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Welcome to our new and improved contract law update series. In this update, we provide a round-up of some of the most significant contract law cases concerning commercial contacts over the course of 2024 to help our clients stay up to date, when drafting and negotiating contracts.
Over 2024 there were a number of interesting cases concerning commercial contracts. We have summarised these cases, which cover the following topics:
Date published
29 January 2025
Limiting primary or secondary obligations |
Costcutter Supermarkets Group Ltd v Vaish and another [2024]
At the beginning of 2024, the High Court considered the difference between an attempt to limit a primary obligation under a contract and a secondary obligation to pay damages.
In this case, the judge decided that the parties had not intended for the cap on liability “arising out of any… breach of liability” to cap the primary obligation to pay for stock, but only the secondary liability to pay damages for breach of a primary duty.
Costcutter contracted with two retailers for the supply of goods to convenience stores that were part of the Costcutter franchise. Under the contract the retailers ordered goods which Costcutter sourced from a third party, National Independent Supermarkets Association (NISA), who delivered to the stores. Costcutter charged the retailer for the actual cost of the goods plus a commission (which was called a ‘Service Charge’).
The contracts stated at clause 19.2: “…the total liability of either party in respect of all acts, omissions, events and occurrences whether arising out of any tortious act, breach of contract or statutory duty or otherwise arising in any particular Contract Year will in no circumstances exceed a sum equal to [five times the Service Charge paid by the Retailer in the previous year]”
In 2014, Costcutter changed its supplier from NISA to P&H and stopped charging the Service Charge. P&H failed to adequately perform under the contract and in the light of the poor level of service provided, the retailers cancelled their direct debits to Costcutter and joined the SPAR group.
Costcutter brought an action in debt for the price of the goods delivered but not paid for, and, in the alternative, sought damages for breach of contract. Costcutter alleged that in failing to pay, the retailers had breached both an implied and express term of the contract, namely to pay for goods supplied.
At first instance, it was held that since the debt arose out of “a breach of contract…or otherwise,” liability was limited under clause 19.2 and since no Service Charge had been paid in the preceding year, no sums were owed. Costcutter appealed.
On appeal, the court recognised that commercial parties are free to make their own bargains and, in the absence of clear words to the contrary, parties did not intend to agree to give up the rights they would otherwise have under the contract.
The court distinguished between a claim in debt and a claim for damages for breach of contract. For a debt claim, the claimant needs to prove performance under the contract, not that they suffered any actual loss following the defendant’s failure to pay, unlike with a claim for damages.
The court also distinguished between primary and secondary obligations under a contract. The obligation to pay (i.e. performance) is a primary obligation; the requirement to pay damages for breach of a contractual term is a secondary obligation. An agreement to restrict the recoverability of damages in the event of a breach can’t be treated as an agreement to excuse performance of that primary obligation.
As a result, the broadly drafted clause 19.2, did not excuse performance of the primary obligation to pay for the goods received. The Court questioned whether a contract could even meaningfully exist if it attempted to exclude liability for performance of primary obligations so that upon delivery of goods, the recipient was permitted to avoid its primary liability to pay and there was no liability for damages.
The Court allowed Costcutter’s appeal and found the retailers liable to repay the cost of the goods ordered.
Excluding liability for wilful default |
Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2024]
This case centred around the losses caused by the publication of an inaccurate research paper. The High Court held that it is a matter of construction as to whether liability for wilful defaults will be excluded.
In this case, the court held that the limitation of liability clause in a research agreement was effective to limit liability for dishonest breach and it was also reasonable under the Unfair Contract Terms Act 1977.
Innovate Pharmaceuticals Limited (Innovate) had obtained a patent on a drug which it hoped to use in the treatment of brain tumours. Innovate entered into a research agreement with the University of Portsmouth Higher Education Corporation (UOP), under which Innovate contributed £50,000 towards the costs of conducting the research into the effectiveness of the drug.
The lead scientist on the project, Dr Hill, published the results in a paper which went on to receive significant criticism. This led to an internal investigation into Dr Hill’s research by UOP and Innovate decided to engage a third-party to repeat the research and verify the results.
Innovate issued a claim against UOP for breach of contract, on the basis that UOP had failed to use all reasonable care and skill in conducting the research and that Dr Hill had been wilfully dishonest in the publication of the results of the research.
The agreement included a liability cap of £1 million, which was applicable to “all claims except where the claim is based upon fraudulent misrepresentation, that is to say a claim on the tort of deceit”. The clause also included broad exclusions for “loss of profits, business, contracts, opportunity, goodwill, revenues, anticipated savings, expenses, costs or other similar loss”.
The court concluded that Dr Hill’s research contained significant inaccuracies and therefore UOP had not used all reasonable care and skill in performing the research. The court considered that it is a matter of construction, rather than a matter of law, as to whether liability for a deliberate act (including fraud) will be excluded - although this did not extend to liability for fraud in inducing a contract, which cannot be excluded.
The court considered that the limitation of liability clause was fair under the Unfair Contract Terms Act 1977, as the clause did not contain a blanket exclusion of liability and the contract had been actively negotiated by the parties with their respective lawyers. The modest price paid by Innovate in proportion to the overall cost of UOP conducting the research was also a relevant factor.
As a consequence, Innovate’s claim for damages in respect of the costs of repeating the work was limited to £1 million. However, Innovate’s additional claim for diminution in value of the patent was dismissed as it was excluded by the limitation clause (and even if it hadn’t been, the limit of £1million has already been exhausted).
This judgment provided a helpful recap of the relevant principles relating to limitation clauses and the exclusion of liability for fraud, as follows:
Single/multiple caps on liability |
Tata Consultancy Services Ltd v Disclosure and Barring Service [2024]
In May, the High Court considered a wide range of issues in assessing claims for delay damages in a tech transformation dispute.
With regard to the limitation of liability provisions, the court had to consider whether the cap on liability was a single, aggregate cap that applied to all claims, or a cap for each claim. It also looked at the difference between loss of anticipated savings and loss of profits.
Please note that the Court of Appeal is due to hear an appeal on this case in March 2025.
Tata Consultancy Services Limited (TCS) entered into an agreement to take over the Disclosure and Barring Services’ (DBS) legacy systems and to build a new system to digitise its processes. The project suffered significant delays and TCS brought a claim for circa £110 million for delay damages. DBS brought a counterclaim for circa £109 million for delay, damages and quality issues which affected the software.
One of the issues was whether TCS’s liability was capped at £10 million for each claim or £10 million for all claims under the agreement. The limitation of liability clause included the following:
"52.2 Subject to clause 52.1, [TCS’s] total aggregate liability:
…52.2.6 in respect of all other claims, losses or damages, shall in no event exceed £10,000,000 (subject to indexation) or, if greater, an amount equivalent to 100% of the Charges paid under this Agreement during the 12 month period immediately preceding the date of the event giving rise to the claim under consideration less in all circumstances any amounts previously paid (as at the date of satisfaction of such liability) by the CONTRACTOR to the AUTHORITY in satisfaction of any liability under this Agreement."
The court also had to consider whether TCS’s claim for loss of anticipated costs savings was, in reality, a claim for loss of profits (which were expressly excluded by the limitation clause).
Single or multiple caps: The High Court held that, although the clause was ‘far from a model of clarity’, the correct construction was that the clause gave rise to a single cap applicable to all claims, losses or damages for the following reasons:
Loss of anticipated savings: although a claimant is entitled to articulate its claims as its sees fit, the judge concluded that a claim for anticipated savings in this case was, in all but name. a claim for loss of profits and was therefore excluded.
Liability caps and set-off |
Topalsson GmbH v Rolls-Royce Motor Cars Ltd [2024] EWCA Civ 1330
Jumping forward to November, the Court of Appeal had to consider whether the cap on liability contained in a services agreement should be applied before or after setting-off each party's claim. It decided that, in the absence of any contractual wording to the contrary, the liability cap should be applied to each party's liability separately before calculating any set-off.
The Court of Appeal also had to examine whether contractual interest fell within the scope of the cap.
Rolls-Royce Motor Cars (RRMC) entered into a services agreement with Topalsson in 2019 for the design and implementation of digital visualisation software, which was intended to allow RRMC's prospective customers to configure and see realistic renderings of the vehicles that they were considering purchasing.
The agreement included the following cap on liability:
Subject to clause [20.1], the total liability of either Party to the other under this Agreement shall be limited in aggregate for all claims no matter how arising to the amount of €5m (five million euros).
Following delays to the project and disputes between the parties, RRMC purported to terminate the Agreement in April 2020 and Topalsson initiated legal proceedings.
In the High Court, the judge found that the agreement had been validly terminated and that RRMC was entitled to termination damages of almost €8 million. She set-off against that sum approximately €800,000 due to Topalsson, then applied the €5 million cap and awarded damages of €5 million to the respondent.
Topalsson appealed, arguing that the set-off exercise to establish the net sum due should be carried out after the application of the cap to the sums due to either party, resulting in a sum of €4.2 million due to RRMC. It also argued that RRMC’s entitlement to contractual interest should also fall within the cap.
Allowing the appeal, the Court of Appeal decided that there was nothing in clause 20 to suggest that the cap only applied once the net financial position between the parties had been calculated. If that had been the intention, the clauses could easily have been drafted to make clear that the cap only applied to “the net liability” of the parties. Instead, the words referred to “the total liability” of either party to the other, which suggest a totting up, rather than a netting off.
The court considered that this construction of the clause also accorded with both commercial common sense and the only existing case on this point.
The second issue of whether the cap on liability applied to interest payable had not been pleaded at trial and it was too late to amend in the appeal. However, the court went on to reject this argument in any event on the basis of the wording of the clause. This was another instance where clear words were needed to deprive a party of their rights and remedies.
Force majeure |
RTI Ltd (Respondent) v MUR Shipping BV (Appellant) [2024]
What ‘reasonable endeavours’ must a party use to overcome a force majeure event? Does this include accepting an offer of non-contractual performance? This was the question that the Supreme Court had to consider in May, in the long running saga of MUR Shipping BV v. RTI Ltd.
Overturning the Court of Appeal, the Supreme Court found that there was no obligation on a party seeking to rely on force majeure to accept the other party’s offer of non-contractual performance (in this case, payment in euros instead of US dollars).
MUR Shipping BV (the Shipowner) and RTI Limited (the Charterer) entered into a shipping contract in 2016 for the carriage of bauxite from Guinea to Ukraine. The specified freight payments were to be made in US dollars.
The contract provided that neither party would be liable for any loss, damage, delay or non-performance caused by a force majeure event, which was defined as an event or state of affairs which meets a number of criteria, including situations that “cannot be overcome by reasonable endeavours from the Party affected”.
In 2018, the US applied sanctions to the Charterer’s parent company. In view of the prospective difficulties and delays for payments in US dollars, the Shipowner served a force majeure notice. Rejecting the notice, the Charterer offered to pay in euros instead and to bear any additional costs or exchange rate losses suffered by the Shipowner. The Shipowner maintained its right to payment in US dollars and insisted that it was entitled to suspend performance of the contract.
The arbitrators decided that the Charterer was entitled to damages for breach of contract as the Shipowner had failed to nominate vessels upon suspension of the contract. The High Court disagreed, deciding that the Shipowner had a contractual right to payment in US dollars. Reversing the decision, the Court of Appeal held that acceptance of the offer to pay in euros would have “overcome” the force majeure event.
The Supreme Court held that there were several principles which provide good reasons for overturning the Court of Appeal’s decision, namely:
In this case, there was clearly a clash between reaching a commercial solution (payment in a different currency) and strict contractual performance. Favouring the latter, the Supreme Court pointed out:
“It is not unmeritorious or unjust to insist on contractual performance, all the more so if being precluded from doing so would introduce uncertainty contrary to the expectations of reasonable business people.”
Whilst there had not been any cases on this issue previously, the Supreme Court went on to consider a number of cases cited by the parties, concluding that such cases also provided support for their decision.
Non-assignment clauses |
Dassault Aviation SA v Mitsui Sumitomo Insurance Co Ltd [2024]
The Court of Appeal held that a clause prohibiting assignment “by a Party” did not capture an assignment to an insurer occurring by operation of Japanese law.
The case is a reminder that parties should consider the scope of non-assignment clauses carefully, particularly where cross-border contracts may trigger the application of different governing laws.
This dispute arose in relation to the supply of two maritime surveillance aircraft and spare parts to be supplied by Dassault Aviation SA (Dassault) to Mutsio Bussan Aerospace Co Ltd (MBA), for onward sale to the Japanese Coast Guard.
Given the onward sale, MBA purchased an insurance policy with Mitsui Sumitomo Insurance Co Ltd (MSI) in respect of the risk of the aircrafts being delivered late (Insurance Contract). The Insurance Contract was governed by Japanese Law. The aircrafts were delivered late and MSI paid approximately 1.8 billion JPY to the Japanese Coast Guard.
MSI sought to recover this sum from Dassault via subrogation. However, Dassault argued that MSI was not entitled to recover such sums as the sale contract between Dassault and MBA (the Sale Contract) included a non-assignment clause. The Sale Contract was governed by English Law and stated at Article 15:
‘this Contract shall not be assigned or transferred in whole or in part by any Party to any third party, for any reason whatsoever, without the prior written consent of the other Party….’
MSI commenced arbitration against Dassault. The arbitrators held that as the transfer had occurred by operation of law (in this case Japanese law), MBA’s claim against Dassault was transferred to MSI and Dassault’s consent was not necessary. Dassault appealed to the High Court which held that the arbitrators had no jurisdiction and that the transfer was voluntary as it was caused by MBA entering the Insurance Contract.
On appeal, the Court of Appeal held that the arbitrators’ interpretation was correct. It considered that the wording of the Sale Contract was not unclear or ambiguous and only prevented a transfer that is effected by a party to the Sale Contract, not by operation of law.
Contract variation by an intermediary |
Advanced Multi-Technology for Medical Industry & Ors v Uniserve Ltd & Ors [2024]
In July, the High Court decided that an intermediary had authority to agree to a variation to a contract for the supply of face masks on behalf of the customer, despite limits on the authority of the intermediary.
The manufacturer, Hitex, entered into a supply contract with Uniserve for the supply of face masks, with Uniserve appointing a third party, Maxitrac as its agent to manage the arrangement.
Maxitrac later agreed a revised schedule of delivery deadline with Hitex, which led Uniserve to refuse payment for the goods. Uniserve argued it was entitled to terminate the contract because the original delivery deadline was still in effect, and Hitex had failed to meet it.
The High Court considered a number of issues in this case, including misrepresentation, breach of delivery obligations and anticipatory breach, as well as the authority of the intermediary. It concluded that the revised delivery deadline applied and Uniserve’s refusal to pay for the masks constituted an anticipatory breach.
On the issue of authority, the judge decided that Maxitrac was authorised to vary the contract, either because it had specific authority to do so (even though it had no general authority to bind Uniserve) or as a result of Uniserve’s conduct. This was based on the following reasoning:
On the issue of anticipatory breach, the court found that by its conduct, Hitex had accepted Uniserve's breach as terminating the contract. However, it was noted that a failure by the innocent party to take action within a reasonable period does not necessarily mean that it has affirmed the contract. The question must be determined having regard to all the circumstances.
Contract variation or replacement |
R (on the application of Cobalt Data Centre 2 LLP and another) v Commissioners for His Majesty’s Revenue and Customs
This appeal to the Supreme Court concerned the availability of a capital allowance scheme arising from expenditure incurred in the construction of buildings in an enterprise zone. The aspect of the judgment that will be of interest to commercial lawyers relates to the analysis of whether the conduct of the parties amounted to a replacement or variation of the contract. In most cases, this will not matter but in some cases (like this one), the result may have statutory consequences.
Parties are generally free to determine whether they are varying or replacing their contract and a court should only reject their intention if accepting it would be so absurd as to bring the law into disrepute.
In summary, two taxpayers appealed against a decision that they were not entitled to enterprise zone allowances (EZAs) under the Capital Allowances Act 2001 in respect of their purchase of the benefit of a 2006 construction contract. EZAs were available provided that the expenditure had been incurred within the statutory time limits.
The construction contract had been entered into within the relevant 10-year statutory period. After expiry of this period, the developer purported to exercise rights under clause 12 of the contract to change the design of the buildings. HMRC asserted that the change orders had varied the contract to such an extent that the buildings had been constructed under a new contract entered into after the expiry of the 10-year period.
The Upper Tribunal found in favour of the taxpayers, and then the Court of Appeal reversed its decision.
The Supreme Court dismissed the appeal, finding that the construction had not arisen from the developer’s exercise of its rights under clause 12. The question of whether the change orders resulted in a variation or a replacement of the 2006 contract did not therefore have a bearing on the outcome of the appeal. However, as the variation issue had been the subject of extensive reasoning in the Court of Appeal, the Supreme Court thought the issue was of sufficient general importance to address it anyway.
HMRC argued that the characterisation of an alteration as a variation or replacement was not a matter primarily governed by the intention of the parties. Instead, it was necessary to identify the alteration and then assess whether it was so fundamental that the new rights and obligations should be regarded as a replacement rather than a variation of the original contract.
After considering various case law, the Supreme Court concluded that the “centrality and force” of the principle of freedom of contract means that, purely in terms of the general common law, parties to an agreement have a wide margin of choice in deciding whether an alteration in their contractual relationship should be achieved by the mechanism of variation or replacement. Generally, this matter should be determined according to their common intention, assessed in the usual objective way. However, it would go too far to say that the general law would give effect to the intentions of the parties to the extent that it brought itself into disrepute and damaged its legitimacy in the eyes of the public.
Incorporation of website terms |
Parker-Grennan v Camelot UK Lotteries Ltd [2024]
In March, the Court of Appeal decided that enough was done to incorporate specific provisions of the relevant game procedures that Camelot sought to rely on, which meant that it avoided paying out £1 million on a National Lottery instant win game.
The case highlights the complexity of balancing the needs of traders to publicise their terms and conditions with the needs of consumers to access and understand those terms.
The claimant, Mrs Parker-Grennan, played a National Lottery instant win game. The prize was predetermined at the point of ticket purchase. During play, the claimant was provided with an animated message indicating a win of £10. However, she also matched a second number indicating a jackpot win of £1 million (but no message was provided). When Camelot refused to pay the jackpot, stating that the supposed match was a result of a Java coding error, the claimant brought a claim. She argued that the gaming instructions conflicted with the terms and conditions, had not been brought sufficiently to her attention and, even if they had, they were unfair by virtue of the Unfair Terms in Consumer Contracts Regulations 1999.
The claim was unsuccessful, and the claimant appealed to the Court of Appeal. The appeal was dismissed on the basis that the terms were sufficiently incorporated, robust and enforceable which ultimately protected Camelot from liability. As a matter of construction, the claimant had won £10 and not £1 million.
Legislative development continues to be outpaced by the speed of technological advancements in the digital era. The general rules for incorporation of terms and conditions remain applicable even though it is accepted that many consumers do not read the ‘small print’ before clicking to confirm “I [have read and] accept the terms and conditions’”. It is important to ensure that reasonable steps are taken to bring relevant terms and conditions to a consumer’s attention irrespective of whether they are read.
The Court of Appeal concluded that this case “squarely raised the issue of what needs to be done to incorporate standard terms and conditions into a contract for goods or services which is made online” and it was time for this area of law to be reviewed.
In order for online terms and conditions to be effective, we recommend that they are:
Contract interpretation - qualifying objectives |
Cantor Fitzgerald & Co v YES Bank Limited [2024]
The Court of Appeal held that the word "private" (in the phrase "private placement, offering or other sale of equity instruments") qualified all of the funding options listed. In doing so, it confirmed that there is a natural assumption that an adjective at the start of the list will qualify all of it, unless otherwise indicated.
The case highlights the importance of careful drafting in relation to the use of qualifying adjectives.
The case concerned the proper construction of a provision in an engagement letter between Cantor Fitzgerald & Co (Cantor) to find “Financing” for YES Bank Limited (YES Bank) in return for a retainer and 2% commission on sums raised. Specifically, the case turned on whether the use of the word "private" in the phrase "private placement, offering or other sale of equity instruments" only qualified "placement" or alternatively qualified "offering or other sale" as well.
YES Bank raised funding via a further public offer (FPO) in which some investors who had been in discussions with Cantor participated. YES Bank denied liability for the commission on the basis that the engagement letter did not extend to an FPO.
The judge in the first instance concluded that the engagement letter was limited to private forms of financing and Cantor appealed.
The Court of Appeal dismissed Cantor’s appeal, concluding that the judge had correctly decided that the concept of "Financing" in the engagement letter referred to private forms of equity financing, and accordingly no commission was due to Cantor.
The judgment focussed on the ordinary meaning of the words and the natural assumption was that an adjective at the start of a list of nouns qualified them all. The parties could have clarified the position to be otherwise, by including “public” in specific parts of the list but they chose not to. The court noted that the factual matrix and the rest of the contract also supported this interpretation.
The Court of Appeal reiterated the approach of Lord Neuberger in Arnold V Britton [2015] AC 1619 para 17:
“First, the reliance placed in some cases on commercial common sense and surrounding circumstances … should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision”
Enforceability of default interest rate clause |
Houssein & Ors v London Credit Ltd & Anor [2024]
In this case, the Court of Appeal decided that the High Court judge had failed to apply the correct test when determining that a default interest rate provision was unenforceable as a penalty.
A court must consider the commercial justification for a higher rate of interest following default and also whether the provision is extortionate, exorbitant or unconscionable.
London Credit Ltd (LC) agreed to loan £1,881,000 to the third appellant, CEK Investments Limited (CEK), for a period of 12 months. The loan was secured by a debenture over CEK’s assets, personal guarantees from CEK’s directors and third-party mortgages over their family home and several buy-to-let properties. Following drawdown of the loan, LCL alleged that a non-occupation covenant had been breached and demanded repayment of the full loan amount, plus default interest.
The main issue in this case revolved around the default interest rate clause in the facility agreement, and whether it constituted a penalty which would render the default interest provision unenforceable.
In the High Court, the judge concluded that in this case the default interest did not protect any "legitimate interest" of LCL and was therefore a penalty. The judge also decided that interest was payable after the repayment date on any unpaid sums at the non-default rate.
On appeal, the Court of Appeal decided that the judge had failed to apply the correct test set out in the Cavendish case, or rather had failed to ask the right questions.
First, he did not address expressly the threshold question, namely whether the default rate of interest was a secondary obligation which was engaged on the breach of a primary contractual obligation. Secondly, it was not clear that the judge was considering legitimate interest alone. Thirdly, the judge did not address the crucial question of whether the provision was extortionate, exorbitant or unconscionable separately or at all. Instead, the judge appeared to be looking for a justification for the default rate of interest rather than considering whether the rate was extortionate.
However, the Court of Appeal did not feel it was able to substitute its own decision for that of the judge as it had not heard all of the factual and expert evidence. The matter was therefore remitted to the trial judge to decide the question again.
In relation to the provisions relating to standard interest, the Court of Appeal held that the judge had misconstrued the provisions. The entitlement to standard rate interest had come to an end once the term date had passed. It held that there was no room for an interpretation which allowed for the standard interest to spring back if default interest was not applicable.
Failure of condition precedent |
King Crude Carriers SA and others v Ridgebury November LLC and others [2024]
In June, the Court of Appeal overturned a High Court decision to hold that a party cannot rely on the non-performance of a condition precedent when that non-performance was caused by its own breach.
Please note that the Supreme Court has given permission to appeal this decision.
The dispute arose out of an agreement for the sale of four shipping vessels. The relevant contract included an obligation for the buyers to pay a deposit once an escrow account was opened, the buyer having provided such documents as were necessary to open that account.
It was accepted that the buyer had failed to provide the required documentation. The seller argued that, due to the buyer’s breach of contract in failing to provide the documentation, which prevented the opening of the escrow account, the condition precedent of opening the account was dispensed with and the deposit was due as a debt. The High Court rejected this, holding that the seller’s remedy was damages for the buyer’s failure to provide the documentation.
The Court of Appeal overturned the High Court’s decision, holding that the buyer was liable in debt for the deposit.
Popplewell LJ conducted a detailed analysis of case law before stating the principle (at paragraph 85):
I would therefore formulate the principle as being that an obligor is not permitted to rely upon the non-fulfilment of a condition precedent to its debt obligation where it has caused such non-fulfilment by its own breach of contract, at least where such condition is not the performance of a principal obligation by the obligee, nor one which it is necessary for the obligee to plead and prove as an ingredient of its cause of action, and save insofar as a contrary intention is sufficiently clearly expressed, or is implicit because the nature of the condition or the circumstances of the case make it inappropriate..
Parties to a contract must not prevent the fulfilment of a condition upon which the contract depends. The case reinforces the longstanding English law principle that a party cannot take advantage of its own wrongdoing.
Contributor: Elizabeth Maloney
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2025. Specific advice should be sought for specific cases. For more information see our terms and conditions.
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