“As against that party, the other cannot by reference to any contract term … (b) claim to be entitled:- (i) to render a contractual performance substantially different from that which was reasonably expected of him, or (ii) in respect of the whole or any part of his contractual obligation, to render no performance at all except in so far as (in any of the cases mentioned in this subsection) the contract term satisfies the requirement of reasonableness.”
“Tender based on whole estate over five years. If stop short how do we recover other abortive costs”. 81. I made this note at my meeting with Mr. Bailey. We knew that the earlier stages of the project would not be profitable and the project would only generate a real profit for our practice towards its latter stages. Therefore if for any reason the contract came to an end prematurely, HDA may be penalised by having front loaded its investment in the project in the interests of a later return. I wanted to know what compensation Westminster would be offering us to reflect this loss should the situation arise. This is what I meant by recovering the abortive costs and I made the note to remind myself to discuss the issue with David Wickersham. 82. The second note says: “Only if HDA default or Westminster does not have enough money”. 83. This note I made in my meeting with Mr. McClinton when he raised the question of the circumstances in which it was intended the twenty-eight day notice period would apply. He had said that in his experience of building contracts, he had not come across a situation where a client could simply terminate a contract at will. Habitually, there would have to be default on the part of the contractor for this to be operable. We therefore assumed that the same applied here but we agreed that I was to check. I expressed my concern to Mr. McClinton about Westminster running out of money as this had previously been suggested and I was concerned that if this happened they may use this clause…. 89. (xxii) [which Mr. Wright told me in his oral evidence was a note made during his meeting with Mr. Wickersham and Mr. Berry] The second note here says: “1.7 David W said that this would only apply if Programme stopped for more than a year or if Westminster sold the estate – private – or ran out of money which is unlikely as money had been set aside in budgets. Also, if HDA not did perform or went into liquidation etc. 90. It continues: “Westminster want HDA to look after whole estate. May be lots of little other jobs – including windows, roofing, decs etc.” 91. When we came to discuss this clause, I said to David Wickersham that I was happy with the 28 day clause but only on the understanding that it would only apply if HDA defaulted on the contract. He said that the alternative would be if Westminster didn’t have enough money and we agreed that it applied only in those two circumstances. He said Westminster would be very unlikely to run out of money because it was budgeted for. On that basis I was happy with this clause and I told Mr. McClinton and Mr. Bailey this when I discussed it with them after my meeting with Mr. Wickersham and they were reassured. 92. (xxiii) This note [beside the provision that paragraph 1.8 of the RICS 1981 Conditions should be deleted] says: “How would disputes now be settled”
“1.8 Disputes settled by RICS or arbitration” 94. This is what David Wickersham said when I asked him in the meeting and I agreed.”
“The expression “implied term” is used in different senses. Sometimes it denotes some term which does not depend on the actual intention of the parties but on a rule of law, such as the terms, warranties or conditions which, if not expressly excluded, the law imports, as for instance under the Sale of Goods Act and the Marine Insurance Act … But a case like the present is different because what it is sought to imply is based on an intention imputed to the parties from their actual circumstances.”
“I am satisfied that the terms in question were ones which had been written and produced in advance by CAP as a suitable set of contract terms for use in many of its future contracts of which the first contract with [the Salvage Association] happened to be one. It is true that Mr. Jones felt free to and did negotiate and agree certain important matters and details relating to the first contract at the meeting of February 27, 1987. However, although he had read and briefly considered CAP’s conditions of business, he did not attempt any negotiation with regard to those conditions, nor did he or Mr. Ellis consider that it was appropriate or necessary to do so. The CAP standard conditions were terms that he and Mr. Ellis willingly accepted as incorporated into the first contract in their predetermined form. In those circumstances, it seems to me that those terms still satisfy the description “written standard terms of business” and, so far as concerns the first contract, the actions of Mr. Jones and Mr. Ellis constituted “dealing” on the part of [the Salvage Association] with CAP on its written standard terms of business within the meaning of section 3 of the [Unfair Contract Terms Act 1977 ].”
“Nevertheless it seems unlikely that a contract term entitling one party to terminate the contract in the event of material breach by the other (eg failure to pay by the due date) would fall within paragraph (b), or, if it did so, would be adjudged not to satisfy the requirement of reasonableness. Nor, it is submitted, would that provision extend to a contract term which entitled one party, not to alter the performance expected of himself, but to alter the performance required of the other party (eg a term by which a seller of goods is entitled to increase the price payable by the buyer to the price ruling at the date of delivery, or a term by which a person advancing a loan is entitled to vary the interest payable by the borrower on the loan).” 77. In my judgment, this passage accurately states the law.”