Cantiare San Rocco v Clyde Shipbuilding and Engineering Company
| Jurisdiction | England & Wales |
| Judge | The Earl of Birkenhead,Viscount Finlay,Earl of Birkenhead,Lord Atkinson,Lord Dunedin,Lord Shaw of Dunfermline |
| Judgment Date | 25 July 1923 |
| Judgment citation (vLex) | [1923] UKHL J0725-1 |
| Docket Number | Case No. 223 |
| Court | House of Lords |
[1923] UKHL J0725-1
House of Lords
Earl of Birkenhead.
Viscount Finlay.
Lord Dunedin.
Lord Atkinson.
Lord Shaw.
After hearing Counsel, as well on Thursday the 10th, as Friday the 11th, days of May last, upon the Petition and Appeal of the Cantiere San Rocco, S.A. (Shipbuilding Company), at Trieste, Italy, and E. Radonicich of 8, Gordon Street, Glasgow, their Mandatory, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 20th of July 1922, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of the Clyde Shipbuilding and Engineering Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 20th day of July 1922, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Hunter), of the 7th day of July 1921, thereby Recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs of the Action in the Court of Session and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within One Calendar Month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The Appellants are appealing against an Interlocutor of the First Division of the Court of Session in Scotland dated 20th July 1922 reversing the interlocutor pronounced by Lord Hunter, the Judge who tried the action brought by the Appellants as pursuers against the Respondents as defenders.
The action was brought for a decree that a contract between the parties dated 4th May 1914 had been abrogated by the outbreak of war and that the Appellants were entitled to repayment of a sum of 2,310 l. paid by them to the Respondents under the terms of that contract. On 7th July 1921, Lord Hunter found in favour of the Appellants, but on Appeal the Lords of the First Division recalled his interlocutor and assoilzied the Respondents from the conclusions of the action. The Appellants now bring the matter before this House on Appeal from the last mentioned decision. The facts are shortly as follows:—
On 4th May 1914, the Appellant Company, then an Austrian company carryng on a shipbuilding business at Trieste in the Empire of Austria, entered into a written contract whereby the Respondents (a British Company carrying on business at Port Glasgow) agreed to supply and deliver f.o.b. Port Glasgow and the Appellant Company agreed to purchase one set of triple expansion surface condensing screw engines. The contract made provision for the dimensions and other details, and for the date of completion. Clause 7 declared that the whole of the work, which from time to time might be in hand, should become the property of the Appellant Company subject to any lien there might be for unpaid money. Clause 9 is in these words:—
"In consideration of the said contractors" ( i.e., the Respondents) "supplying the engines and their appurtenances entirely in accordance with the terms of this agreement and the annexed specification, the purchasers" ( i.e. the Appellant Company) "shall pay the sum of £stg. 11,550 (say, eleven thousand five hundred and fifty pounds sterling) which shall be paid in manner following" and the clause proceeds to require payment by stated instalments, the first being the sum of 2,310 l. now in question which was made payable on the signing of the contract and was in fact paid on 20th May 1914.
Immediately after the signing of the contract, the parties commenced the preliminary work of designing the engines and preparing plans, &c. It would seem that the Respondents had obtained or placed orders for materials for the set of engines, which, however, was never made, as on 12th August 1914 the Appellant Company became alien enemies on the outbreak of war and the contract became thereupon impossible of fulfilment.
It is not necessary to consider the effect of the Treaty of St. Germain-en-Laye or of the Treaties of Peace (Austria and Bulgaria) Act 1920 and the Orders in Council made under that Act, for the reason that the Appellant Company became an Italian Company, and its rights are not affected by the Treaty.
In these circumstances Your Lordships are called upon to determine the rights of the parties according to the law of Scotland.
Authorities have been cited in support of the proposition that according to the law of England the sum of 2,310 l. so paid is not recoverable; and it has been argued that the law of England is the same as the law of Scotland in that respect. I do not propose to refer to those authorities. The question is as to the law of Scotland, and I desire to say nothing which may in any way fetter opinion if those authorities hereafter come to be reviewed by this House, for none of them are binding upon Your Lordships.
In my opinion the Appellants are entitled to succeed. The payment was made in consideration of the supply of the set of engines contracted for. These engines were never made, and consequently never supplied, and the contract has been put an end to without the fault of either party. The result is that the Appellant Company has got nothing in return for the payment of this money. The consideration was entire, for the instalments were all to be merely payments on account of the supply of the completed engines, and were not allocated to any particular stage, or the completion of any particular part, of the work. It was admitted that the whole sum of 11,550 l., if it had been paid, would have stood on the same footing, and consequently if the Respondents' contention were correct, they would be entitled to retain the price of machinery which they had not supplied and never would supply.
In order to formulate the rule applicable to this case it is necessary to consider first the Roman law as a source of Scottish law, and secondly the Scottish authorities, which show how far the Roman law applicable to this topic has been received and applied in the law of Scotland.
First, as to the Roman law. This is treated in the Digest and other authoritative texts in connection with the procedure known as Condictio. This process was available to recover money or things which had been parted with by the owner at such a time as he became entitled to reclaim them. The Condictio was only a single form of action, but it was grouped or classified in various ways, according to the kind of property or according to the causa which gave occasion for recourse to the Condictio; but it is unnecessary to go into the origin and development of this remedy. As expounded in Justinian's Digest the law was as complete and logical as possible, having regard to the jurisprudence and customs of the times and the fact that that law was the result of a long and gradual development. Justinian's legislation was partly formative and partly expressive of that part of the Roman law which in this connection was received into the Scottish system.
The underlying principle of the Condictio was that a person had received from another some property and that by reason of circumstances existing at the time, or arising afterwards, it was or became contrary to honesty and fair dealing for the recipient to retain it. The particular case which is in point is the Condictio causa data causa non secuta. This forms the subject matter of the Digest, Book XII., Title IV. In the Code the corresponding title (Book IV., Title VI.) bears the rubric De condictione ob causam datorum. The expression " Condictio causa data causa non secuta" is apparently an invention of Justinian's jurists, for it is not to be found elsewhere, and an exact translation is not easy. The difficulties to which the phrase gives rise led the late Mr. Roby to substitute in his "Roman Private Law" (vol. ii., p. 77) the expression " Condictio ob rem dati re non secuta." It is, however, sufficient for my present purposes to translate the expression by the words "Action to recover something given for a consideration which has failed."
In the text of the Title, a number of instances is cited where the donor was entitled to this remedy if he changed his mind before it was too late. In such a case, the Condictio was available and accordingly the matter is logically included, and the texts upon it have given rise to very difficult problems. Such instances arise in connection with donations; for a case such as the present they are not relevant and I accordingly disregard them.
Apart from the last-mentioned instances where the donor was allowed a locus pœnitentiœ, the Condictio causa data was...
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