages.
 

The cl took a wedding dress to the defendant’s shop to be cleaned.  She was asked to sign a receipt and was told that the shop was not liable for damage caused to the beads and sequins on the dress.  The clause in fact stated that the shop would not accept liability for any damage however arising.  When the dress was damaged the def sought to rely on the full exclusion clause.  It was held that the cl signed the receipt due to misrepresentation and therefore she was not bound.
 

The seller of a bike stated that the bike was a 1942 model.  One week later the parties entered into a written agreement which does not mention the date.  The buyer later discovers that the bike is a 1930 model. 
The statement was held to be a representation as there was an interval.
 

The cl bought a second hand lorry from D which was described as being in ‘exceptional condition’.  He was told that the lorry did 11 miles to the gallon.  At home the cl found the dynamo didn’t work and it did less miles to the gallon.  The cl told D about the faults and he offered to pay half the repair bill.  The cl agreed and took the lorry on a long trip.  The lorry broke down and the cl wanted to rescind.
Held that by the time the cl sent the lorry on a long journey he had affirmed the misrepresentations and accepted the lorry in full knowledge of the condition and performance of the vehicle.
 

D sold a second hand car to the cl.  The registration book which was examined by the cl said that the car was a 1948 model when it was in fact 1939 model.  D had no special knowledge of the date of manufacture of the car.
The statement was held to be a representation.
 

D sold his car to a rogue in exchange for a cheque.  The cheque bounced but the car and the rogue had disappeared so D could not rescind the contract.  He informed the police and the AA but by the time the car was traced, the rogue had sold the car to dealers who were aware of the fraud and they had sold it on to an innocent third party.
CA held the rescission to be valid as D had informed the police and the AA before title had passed on the car.
The case has been criticised because the loss falls on the innocent third party purchaser.
 

The cl asked D, a car dealer, to find him a Bentley car, which they did.  D told the cl the mileage and the history of the car.  The cl bought the car and then discovered the mileage was different.  The statement was held to be a term.
 

D wished to hire barges from the cl and during negotiations, the cl misrepresented the capacity of each barge.  When D discovered the truth they refused to continue to hire the barges.  Cl sued for the hire charges and D counterclaimed damages under s2(1).  The cl obtained the capacity from the insurance documents instead of the ships’ documents and failed to show ‘objectively reasonable grounds’ for disregarding the ships’ documents.
 

The cl bought a thoroughbred horse and trained it for 2 seasons.  The cl then discovered that the pedigree had not been correctly described and sought to recover the purchase price and training fees.  There was a breach of contract but the measure of damages in contract was minimal.  By claiming misrepresentation cl was able to recover the price and the fees he had occurred in keeping the horse until its sale.
 

The cl bought some land from D for £5 million in order to develop it.  By the time they had obtained planning permission the land was worth less than half the purchase price.  The builders found a sewer buried under the land so the cl tried to rescind the contract for misrepresentation and mistake and recover the purchase price.
 
CA held that due to the price of rectifying the mistake, £18,000, there was no misrepresentation so that rescission was not available.  CA discussed the method the courts should use in deciding whether to award rescission or damages.
The court should consider the importance of the representation compared to the contract
In this case the representation is worth £18,000 to correct and the contract is worth £5 million
The court should consider the loss that would be caused by the representation if the contract were upheld, in this case £18,000
The court should consider the loss incurred if rescission was granted
The council would have to return £8 million including interest, in exchange for land now worth £2 million.
On these facts, CA held that damages would be more appropriate.
 

Held:  An intentional wrongdoer is liable for the actual damage flowing from fraudulent misrepresentation.  Foreseeability of such damage is irrelevant.  The innocent party should be compensated for the actual loss, including any consequential loss and this is to be measured by comparing his position before the inducement with his position due to reliance on it.
 
Lord Browne-Wilkinson stated 7 propositions for assessing damages for fraudulent misrepresentation.
1. D is bound to make reparation for all damage directly flowing from the transaction
2. Whilst the damage need not be foreseeable, it must be directly caused by the transaction
3. In assessing damage the claimant may recover the full price paid less any benefit he has received from the transaction
4. As a general rule, benefits include the market value of any property acquired at the date of acquisition, unless this prevents the cl from obtaining compensation
5. Exceptions to the rule include
Where the misrepresentation continues to operate after the date of acquisition to induce the cl to retain the asset.
Where the cl is locked into the property
6. The cl is entitled to recover consequential loss caused by the transaction
7. The cl must take all reasonable steps to mitigate
 

The Spice Girls contracted to advertise mopeds with Aprilia.  At the time of making the contract there were 5 Spice Girls but at the time of advertising there were only 4.  The court held that the Spice Girls were under an obligation to disclose the change of circumstances.
 

Exemption Clauses

The cl left some goods in the railway cloakroom.  He paid the money and received a ticket.  On the face of the ticket were printed the words ‘see back’ and on the back of the ticket was a limitation clause stating that the company would not be responsible for the value of any goods in excess of £10.  A notice containing the same condition was also displayed in the cloakroom.  Parker claimed he had not read the ticket or the notice and so the limitation clause should not apply when he claimed in excess of £10.  Mellish LJ stated that the test was “whether the defendant did what was reasonably sufficient to give the cl notice of the condition...”
 

Pratt sold some seeds to Wallis which were of a different type than described.  There was a clause in the contract which excluded warranties.  The court held this to be a breach of condition and therefore it was not covered by the clause
 

The clause considered was ‘Customers’ cars are driven by your staff at customer’s sole risk’.
Negligence was not expressly excluded but any ordinary, literate and sensible person would read the exemption clause as excluding the liability for the negligence of their drivers so that the clause is effective.
 

Singer sold Andrews a ‘new’ car but on delivery had such a mileage that it could not be considered new.  Singer sought to rely on an exemption clause which referred to implied terms but the court held that ‘new’ was an express term.
 

The pl bought an automatic cigarette vending machine from the defendants.  She signed a form headed ‘sales agreement’ which contained a clause in small print stating that it excluded liability for ‘all conditions or warranties, express or implied’.  When the machine didn’t work she sought damages for a breach of an implied term stating that she had not read the exclusion clause, so the defendants could not rely on it.
It was held that the cl was bound by the agreement because she had signed it.
 

On hiring a deck chair, the cl was given a ticket with a price on the front and an exclusion clause on the back.  The deck chair gave way and he suffered personal injury.  Barry used the exemption clause as a defence but it was held that the ticket was a mere receipt, not a contractual document.
 

The pl gave the defendants some linen to be washed.  It was lost and pl sued for damages to replace it.  There was an exemption clause which stated that liability for loss or damage was limited. It was held that the only liability which could arise from the loss of the linen was negligence therefore the clause could be applied to limit that liability and the damages payable.
 

A contract was made at the hotel reception desk.  In the hotel room was a notice excluding liability for articles lost or stolen.  When the pl made a claim for stolen jewellery, the hotel used the exclusion clause as a defence.  The CoA held that notice of the clause was given after the contract was made and therefore it was not incorporated.
 

The cl took a wedding dress to the defendant’s shop to be cleaned.  She was asked to sign a receipt and was told that the shop was not liable for damage caused to the beads and sequins on the dress.  The clause in fact stated that the shop would not accept liability for any damage however arising.  When the dress was damaged the def sought to rely on the full exclusion clause.  It was held that the cl signed the receipt due to misrepresentation and therefore she was not bound.
 

A car insurance policy excluded liability for damage caused whilst the car is carrying an ‘excess load’.  An accident involving the car, happened whilst there was an extra person in the car.  The word ‘load’ was held to be ambiguous and therefore the exclusion clause did not apply.
 

In a contract for the hire of a tradesman’s bike there was a clause stating that D was not liable for ‘any personal injuries to the riders’.  The bike was defective and the saddle broke.  The claimant was thrown off the bike and was injured. 
The cl sought damages under 2 heads of liability, strict liability, ie that the bike was not fit for the purpose it was required, and negligent liability, ie that they had not exercised reasonable care and skill in maintaining the bike.
Lord Denning stated that if there are two possible heads of liability then an exemption clause will be construed as exempting D only from his strict liability and not from liability for negligence.
 

The parties had regularly done business with each other on the same basis therefore even when the contract was not sent until afterwards the exclusion clause was held to be valid.
 

The cl arranged for shipment of a car on the defendant’s ferry.  There was a previous course of dealing but there was no consistency in the terms.  Sometimes the cl was asked to sign a risk note which excluded liability and sometimes he wasn’t.  On this occasion he wasn’t asked to sign it and the ferry sank.  He claimed that the exclusion clause was not incorporated.  Lord Pearce said that it is the consistency of a course of conduct which gives rise to the implication that in similar circumstances a similar contractual result will follow.
 

The cl parked his car in an automatic car park. At the entrance to the car park was a notice with the charges, stating that cars were parked at the owner’s risk. The cl received a ticket from the automatic barrier which referred him to conditions displayed on the premises.  In the garage was a notice excluding liability for personal injury.  The cl was injured in the car park and sued for negligence.
CoA stated that the contract was made when cl put his money into the machine and the exemption on the ticket came too late as the ticket was a mere receipt. 
 

The cl had used a garage for repairs for 3 or 4 transactions over a period of 5 years.   The courts are less willing to find incorporation where one party is a consumer.  This was held not to be sufficient to amount to a course of dealing.
Does the wording of the clause cover the damage?
The clause stated, ‘The company is not responsible for damage caused by fire to customer’s cars on the premises’.  It was held that fires may occur from many causes, only one of which is negligence.  An exemption clause which excludes liability for negligence must be clearly written and this clause was incorporated.
 

Both companies hired out heavy earth-moving equipment.  D hired a crane from the cl which sank in a marsh.  The cl then sent out a form setting out the conditions of hire which were similar to those used by all plant-hiring firms.  The cl sought to recover the cost of the crane and D said that the conditions were not incorporated.
Although there was limited previous dealing between the two companies, the exemption clause was held to be incorporated into the contract as the two companies were commercial and in the same trade.
 

The HL stated that limitation clauses are to be construed differently from total exclusion clauses.
 

Pl bought seed from D with whom they had contracted for many years.  The conditions of sale on the invoice limited liability to replacement or a refund.  The seed supplied was of inferior quality.  Following planting, the pl lost £61,000.
HL held that the clause was unenforceable as it should be fair and reasonable to allow reliance on it.
 

The parties had dealt together on 11 previous occasions.  The defendants were counterclaiming for the loss of goods due to the pl’s negligence.  The cl relied on an exclusion clause in their standard terms and due to a course of successful previous dealing and the fact that both companies were commercial the clause was held to be incorporated.
 

A private company in the export business bought a car for its directors to use for both business and personal use.  A clause in the sales agreement sought to exclude liability for condition or quality of the car or fitness for purpose.  There were defects with the car which made it unfit for use.  The cl brought an action to recover the money they had paid under a breach of SOGA 1979 s14(3).  For the clause in the sales agreement to apply, the cl must have been acting as a business.  The CoA looked to the definition of business to be found in the Trade Descriptions Act 1968 and held that the cl were not in the business of buying cars so the clause did not apply.
 

A prospective purchaser applied for a mortgage.  The mortgage company asked for a valuation.  The applicant signed a disclaimer about the accuracy of the survey and the valuation. The valuation was negligently prepared and the purchaser claimed damages in tort.  D argued the disclaimer as a defence in order to exclude liability for negligence.
HL held that it was not fair and reasonable for mortgagees (such as the mortgage company) and valuers to impose the risk of loss due to their incompetence or carelessness on purchasers, given the high cost of houses and the high interest rates payable by purchasers, per s2(2) UCTA 1977.
 

The parties had a contract for D to supply and install software to create a database of eligible poll tax payers.  The software contained an error so that the pl suffered loss.  D sought to rely on a limitation clause which would limit their liability to £100,000
CA held that the clause was unreasonable as D had insurance cover of £50 million and could not justify the limit of £100,000, and D was in a better bargaining position than the pl as there were a limited number of companies available to complete such work.