Exceptions Clauses And The Liability For Demurrage
| Date | 01 July 1960 |
| Author | E. R. Hardy‐Ivamy |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00621.x |
| Published date | 01 July 1960 |
JULY
1960
NOTES
OF
CASES
487
made clear the distinction between
“
condition
”
and
“
promise,”
and that the clause contained a condition. There was some delay
in getting the approval of the court, and ten days after the date
fixed for completion the purchasers sought to rescind the contract
for non-fulfilment of the clause relating to approval by the court.
Ten months later the vendor asked the court to confirm the con-
tract, and the court refused to do
so.
Maugham
J.
said
“
a clause
fixing a date for completion is equivalent to a clause stating that
completion shall be on that date or within a reasonable time there-
after. But there is no ground for a similar construction in the case
of a condition upon which the validity of the contract as one
for
sale depends.
. . .
In general, and in the present case, there is no
promise
or
undertaking by the vendor that the condition will be
fulfilled
”
(at p.
282).
It
is to be hoped that the significance of these cases as requiring
a fresh approach to the problems
of
‘(
conditions
)’
in contracts will
be appreciated.
It
is, however, not unlikely that more importance
will be attached to Lord Jenkins’ formulation of the principles
re-
lating to the time, when
“
conditions
))
in contracts of sale have to
be fulfilled. The following is a restatement of Lord Jenkins’ formu-
lation. (i) The time fixed in
a
“
condition
”
for its fulfilment will
not be varied by any court. (ii)
If
no time is fixed then (a)
if
there
is a date fixed for completion of the contract
of
sale in which a
condition is contained, then the condition must be fulfilled by that
date, (b)
if
no date is fixed for completion, then a reasonable time
will be allowed for fulfilment
of
the condition. Presumably the
last rule applies to all
“
conditions,” whether contained in contracts
of sale of land
or
not. Whenever legal relations are connected with
lapse of time and no time is specified by the parties creating those
relations, then the courts deem that the parties intended to specify
a
reasonable time. Perhaps rule (i) will also be extended to
all
“
conditions
”
:
the courts have been very reluctant to exercise
any dispensing power from the exact provisions of the terms of a
contract.
J.
L.
MONTROSE.
EXCEPTIONS
CLAUSES
AND
THE
LIABILITY
FOR
DEMURRAGE
IN
considering the effect of
an
exceptions clause in a charterparty
on
the question whether demurrage is payable the standard textbooks
on the carriage of goods by sea agree as to the general rule
of
inter-
pretation to be ad0pted.l
“
When once a
vessel is
on
demurrage,
no
exceptions will operate to prevent
demurrage continuing to be payable unless the exceptions clause is
clearly worded
so
as
to have that effect.”
To
the decided cases
Scrutton,
Charterparties and
Bills
of
Lading
(16th
ed.,
1955), 353;
Carver,
The Carriage
of
Goods
by
Sea
(10th
ed.,
1957),
p.
830;
Maclackan,
Merchant
Shipping
(7th
ed.,
19321,
p.
445.
Thus Scrutton states:
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