Distribution in UK Law

I do not decide that the Defendant's position on either of these points is necessarily right as a matter of law, even if the necessary facts can be established. But it does seem to me that the points are sufficiently arguable for it to be wrong to strike these paragraphs out of the Defence.

However, while such a term will relatively readily be implied into an estate agency contract, it was made clear by Viscount Simon in Luxor (Eastbourne) v Cooper [1941] AC 108 at 119 that, where there is an argument whether or not such a term is to be implied, the issue should be resolved by reference to the normal rules relating to implication of terms.

First, the term identified in Article 57 of Bowstead is “very readily” implied, especially in a residential consumer context, unless the provisions of the particular contract or the facts of the particular case negative it (see per Woolf LJ in Brian Cooper at 19H-J and per Longmore LJ in County Homesearch at para 11). Sixthly, where the term is implied, the burden is on the agent seeking the commission to establish that he was the effective cause (see per Staughton LJ in Chasen Ryder at 28G).

It seems to me that there are two possible readings of the expression “a purchaser” in the phrase “a purchaser introduced by us”. The first, which is favoured by Foxtons and was adopted by the Judge, is that the expression means “a person who at some time in the future becomes a purchaser”. The alternative reading, advanced on behalf of Mrs Bicknell, is that the expression means “a person who becomes a purchaser as a result of our introduction”.

Furthermore, especially in a context concerned with a liability which may arise under a contract or in a situation "equivalent to contract", it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff: see Caparo Industries Plc v. Dickman [1990] 2 A.C. 605, 637, per Lord Oliver of Aylmerton.

I would respectfully suggest that last sentence could as well have ended: "no less, but certainly no more." There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly.

When interpreting an agreement, the court must have regard to the words used, to the provisions of the agreement as whole, to the surrounding circumstances in so far as they were known to both parties, and to commercial common sense. When deciding on the categorisation of a relationship governed by a written agreement, the label or labels which the parties have used to describe their relationship cannot be conclusive, and may often be of little weight.