“Default Rate means a rate of interest per annum equal to LIBOR plus ten per cent. (10%) per annum; Delivery means delivery of the Aircraft on lease by Lessor to Lessee hereunder … Delivery Location means Dubai, United Arab Emirates, or such other location as may be agreed by Lessor or Lessee …”
“(a) Status: Lessee … is the holder of all necessary air transport licences required in connection therewith and with the use and operation of the Aircraft … (e) Authorisation: all authorisations, consents, registrations and notifications required by Lessee in connection with the entry into, performance, validity and enforceability of, this Agreement and the other Operative Documents and the transactions contemplated by this Agreement and the other Operative Documents, have been (or will on or before the Delivery Date have been) obtained or effected (as appropriate) and are (or will on their being obtained or effected be) in full force and effect …”
“… it is pertinent to remind you that one of the major reasons we entered into the Lease Agreement is to participate in the airlift of Pilgrims from Nigeria to Saudi Arabia for 2016 Hajj operations and subsequent Hajj operations, within the Lease period. To attest to this fact, find attached copy of letter of appointment dated 11.05.2016 from National Hajj Commission of Nigeria … Unfortunately however on 15-june-2016 we received a letter from the National Hajj Commission of Nigeria conveying the decision of Saudi Arabia General Authority of Civil Aviation (GACA) to exclude Azman … from participating in 2016 Hajj airlift of Pilgrims from Nigeria to Saudi Arabia on the flimsy excuse of non designation and economic and security requirement. Attached herewith is a copy [of] the said letter … In view of the foregoing therefore, we regret to inform you that we will not be able to participate in the airlift of Pilgrims for 2016 Hajj operations. However since Hajj operations is an annual events [sic] we are hopeful to participate next year and subsequent years …”
“[43] However, Associated Japanese … shows that there are cases where a defence of common mistake can succeed even though performance of the relevant contractual obligation is possible (in that case payment by a bank under a guarantee). This suggests that the true test may rather be whether the nonexistence of the state of affairs renders performance of the contract in accordance with the common assumption impossible … [46] Associated Japanese is also of importance because it demonstrates that a defence of common mistake can succeed even if it is on the face of the contract perfectly possible for the defendant to do precisely what he has contracted to do …”
“Throughout the law of contract two themes regularly recur — respect for the sanctity of contract and the need to give effect to the reasonable expectations of honest men. Usually, these themes work in the same direction. Occasionally, they point to opposite solutions. The law regarding common mistake going to the root of a contract is a case where tension arises between the two themes.”
“Various words are to be found to define the state of things which make a condition. “In the contemplation of both parties fundamental to the continued validity of the contract,” “a foundation essential to its existence,” “a fundamental reason for making it,” are phrases found in the important judgment of Scrutton L.J. in the present case. The first two phrases appear to me to be unexceptionable. They cover the case of a contract to serve in a particular place, the existence of which is fundamental to the service, or to procure the services of a professional vocalist, whose continued health is essential to performance. But “a fundamental reason for making a contract” may, with respect, be misleading. The reason of one party only is presumedly not intended, but in the cases I have suggested above, of the sale of a horse or of a picture, it might be said that the fundamental reason for making the contract was the belief of both parties that the horse was sound or the picture an old master, yet in neither case would the condition as I think exist. Nothing is more dangerous than to allow oneself liberty to construct for the parties contracts which they have not in terms made by importing implications which would appear to make the contract more businesslike or more just. The implications to be made are to be no more than are “necessary” for giving business efficacy to the transaction, and it appears to me that, both as to existing facts and future facts, a condition would not be implied unless the new state of facts makes the contract something different in kind from the contract in the original state of facts … We therefore get a common standard for mutual mistake, and implied conditions whether as to existing or as to future facts. Does the state of the new facts destroy the identity of the subject-matter as it was in the original state of facts? To apply the principle to the infinite combinations of facts that arise in actual experience will continue to be difficult, but if this case results in establishing order into what has been a somewhat confused and difficult branch of the law it will have served a useful purpose.”
“[61] Where this leaves the common law doctrine of mistake, as it seems to me, is as follows. First, the doctrine is not based on an inquiry into the subjective beliefs of the parties but on an objective analysis of what they agreed. Second, the doctrine does not rest on the notion that the parties have impliedly agreed what is to happen in the event that an assumption underlying the contract proves to be false. It does, however, involve a question of construction of the contract. It is only where it is to be inferred from the terms of the contract or the surrounding circumstances that the contract was never intended to apply in the situation which in reality existed when the contract was made that the doctrine will apply. Such an inference will be drawn only if the difference between the state of affairs on which the contract was premised and the actual state of affairs is sufficiently fundamental. Thus, the doctrine of mistake can only apply if there is a gap in the contract. If the parties have expressly or impliedly agreed what is to happen if they turn out to have been mistaken about the matter in question - in other words, if the risk of the mistake has been allocated by their contract - there is no scope for the doctrine … [63] One way - although not the only way - in which the risk of a mistake may be contractually allocated is by one party warranting that the relevant state of affairs exists. [64] The main reason why pleas of mistake seldom succeed is that the risk of a mistake is usually allocated by the contract to one of the parties. Plainly, there is no room for the doctrine to operate if the contract states expressly what is to happen if the relevant assumption proves to be false. It may be harder to determine whether the contract impliedly allocates the risk … In practice in such a case the answer is likely to be found through construction of the contract.”
“Get Austin develop audited financials for Azman Oil & Gas that is at least 10X times that of Azman Air to avoid complications, make sure you carefully examined [sic] it before forwarding. They just need to see attractive paper not reality”
“Q. We will come on to the communication you get from [NAHCON] saying that you have not got your approval in a moment but if we can take things in stages, I just want to be clear, Mr Patel was obviously relying on you for information about where the Hajj approval process had got to and what you appear to be saying in this document is that the only basis on which it could be cancelled, on which it might not get approval, is if it becomes obvious to the authorities that you cannot meet the deadline and do you agree with me that is what you are telling me here? A. Yes, because at that time there was not any reason that we could think of because it never happened to anybody in Nigeria before, so unless we couldn't prove that we had a contract arrangement with leasing company or we have our own aircraft there was no reason for us to be excluded. Q. So it would be reasonable, would it not, for someone reading this to take it that provided you concluded leases GACA approval would be forthcoming? A. Yes, if we had done that in good time.”
“Q. If, for the sake of argument, you had managed to trade through the three-month Hajj period and had then got Hajj approvals for 2017/2018/2019/2020, this would have still been a very profitable transaction for you, wouldn’t it? A. Yes.”