Lloyd's Maritime and Commercial Law Quarterly
“THE HIGHER ALTITUDES OF CONTRACT LAW”
J. W. Carter *
1. Introduction
The quotation in the title of this paper is taken from the judgment of Scrutton, L.J., in Continental Contractors Ltd. v. Medway Oil & Storage Co. Ltd.1 in referring to the need to discuss the infamous Braithwaite v. Foreign Hardwood Co.2 Few would disagree with this description of the law. Indeed, the mere mention of Braithwaite is enough to strike fear into the hearts of even the most competent contract lawyer. In Esmail v. J. Rosenthal & Sons Ltd.,3 Davies, L.J., referred to the “somewhat marshy ground of the investigation of the rights and wrongs” of the case. The “rights and wrongs” have certainly been vigorously discussed over the years with, inevitably, conflicting views being expressed. In Cooper Ewing & Co. Ltd. v. Hamel Horley Ltd.,4 Sankey, J., said that the case was “very peculiar”. In the Supreme Court of Victoria in Y. P. Barley Producers Ltd. v. E. C. Robertson Pty. Ltd.,5 McArthur, J., described it as “very unsatisfactory”. And, in The Al Hofuf,6 Mocatta, J., in something of an understatement, said that the case was “not easy to understand”. Commentators have taken a very critical view of the case and, with a rare degree of unanimity, have almost universally described it as wrongly decided.7
The case also has an interesting sidelight. In the Court of Appeal it was argued by J. A. Hamilton, K.C. (as Lord Sumner then was), on behalf of the unsuccessful appellants, and by Scrutton, K.C., on behalf of the successful respondents. The forensic battle was continued in their judicial capacities with thinly veiled acrimony. The low water mark was reached in Continental Contractors v. Medway,8 when Scrutton, L.J., responded to an adverse comment by Lord Sumner in British and Beningtons Ltd. v. N.W. Cachar Tea Ltd.9 In criticizing Braithwaite, Lord Sumner had suggested that Scrutton, L.J., might have a better recollection of some expla-
* Senior Lecturer in Law, University of Sydney; Commissioner (Part time), Law Reform Commission of New South Wales. The views expressed in this article are not necessarily those of the Commission.
2. [1905] 2 K.B. 543.
5. [1927] V.L.R. 194, 209.
6. Scandinavian Trading Co. A/B v. Zodiac Petroleum S.A. (The Al Hofuf) [1981] 1 Lloyd’s Rep. 81, 90.
7. See, e.g., Lloyd, “Ready and willing to perform: the problem of prospective in ability in the law of contract” (1974) 37 M.L.R. 121; Dawson, “Waiver of conditions precedent on a repudiation” (1980) 96 L.Q.R. 239. Cf. Benjamin’s Sale of Goods (3rd edn., 1987), paras. 667–674, 1745–1748.
8. Supra, fn. 1, at p. 132.
9. [1923] A.C. 48, 70.
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