Under the English sale of goods principles, a condition is a term whose breach entitles the injured party to repudiate the contract,[1] but a breach of warranty shall give rise only to damages. A Comparison in Historical Perspective’ (1994) 57 (2) The Modern Law Review 195. She had on delivery five engineers, three fitters and seven greasers. In some classes of contracts such as sale of goods, marine insurance, contracts of affreightment evidenced by bills of lading and those between parties to tills of exchange, Parliament has defined by statute some of the events not provided for expressly in individual contracts of that class; but where an event occurs the occurrence of which neither the parties nor Parliament have expressly stated will discharge one of the parties from further performance of his undertakings it is for the court to determine whether the event has this effect or not. It is, with all deference to Mr. Ashton Roskill's skilful argument, by no means surprising that among the many hundreds of previous cases about the shipowner's undertaking to deliver a seaworthy ship there is none where it was found profitable to discuss in the judgments the question whether that undertaking is a "condition" or a "warranty"; for the true answer, as I have already indicated, is that it is neither, but one of that large class of contractual undertakings one breach of which may have the same effect as that ascribed to a breach of "condition" under the Sale of Goods Act and a different breach of which may have only the same effect as that ascribed to a breach of "warranty" under that Act. In the nomenclature of the eighteenth and early nineteenth centuries undertakings of the latter class were called "conditions precedent" and a plaintiff under the rules of pleading had to aver specially in his declaration his performance or readiness and willingness to perform all those contractual undertakings on his part that constituted conditions precedent to the defendant's undertaking for non-performance of which the action was brought. Author. I think that Mr. Justice Devlin (as he then was) came to clearly the right conclusion after an exhaustive review of the authorities in Universal Cargo Carriers Corporation v. Citati (1957 2 Queen's Bench, page 401). Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7; Telford Homes (Creekside) Ltd v Ampurius Nu Homes Holdings Ltd [2013] EWCA Civ 577; Valilas v Januzaj [2014] EWCA Civ 436; Post navigation. Royal … Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (BAILII: [1961] EWCA Civ 7 ) [1962] 2 QB 26, [1962] 1 All ER 474; Howard Marine & Dredging v Ogden (BAILII: [1977] EWCA Civ 3 ) [1978] QB 574; Hughes v Metropolitan Railway Co (BAILII: [1877] UKHL 1 ) (1876-77) L.R. The same principle was applied in respect of seaworthiness in Havelock v. Geddes (1809) 10 East, page 555, where Lord Ellenborough pointed out that if the obligation of seaworthiness were a condition precedent the neglect of putting in a single nail after the ship ought to have been made tight, staunch, etc., would be a breach of the condition and a defence to the whole of the plaintiff's demand. No doubt there are many simple contractual undertakings, sometimes express but more often because of their very simplicity ("It goes without saying") to be implied, of which it can be predicated that every breach of such an undertaking must give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract. In my view, in his judgment - on which I would not seek to improve - the learned judge took into account and gave due weight to all the relevant considerations and arrived at the right answer for the right reasons. If yea, the innocent party may treat the contract as at an end. ____________________, HTML VERSION OF JUDGMENT If what is done or not done in breach of the contractual obligation does not make the performance a totally different performance of the contract from that intended by the parties, it is not so fundamental as to undermine the whole contract. Apart altogether from authority, it would seem to be wrong to introduce the idea that the innocent party can treat the contract as at an end for delays which, however, fall short of a frustration of the contract. 2 App Cas 743 . No Acts. Chief Baron Pollock, whose succinct judgment provides a complete answer to the appellants' case, cites Lord Ellenborough in Davidson v. Gwynne –, This decision was approved in Stanton v. Richardson (9 Common Pleas, page 390), where the shipowner had undertaken to carry a cargo of wet sugar and the ship was not fit to carry it and, as the jury had found, could not be made fit in such time as not to frustrate the object of the voyage. The charterers' position was alleviated somewhat by the vessel becoming off hire under clause 11A from time to time and the duration of the charter-party could have been extended by the charterers under clause 32 by adding the off-hire time to the period of the charter. If a party by his breach induces delay he cannot claim frustration which would have been self-induced. In Ritchie v. Atkinson (1808) 10 East, page 295, it failed. [New search] [14] (2) The question whether an event which is the result of the other party's breach of contract has this consequence cannot be answered by treating all contractual undertakings as falling into one of two separate categories: "conditions" the breach of which gives rise to an event which relieves the party not in default of further performance of his obligations, and "warranties" the breach of which does not give rise to such an event. Ampurius Nu Homes Holdings Ltd v Telford Homes (Creekside) Ltd [2013] EWCA Civ 577; Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7; Sabic UK Petrochemicals Ltd & ors v Punj Lloyd Ltd & anor [2013] EWHC 2916 (TCC) Post navigation. For breaches of stipulation which fall short of that, the innocent party can only sue for damages. Author. It was early recognised that contractual undertakings were of two different kinds; those collateral to the main purpose of the parties as expressed in the contract and those that were mutually dependent so that the non-performance of an undertaking of this class was an event that excused the other party from the performance of his corresponding undertakings. So basic is this obligation in a charter-party that unless there is an express clause of exclusion, it will he implied where not expressed. Rondel v Worsley (BAILII: [1967] UKHL 5 ) [1967] 3 All ER 993, [1969] 1 AC 191, [1967] 3 WLR 1666 . Previous Post Previous Part 36: You’re free to go. As my "brethren have already pointed out, the shipowner's undertaking to tender a seaworthy ship has, as a result of numerous decisions as to what can amount to "unseaworthiness", become one of the most complex of contractual undertakings. She was not fit for ordinary cargo service when delivered because the engine-room staff was incompetent and inadequate and this became apparent as the voyage proceeded. The Hong Kong Fir decision was met with some alarm in the shipping world, where certainty is crucial. Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961 ([1962] 2 QB 26, , [1961] EWCA Civ 7, [1962] 1 All ER 474) The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. a "condition". The vessel was to be delivered not earlier than 1st February, 1957, and not later than 31st March, 1957, apparently. References: [1962] 2 QB 26, [1961] EWCA Civ 7, [1962] 1 All ER 474 Links: Bailii Coram: Sellers, Upjohn, Diplock LJJ Ratio: The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The appellants' argument on the second submission in my judgment equally fails and is to be rejected on many of the authorities already cited. There are, however, many contractual undertakings of a. more complex character which cannot be categorised as being "conditions" or "warranties" if the late nineteenth century meaning adopted in the Sale of Goods Act, 1893, and used by Lord Justice Bowen in Bensen v Taylor Sons & Co[15] be given to those terms. 295, it failed frustration is quite independent of rights arising out of a breach of contract Zealand! 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