The Embiricos Principle and the Law of Anticipatory Breach
| Published date | 01 July 1984 |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01659.x |
| Author | J. W. Carter |
| Date | 01 July 1984 |
THE EMBIRICOS PRINCIPLE AND THE LAW
OF
ANTICIPATORY BREACH
1.
INTRODUCTION
(a)
The
Principle
NOTWITHSTANDING
Lord Wilberforce’s recent statement that the law
of
anticipatory breach is one of the more ‘‘perspicuous’’1 areas of the
law of contract, at least one aspect
of
the law
of
anticipatory breach
remains in an unsettled state. This aspect concerns a principle (“the
Embiricos
principle”) stated by Scrutton
J.
in the following terms:
“Commercial men must not be asked
to
wait till the end of a
long delay to find out from what in fact happens whether they
are bound by a contract or not; they must be entitled to act on
reasonable commercial probabilities at the time when they are
called upon to make up their minds.”*
Thus, the
Embiricos
principle concerns the effect
of
prospective
delay
on
contractual obligations, and the substance of the principle
is
that where “reasonable commercial probabilities” indicate that a
long delay will occur, a party to the contract is not bound to wait for
that delay actually to occur, but can immediately consider himself as
discharged from his obligation to perform.
A
party who successfully
invokes the principle will be protected irrespective of whether
in fact
a sufficiently long delay would have occ~rred.~
The context
of
Scrutton
J.’s
statement was discharge under the
doctrine of frustration. Charterers had cancelled a contract at a time
when an excepted peril, restraints of princes, was operative and they
were held to be justified in doing
so
because the restraint was likely
to prevent the shipowner from carrying out the charter before the
expiry of a commercially unreasonable period
of
time. There is no
doubt as to the validity of the
Embiricos
principle in the context
of
frustration proper, Scrutton
J.
’s
statement
of
principle having been
approved and adopted on a number of
occasion^.^
The purpose
of
this article is to show that the
Embiricos
principle may also be
applied to cases of anticipatory breach.
I
Federal Commerce and Navigation
Co.
Lid.
v.
Molena Alpha Inc.
[I9791 A.C. 757,
778.
Cf. Forslind
v.
Bechely-Crundall
1922
S.C.
(H.L.) 173, 179,
per
Viscount Haldane.
Embiricos
v.
Sydney Reid
&
Co.
I19141
3
K.B.
45,
54.
See R.
G.
McElroy and
G.
L. Williams,
Impossibility of Performance
(1941),
pp.173-174.
See,
for
example,
Warts, Watts
&
Co.
Ltd.
v.
Mitsui
&
Co.
Lid.
[1917] A.C. 227, 246,
per
Lord Sumner; and
National Carriers Ltd.
v.
Panulpina (Northern) Ltd.
(19811 A.C.
675,
687,
per
Lord Hailsham L.C.: and at 706-707,
per
Lord Simon.
Cf.
the formulations
in
Horlock
v.
Beal
[I9161
1
A.C. 486, 502,
per
Lord Atkinson;
Bank Line Ltd.
v.
Arthur
Cape1
&
Co.
[I9191 A.C. 435,454,
per
Lord Sumner; Lord McNair and A.
D.
Watts,
The
Legal Effects of War
(4th ed., 1966). p.192. The importance of the principle was noted
by
Lord Roskill in
Pioneer ShivDinP Ltd.
v.
B.T.P. Tioxide Lld.
1‘19821 A.C. 724. 752. See
also
Kodros Shipping Corpdiati&
v.
Empresa Cubana
de
Fletes‘(ThdEvia No.
2)
119823
1
Lloyd’s Rep. 334 (affirmed [1983]
1
A.C. 736).
422
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