CONTRACTUAL ACTIONS FOR DAMAGES AGAINST UNINCORPORATED BODIES
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb01308.x |
| Date | 01 November 1971 |
| Published date | 01 November 1971 |
| Author | J. F. Keeler |
CONTRACTUAL ACTIONS
FOR
DAMAGES
AGAINST UNINCORPORATED BODIElS
IT
can scarcely
be
an uncommon occurrence for a tradesman
or
other person
to
contract to supply goods or services to a club
or
other unincorporated body and, when he does
so,
to expect that he
will be able, in the fist place, to look
to
the funds of ;the association
for payment. Yet, according to the standard view,’ should the
contract be broken and he compelled to seek redress in the courts,
there are many obstacles to his reaching the funds. First, ,the funds
belong to all the members in equal shares: hence
to
reach them he
has
to
show that all members of the association are liable to him,
and this he must do according
to
the rules of agency.
If
the
members are made liable as principals their liability will extend
beyond the resources of the funds and any judgment will be
enforceable against them personally
;
in
order
to
protect them against
this sthe courts have ruled that the usual authority of a committee
of management does not extend to pledging the credit of individual
members but is normally limited to expenditure that can be met
out of the funds,2 and insist that
a
plaintiff proves that every
member authorised t,he contract in respect of which he is bringing
his action. Still, provided that his claim does not exceed the
amount available in the association funds and Ithat the contract was
one of a sort contemplated by the rules, he should be able to obtain
his judgment and with it an order for payment out of the
fund^.^
Yet, even in this case, his difficulties are far from over. He may
not know who all the members of the association are,
or
may be
unable to find some; in any event, if the membership is at all large,
it
will normally be impracticable for him to bring his action against
every member, and he will require a representation order
to
enable
his action to proceed. Even assuming that
a
representation order
is obtainable in an ordinary action for damages,* he has to show
1
The leading works are Lloyd
:
Law
of
Unincorporated Associations
(Sweet
&
Maxwell, 1938) and Actions Instituted by
and
against Unincorporated
Bodies
”
(1949) 12 M.L.R.
409;
Werthcimer:
Law
of
Clubs
(5th
cd.,
ed.
Maxwell Turner, Sweet
&
Maxwell, 1935); Josling and Alexander:
Law
of
Clubs
(2nd
ed.,
Oyez Publications, 1970); Daly’s
Club Law
(6th ed., ed.
Martin, Butterworth, 1970). See
t~o
Ford
:
Untncorporated Non-Profit
Asso-
ciations-Their Property
and
Their Liability,
(Oxford,
1959); Smith
:
Law
of
Associations
(Oxford, 1914)
;
Motthews
:
Proeednres
on
Borrowing and
Obtaining Crcdit by Unincorporated Associations
”
(1967) U.Qld.L.J. 392;
Powell:
Law
of
Agency
(2nd ed., Pitman, 1961); Bowstead:
Agency
(13th
ed. by
Reynolds
and Davenport, Sweet
&
Maxwell, 1968).
2
Flemyng v..Hcotor
(1836)
2
M.
&
W.
172;
150 E.R. 716. Lloyd:
Law
of
Unincorporated Associations,
pp.
136137.
3
Ideal Films
v.
Richards
[1927]
1
K.B. 374 (C.A.).
4
This has been denied on
il
number
of
occasions: see
Markt
d
Co.
v.
Knight
Steamship
Co.
[1910]
2
K.B.
1021,
(C.A.),
especially
per
Fletcher Moulton
L.J.;
Walker
v.
Su7
[1914]
0,
K.B.
930
(C.A.)
per
Kennd L.J.;
Meroantile Marine Seruice Association
v.
Toms
[1916] 2 K.B. 243
(C.A.).
615
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