“We will, when required, enter into a formal Contract Agreement with you in the form included with the tender documentation. Until a formal Contract Agreement is entered into, this tender and your acceptance of it will constitute a binding contract between us.”
“We refer to our pre-contract meeting dated18th December 2009 and subsequent discussions and confirm that it is our intention to enter into a contract with you to undertake the above works on the basis of Option A of the Engineering and Construction Contract 3rd Edition June 2005 along with the Modifications issued with the tender documents. The contract will be a lump sum based on drawings and specifications issued with tender documents the value of which will be£4200000.00 as detailed in the priced Activity Schedule submitted with your tender. The date for commencement of works will be5th February 2010 . The date for completion will be17th November 2010 .”
“We hereby give notice pursuant to clause 91.2 of the contract that you have defaulted by substantially failing to comply with your obligations to correct the said Defects and to provide the Works regularly and diligently in that regard using your best endeavours to avoid and reduce delays.”
“22.3 The Works shall be completed as set out in the Works Information and Contract Data (to include compliance with the Purchase Agreement and Deed of Grant dated12 May 2009 insofar as it relates to the Works). For the avoidance of doubt the Contractor agrees that the Works will start on22 March 2010 and will be completed by21 February 2011 .” … “22.6 Notwithstanding the terms of the Contract and these additional Conditions of Contract the Contractor agrees and accepts that the Works which are subject to planning conditions (full particulars of which the Contractor acknowledges has been provided to it) and that Completion of the Works cannot take place until planning conditions 3, 11 and 15 have been discharged.”
“The general rule is that an acceptance has no legal effect until it has been communicated to the offeror. Accordingly there is no contract where a person writes an acceptance on a piece of paper which he simply keeps;…”
“They made submissions which contradicted the express written contract and were therefore contrary to principle and long established English mercantile law. They submitted that Cundy v Lindsay 3 App Cas 459 was wrongly decided and should be overruled, substituting for it a general rule which, in disregard of the document or documents which constitute the agreement (if any), makes everything depend upon a factual inquiry into extraneous facts not known to both of the parties thus depriving documentary contracts of their certainty.”
“It seems to me — reading the correspondence, as I have — that it must have been plain to the parties and to everybody that the words "Sargrove Electronic Controls Limited" were used just as a name to describe the concern called Sargrove Automation, which was a division of Solent Steel Fabrications Ltd. In this Court we are very used to dealing with misnomers. We do not allow people to take advantage of a misnomer when everyone knows what was intended. I will only refer to one authority, Whittam v. WJ Daniel & Co. Ltd.,[1962] 1 QB 271 at p. 277, where Lord Justice Donovan cited the words of Lord Justice Devlin: I think that the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong", then there is a case of mere misnomer. I would have thought that that would apply here. When Solent Steel Fabrications Ltd. received the policy and saw the endorsement with the words "Sargrove Electronics Limited" on it, they would have said to themselves, "Sargrove Electronics Limited are out of business. They are dormant altogether. They cannot mean that company. They must mean Sargrove Automation". That is why they took no point on it at the time. It seems to me that the meaning of the document was clear. The words "Sargrove Electronics Limited" were just a misnomer: and the correct description was well-known to all to be "Sargrove Automation", a division of Solent Steel Fabrications, which was the insured party.”
“It seems to me that the doctrine of misnomer is of uncertain width. It is clearly a doctrine of construction, but it is not plain to what extent it permits reference to extrinsic evidence. Davies v Elsby Brothers Limited would suggest that where there are two possible entities, the rule is a strict one: unless one can say from the four corners of the document that the parties must have intended to refer to one rather than the other entity, then the doctrine does not apply. If, however, there is only one entity, then it is possible to use extrinsic evidence to identify a misdescribed party. It is arguable that Nittan v Solent Steel falls into the latter category. Moreover, the cases, as does common sense, suggest that a case of mere misnomer is not easily (query if ever?) concluded to be such without the mistake being explicable.”
“Above all, there remained the problem how, as a matter of construction, ZAO could mean OAO. If it was a matter of mere misnomer, that hurdle was leaped. But if it was not, or may not have been, then the use of evidence to turn ZAO into OAO looks, at any rate as a matter of realistic argument, suspiciously like using evidence to alter or substitute the identity of a party, rather than to construe its meaning. And that would seem to be the role of rectification.”
“The question which the court posed for itself in that case was: what meaning would the guarantee convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time it was given? I think that this was the right question to ask in our case.”
“19. Against this background, I think it is indisputable that the commercial purpose of the guarantee was to ensure that the Claimant’s invoices would be paid for products it supplied to IFS, if IFS failed to do so. Its genesis was the Claimant’s concern that it would not be paid and ADM’s concern that IFS should continue to receive a supply of poultry products. It cannot have been the parties’ intention that the guarantee was only to apply to amounts due from some imprecisely identified Gastronome entity which was not to contract with or invoice IFS. That would have been a commercial nonsense. 20. In these circumstances, I think the guarantee must be construed as a reference to the company within the group which was actually to contract with and invoice IFS. By September 2003, this was undoubtedly the Claimant. The word “Gastronome” did not identify any particular company or legal entity. The address on the guarantee (to which it was not actually sent) was simply a mistake. Looked at in its context, there was only one entity to which the guarantee was addressed, so if it is to be considered as a case of misnomer the extrinsic evidence could be used to identify the Claimant as the misdescribed party. None of this involves re-writing the contract; it is simply the result of the enquiry as to what the parties must have intended.”
“11. Mr Geary submits that there are two possible contenders here and that extrinsic evidence is not admissible to explain any mistake. I disagree. There is in truth only one candidate, Almatrans S.A., because Almatrans-Interferries Lines does not exist. Furthermore the text of the LOU refers to obligations “in respect of the above claims” which can only be a reference to those being secured by the arrest, which are those set out in the statement of claim document and which surrounding papers show belong to Almatrans S.A.. As soon as one looks at the substance of the “above claims” referred to the nature of the error becomes clear.”
“22. In East v Pantiles (Plant Hire) Ltd (1981) 263 EG 61 Brightman LJ stated the conditions for what he called ‘correction of mistakes by construction’: “Two conditions must be satisfied: first, there must be a clear mistake on the face of the instrument; secondly, it must be clear what correction ought to be made in order to cure the mistake. If those conditions are satisfied, then the correction is made as a matter of construction.” “Two conditions must be satisfied: first, there must be a clear mistake on the face of the instrument; secondly, it must be clear what correction ought to be made in order to cure the mistake. If those conditions are satisfied, then the correction is made as a matter of construction.” 23. Subject to two qualifications, both of which are explained by Carnwath LJ in his admirable judgment in KPMG LLP v Network Rail Infrastructure Ltd [2007] Bus LR 1336, I would accept this statement, which is in my opinion no more than an expression of the common sense view that we do not readily accept that people have made mistakes in formal documents. The first qualification is that “correction of mistakes by construction” is not a separate branch of the law, a summary version of an action for rectification. As Carnwath LJ said, at p 1351, para 50: “Both in the judgment, and in the arguments before us, there was a tendency to deal separately with correction of mistakes and construing the paragraph ‘as it stands’, as though they were distinct exercises. In my view, they are simply aspects of the single task of interpreting the agreement in its context, in order to get as close as possible to the meaning which the parties intended.” 24. The second qualification concerns the words “on the face of the instrument”
“If one of the deciding factors be whether the defendants, on looking at the writ, must have known that the writ, though the name was inaccurate, was addressed to them, then in my view it was not possible for them to say that the writ must have been intended for the company. The date of the accident is not specified in the writ. It was possible that the accident referred to in the writ was one which had occurred while the firm was still carrying on the business. Therefore, there being the two definite, separate entities, the firm and the company, it is not possible to say that the inclusion of the firm on the writ was a mere misnomer for the inclusion of the limited company.”
“In English law as a general principle the question is not what the writer of the document intended or meant but what a reasonable man reading the document would understand it to mean; and that, I think, is the test which ought to be applied as a general rule in cases of misnomer — which may embrace a number of other situations apart from misnomer on a writ, for example, mistake as to identity in the making of a contract. I think that the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong,” then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries,” then it seems to me that one is getting beyond the realm of misnomer.”
“The present case is plainly distinguishable from the decision of this court in Davies v. Elsby Brothers Ltd., because in the present case there is no other entity to which the description in the writ could be taken to refer.”
“The Contractor is listed as Cuddy Group. It should be Cuddy Civil Engineering Limited.”
“The party seeking rectification must show that: (1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (2) there was an outward expression of accord; (3) the intention continued at the time of the execution of the instrument sought to be rectified; (4) by mistake, the instrument did not reflect that common intention.”
“Now that it has been established that rectification is also available when there was no binding antecedent agreement but the parties had a common continuing intention in respect of a particular matter in the instrument to be rectified, it would be anomalous if the “common continuing intention” were to be an objective fact if it amounted to an enforceable contract but a subjective belief if it did not. On the contrary, the authorities suggest that in both cases the question is what an objective observer would have thought the intentions of the parties to be.”
“197. Lord Hoffmann’s analysis, in summary terms, proceeds as follows. When it comes to deciding whether there is a contractual relationship between two parties, and, if there is, what the terms of the contract are, such questions are normally to be assessed by what a hypothetical reasonable objective observer, aware of all the relevant facts known to both parties, and what has been communicated between the parties, would have concluded to be their intention. Exceptions to that general principle exist, such as (i) the exclusion of the antecedent negotiation when it comes to the interpretation of a written contract, and (ii) the subjective intention or understanding of the parties, which is inadmissible in relation to the interpretation of written contracts, although it is admissible when it comes to oral, or partly oral, contracts. Accordingly, where rectification of the terms of a contract is sought on the basis of alleged common mistake, while there will be some exceptions, the general rule is that the court should judge the question by reference to what a hypothetical reasonable objective observer, aware of all the relevant facts known to both parties, would conclude. 198. However, the court will inevitably not adopt precisely the same approach to a rectification claim as it adopts to an interpretation issue. Three differences are relevant for present purposes. First, in a rectification claim the antecedent negotiations are admissible: indeed they are normally of central relevance. Secondly, even in relation to written contracts, some subjective evidence of intention or understanding is not merely admissible, but is normally required in a rectification claim: the party seeking rectification must show that he indeed made the relevant mistake when he entered into the contract. Thirdly, as Etherton LJ points out in para 83 above, rectification is an equitable remedy and therefore is subject to somewhat different rules from interpretation.”
“87. The third scenario is where there was objectively a prior accord, but one of the parties then subjectively changed their mind, but objectively did not bring that change of mind to the attention of the other party. It is right that, if the documentation gives effect to the objective prior accord, the formal documentation should not be rectified to reflect the changed but uncommunicated subjective intention; and if the documentation as executed reflects the changed but uncommunicated subjective intention, it should be rectified to give effect to the objective prior accord. To do otherwise would be to force on one of the parties a contract which they never intended to make on the basis of an uncommunicated intention and belief. 88. The fourth scenario is where there was objectively a prior accord (whether or not a subjective common intention), and one of the parties then objectively changed their mind, that is to say objectively made apparent to the other party that they intended to enter into the transaction on different terms. Leaving aside rectification for unilateral mistake (the requirements for which are quite different), it is right that, if the documentation as executed gives effect to the objectively indicated change of mind, a claim for rectification to give effect to the earlier prior accord should be refused. Once again, to do otherwise would force on the defendant a contract which they never intended to make on the basis of the claimant’s uncommunicated subjective intention to enter into a contract on the basis of the original accord notwithstanding the defendant’s objectively communicated change of mind.”
“I am conscious that there is authority that the test for unilateral mistake rectification is one of honesty, and that nothing less than knowledge in the sense of one of Peter Gibson J’s first three categories in the Baden case[1993] 1 WLR 509 will be sufficient. The judge found that Mr Roebuck did not have such knowledge. But I am not sure that the legal principle is or should be so rigid. Professor Andrew Burrows in his chapter entitled “Construction and Rectification” in Burrows & Peel eds Contract Terms (2007), ch 5 has tentatively suggested that the modern law of construction and rectification may be moving to what he terms “_romise objectivity” by which he means an approach which would include as part of the context not only the common intention of the parties but also the meaning of the contract which the promisor knows or ought to know that the _romise is adopting. This is close to the thinking of Professor McLauchlan. In George Wimpey UK Ltd v VI Construction Ltd[2005] BLR 135 , paras 56-57 Sedley LJ suggested that a test of “honourable and reasonable conduct” would be preferable. In the present case the trial judge said that it would have been honourable for Mr Roebuck to check out the position with Mr Bruno, but that the court was not concerned with honour. Words like “honourable and reasonable” are imprecise, but I am inclined to agree with Sedley LJ’s observation, at para 65, that “sharp practice has no defined boundary”
“56. Turning to the requirements for unilateral mistake, the judge said (at para 112) that these were reiterated by the Court of Appeal in George Wimpey UK Ltd v VI Construction Ltd[2005] BLR 135 , para 38, approving the following statement of the principle by Buckley LJ in Thomas Bates & Son Ltd v Wyndham’s (Lingerie) Ltd[1981] 1 WLR 505 , 515–516: “For this doctrine—that is to say the doctrine of A Roberts & Co Ltd v Leicestershire County Council[1961] Ch 555 , 570—to apply I think it must be shown: first, that one party A erroneously believed that the document sought to be rectified contained a particular term or provision, or possibly did not contain a particular term or provision which, mistakenly, it did contain; secondly, that the other party B was aware of the omission or the inclusion and that it was due to a mistake on the part of A; thirdly, that B has omitted to draw the mistake to the notice of A. And I think there must be a fourth element involved, namely, that the mistake must be one calculated to benefit B. If these requirements are satisfied, the court may regard it as inequitable to allow B to resist rectification to give effect to A’s intention on the ground that the mistake was not, at the time of execution of the document, a mutual mistake.” ” “For this doctrine—that is to say the doctrine of A Roberts & Co Ltd v Leicestershire County Council[1961] Ch 555 , 570—to apply I think it must be shown: first, that one party A erroneously believed that the document sought to be rectified contained a particular term or provision, or possibly did not contain a particular term or provision which, mistakenly, it did contain; secondly, that the other party B was aware of the omission or the inclusion and that it was due to a mistake on the part of A; thirdly, that B has omitted to draw the mistake to the notice of A. And I think there must be a fourth element involved, namely, that the mistake must be one calculated to benefit B. If these requirements are satisfied, the court may regard it as inequitable to allow B to resist rectification to give effect to A’s intention on the ground that the mistake was not, at the time of execution of the document, a mutual mistake.” ”
“95. It is now well established by authority, binding at the level of the Court of Appeal, that the defendant’s knowledge of the claimant’s mistake sufficient to satisfy the conditions for rectification for unilateral mistake is such knowledge as falls within any one of the first three categories described by Peter Gibson J in the Baden case[1993] 1 WLR 509 , namely: (1) actual knowledge; (2) wilfully shutting one’s eyes to the obvious; and (3) wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make: Commission for the New Towns v Cooper (Great Britain) Ltd[1995] Ch 259 , 280, 292 and George Wimpey UK Ltd v VI Construction Ltd[2005] BLR 135 .”
“97. …Those categories, like Baden category (1), reflect dishonesty, the critical broad distinction being between honesty and dishonesty: the Commission for the New Towns case,[1995] Ch 259 , 280 e –281 b , the George Wimpey case[2005] BLR 135 , para 45.”
“while a party cannot in terms found a cause of action on an estoppel, he may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on that estoppel, he would necessarily have failed.”
“When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding on him, the contract is not rescinded as from the beginning. Both parties are discharged from further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected.”
“The Contractor Provides the Works in accordance with the Works Information and in accordance with good up to date practice and in accordance with all British Standards and relevant Codes of Practice and shall ensure that the Works are carried out and completed in a good and workmanlike manner in accordance with the standard of good engineering practice using suitable and sound materials of good quality such that the Works (to include the internal access road) are to an adoptable standard acceptable to the local authority.”
“To Provide the Works means to do the work necessary to complete the works in accordance with this contract and all incidental work, services and actions which this contract requires.”
“After a termination certificate has been issued, the Contractor does no further work necessary to Provide the Works.”
“The modifications set out in the Additional Conditions of Contract or initialled by the Employer and Contractor are incorporated into this Contract and the provisions of the Contract shall have effect as so modified.”
“(4) An undertaking is also a parent undertaking in relation to another undertaking, a subsidiary undertaking, if (a) it has the power to exercise, or actually exercises, dominant influence or control over it, or (b) it and the subsidiary undertaking are managed on a unified basis.”
“When technical words or phrases are made use of, the strong presumption is that the party intended to use them according to their correct technical meaning, but this is not conclusive evidence that this was his real meaning. If the technical meaning is found, in the particular case, to be an erroneous guide to the real one, leading to a meaning contrary to what the party intended to convey by it, it ceases to answer its purpose.”
“Since the Court approaches any problem of construction on the assumption that the parties to the contract are reasonable people, and reasonable people do not require each other to do the impossible, it ought to follow that there is a presumption of construction that a contract does not require the impossible to be done.”
“If they do so agree [to require one party to do the impossible] and if as is inevitable, he fails to perform, he will be liable in damages. That said, any court will hesitate for a long time before holding that, as a matter of construction, the parties have contracted for the impossible, particularly in a commercial contract. Parties to such contracts can be expected to contemplate performance, not breach.”
“The actual exercise of dominant influence is the exercise of an influence that achieves the result that the operating and financial policies of the undertaking influenced are set in accordance with the wishes of the holder of the influence and for the holder's benefit whether or not those wishes are explicit. The actual exercise of dominant influence is identified by its effect in practice rather than by the way in which it is exercised.” “Managed on a unified basis: Two or more undertakings are managed on a unified basis if the whole of the operations of the undertakings are integrated and they are managed as a single unit. Unified management does not arise solely because one undertaking manages another.”
“As Cuddy do not have P.I. cover Sainsbury's require Waterman to commit (by letter) that they will cover the whole of the design, including those of design subcontractors under their P.I. policy. Waterman have already committed to provide such a letter subject to the above conditions being fulfilled. The alternative is that Sainsbury’s will insist on Cuddy providing appropriate P.I. insurance.”
“Generally speaking, the rescission of the contract puts an end to the primary obligations of the party not in default to perform any of his contractual promises which he has not already performed by the time of the rescission. It deprives him of any right as against the other party to continue to perform them. It does not give rise to any secondary obligation in substitution for a primary obligation which has come to an end. The primary obligations of the party in default to perform any of the promises made by him and remaining unperformed likewise come to an end as does his right to continue to perform them. But for his primary obligations there is substituted by operation of law a secondary obligation to pay to the other party a sum of money to compensate him for the loss he has sustained as a result of the failure to perform the primary obligations.”
“Every failure to perform a primary obligation is a breach of contract The secondary obligation on the part of the contract breaker to which it gives rise by implication of the common law is to pay monetary compensation to the other party for the loss sustained by him in consequence of the breach; but, with two exceptions, the primary obligations of both parties so far as they have not yet been fully performed remain unchanged.”
“Where such an elections made (a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay monetary compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.”