Fundamental Breach–‐Positively Last Appearance
| Published date | 01 November 1983 |
| Author | John Adams |
| Date | 01 November 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02551.x |
Nov.
19831
NOTES
OF
CASES
77
1
FUNDAMENTAL
BREACH-POSITIVELY
LAST
APPEARANCE
IN
George Mitchell Ltd.
v.
Finney
Lock
Seeds
Ltd.,'
the House of Lords,
in endorsing Lord Denning's judgment
in
the Court of Appeal,z rang
down the curtain on fundamental breach for the last time,3 and offered
some guidance on how a court should approach the requirement
of
reasonableness in the provisions of the Unfair Contract Terms Act
1977.
And
so
another great British institution bites the dust! The litigation
which provided the occasion for this timely event involved cabbages,
or rather the non-appearance of cabbages. Accordingly, Lord Denning
chose to preface his closing lines with the well-known verse from
Through the Looking Glass.6 This was entirely appropriate, not
merely because
of
the cabbages, but because in the exemption clause
world, as in the looking-glass world, things tended
to
be the other way
round from what you would have expected them to be."
The contract occasioning the litigation provided for the supply of
30
lb Dutch winter cabbage at
a
cost
of
f.201
a60.
Unfortunately, the
seeds supplied were not a variety of Dutch winter cabbage at all, but a
variety of autumn cabbage of very inferior quality. They were quite
unsuitable for the respondent's purposes and the crop failed and had to
be ploughed in. As a result, the respondent lost production from
63
acres for one year; the damages were assessed by the judge at first
instance at €61,513.78 (which included estimated
loss
of profits,
and
the costs
of
fruitless cultivation), plus €30,754 interest. The invoice
used by the appellants contained
a
clause purporting to
limit
their
liability,
in
the event
of
the seed supplied proving defective, to replace-
ment or a refund of the purchase price. It also excluded all liability
for any loss
or
damage arising from the use
of
any seeds or plants
supplied, any consequential loss
or
damage arising out of such use,
or
any other
loss
or damage. The existence of these provisions was
admittedly known by the respondents as they had dealt with the
appellants for many years.
At first instance counsel for the appellants conceded that had
beetroot
or
carrot seed been delivered, the limitation clause
would
have
been inoperative. Parker
5.
accordingly found as
the
first ground
of
his
decision that the clause
in
question did not apply because the seed
supplied was
of
a totally different kind from that ordered. Although
different counsel withdrew this concession in the Court of Appeal, this
reasoning was also accepted by Oliver
L.J.'
Oliver
L.J.
also concurred
[I9831
2
All
E.R.
737.
(19831
1
All
E.R.
108,
11
I.
It
is
to
be hoped.
At
least the Unfair Contract Terms Act
1977,
s.
9 will
apply
to
contracts made after February
1,
1977.
*
[I9833
1
All
E.R.
108,
111.
"
'The time has
come
',
the
Walrus
said,
'
to
talk of many things:
Of shoes-and ships-and sealing wax-
of
cabbages-and kings
. . .
'
"
"
Many people preferred
it
that
way.
'
[I9831
I
All
E.R.
108,
118
ef
seq.
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