NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01336.x |
| Date | 01 May 1972 |
| Published date | 01 May 1972 |
NOT‘ES
OF
CASES
THE
PASSING
OF
PROPERTY
AND
THE
MISIDENTIFIED
BUYER
WHERE
S,
a seller of goods, has been deceived into believing that
By
the buyer,
is
X,
a named person of substance,
it
is far from clear
whether a contract exists between
S
and
B.
It
would be possible to
justify
on
logical grounds a rule that, where
B
has been physically
present during the negotiations and actually contracts in person
(though calling himself
X,
the assumed name of someone else), there
is no offer made by
S
that is capable of being accepted. The offer
was directed to an amalgam of
B’s
physical attributes and
X’s
name
and apparent position in the world.
It
could not be accepted by
B
because
it
was directed to
a
person named
X;
but
it
is equally clear
that if
X
had presented himself to collect the goods,
S
would have
denied having contracted vvith him.
Such a solution-whatever its theoretical merits-suffers from
the grave drawback that, in the absence
OP
any contract between
S
and
B, B
is unable to pass title to A, a third party, who would
thus be placed in a parlous position because of a sequence of events
of
which he could have had no know1edge.l More to A’s advantage
would be a rule that, since
S
must have intended to sell to someone,
he could only have intentled to transfer property to the person
who was physically present at the time of the transaction:
S
would
not therefore be able to plead that the contract was void, and A’s
position would depend on whether
S
had taken the necessary steps
to set the contract with
B
aside before A,
or
a predecessor in title,
had acquired the goods.
In practice, the courts have tended to steer
a
course between the
two extremes. In
Phillips
v.
Brooks
Ltd.,S
Horridge
J.
held that
the proper inference to be drawn was that, although
S
believed the
person he was dealing with was
X,
he in fact contracted to sell the
goods to
B,
the person who came into his shop. That
S
intends to
contract with the person in his presence is only a presumption was
made clear in
Ingram
v.
Little
where the Court of Appeal held that
the presumption had been rebutted. The plaintiffs’ offer to sell
their car in return for a cheque had been made to
X
alone, and not
to
B,
the person physically before them. As Pearce
L.J.
pointed
1
If
he did have knowledge, then even
if
the contract was voidable he could
not claim title under it before it was avoided because
s.
23
of
the Sale of
Goods Act requires that he should
be
a
buyer
in
good faith.
2
Though, even
in
such a situ:ttion,
A’s
position
is
not
entirely satisfactory
because of the absurd decisioii in
Car
and
Universal
Finance
Co.
Ltd.
V.
CaZdweZZ
119651
1
Q.B.
525.
3
C1919
2
K.B.
243.
4
:1961]
1
Q.B.
31.
306
MAY
1972
NOTES
OF
CASES
307
out
‘‘
though difficult, it is not impossible to rebut the prima facie
presumption that the offer can be accepted [only] by the person to
whom
it
is
physically addressed.”
While a distinction can thus be drawn between
Phillips
v.
Brooks
Ltd.
and
Ingram
v.
Little,
the recent decision of the Court of
Appeal in
Lewis
v.
Averay
casts doubt upon the circumstances in
which the presumption should be regarded as rebutted. As in
Ingram
v.
Little,
the rogue prepared his ground well: he had
begun by speaking about the film industry. At a later stage he had
informed
S
that he was
“
Richard Green,” the well-known film
actor, and, when it came to persuading
S
to accept a cheque,
B
had
produced a pass to Pinewood Studios which bore the name
R.
A.
Green and
B’s
photograph. Despite the similarity with the facts
of
Ingram
v.
Little,
the court was unanimous in holding that a contract
had been formed between
S
and
B,
so
that a purchaser of the vehicle
from
B
obtained a good title.
It
is possible to treat this decision as being based on a
different view of the facts: the court was not prepared to hold that
the presumption that a person intends
to
contract with the party
with whom he is dealing had been rebutted. Certainly this was the
approach adopted by Phillimore
L.J.7
Megaw
L.J.
took a slightly
different line: at the time when
S
offered to sell the car,
S
had not
regarded the identity of
B
as
a
matter of vital importance,
so,
presumably, he could not be said to have intended to contract
with anyone other than
B.8
However, underlying the views expressed by the members
of
the court was
a
general dissatisfaction with the decision in
Ingram
v.
Little,
which was expressed most openly by the Master of the
Rolls. While paying lip-service to the presumption upon which that
decision was based, Lord Denning made clear that he regarded it
rather as a rule of law
Q:
“
When two parties have come to a contract-or rather what
appears, on the face of
it,
to be a contract the fact that one
party is mistaken as to the identity of the other does not mean
that there is no contract, or that the contract is a nullity and
5
Ibid.
at p.
57.
6
[1971]
3
All
E.R.
907.
7
At p.
912.
8
This seems
a
valid deduction because Megaw
L.J.
referred to Cheshire
and
Fifoot,
The
Law
of
Contract,
7th ed., p.
214,
as
authority for the requirement
that the buyer’s identity should be of vital importance. The second require-
ment stated by Cheshire and Fifoot is that the offeror must be able to show
that he intended to deal with someone other than the acceptor,
and
in
this
context the authors accept
the
presumption that in most cases
an
offeror
intends
to
deal with the person to whom he physically communicates his offer.
In favour of Lord
D7fning’s
approach
is
the
possible argument that these cases are not really mistakes
of
identity
”
but situations where there
has
been
a
misjudgment of the
risk
of not being
paid.
If
the cheque does not
“
bounce,”
S
is not likely to complain.
If
there-
fore the contract is dependent for its validity
on
a
subsequent event (the
honouring or otherwise of the cheque)
how
can
it
be void
ab
initio?
9
[1971]
3
All
E.R.
at p.
911.
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