Collateral Contract in UK Law

Looking at the cases once more, as we have done so often, it seems to me that if a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act upon it, and actually inducing him to act upon it, by entering into the contract, that is prima facie ground for inferring that it was intended as a warranty. Suffice it that it was intended to be acted upon and was in fact acted on.

The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be applied with caution if not the suspicion to which Lord Moulton referred in Heilbut Symons v Buckleton [1913] AC 30, 47. It must also be recognised that such a promise may be binding on successors in title of both parties without the need for notice or registration as a Land Charge or in the Land Registry, cf Brikom Investments v Carr [1979] 1 QB 467.

I have already found that there was no concluded contract prior to 11 April 2013. In my view, the proper contractual analysis of what occurred on 11 April 2015 was that a contract was formed on the terms set out in the 8 April 2013 email for which part of the consideration was the actual execution of the declarations of trust. I agree with Mr Sims that it would not be right for me artificially to devise some collateral contract simply for the purpose of evading the 1989 Act.

In the present case the tortfeasor had contracted to be liable for failure to use reasonable skill and care in the design of the pile driving operation and in the selection of materials and goods (clause A(1) (a) and (b)); but the contract was significantly silent as to liability for the manner in which the work was executed.

In such a case the Court does not require to have recourse to lawyers' devices such as collateral oral warrantly in order to seek to odduse evidence which would not otherwise be admissible. The Court is entitled to look at and should look at all the evidence from start to finish in order to see what the bargain was that was struck between the parties. The defendants gave such a promise which to my mind against this background plainly amounted to an enforceable contractual promise.

In a case where the plaintiff is not seeking to enforce an unlawful contract but founds his case on collateral rights acquired under the contract (such as a right of property) the court is neither bound nor entitled to reject the claim unless the illegality of necessity forms pan of the plaintiff's case.

The word "repudiation" has also led to difficulties because it is an ambiguous word constantly used without precise definition in contract law. I do not attempt an exhaustive list of the senses in which the word has been used, but I may give some instances. Repudiation of a contract is sometimes used as meaning that the defendant denies that there ever was a contract in the sense of an actual consensus ad idem.