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Readings in Contract
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Sentence Structure in ContractsLord Justice Moore-Blick: - Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] EWCA Civ 75 .... It is inherent in the nature of a legally binding contract that each party expects to obtain the benefit of the bargain into which he has entered , or, if the contract is not performed, a right to recover compensation in the form of damages for the loss of that benefit. Accordingly, in a case where one partys breach .is such as, .in the words of Diplock L.J. in Hongkong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 Q.B. 26 .to deprive the other of substantially the whole benefit .which it was intended that he should obtain from the contract, .the common law recognises the right of the injured party .to treat the contract as discharged and to recover damages for the loss of the bargain. Such a breach is commonly described as 'going to the root of the contract'. That is all trite law, .but it provides the underpinning, .should it be required, .for Mr. Boyd Q.C.s submission .that parties to a contract of this kind, .or indeed to any contract, .enter into negotiations .in the expectation that if the one of them commits a breach .which goes to 'the root' of the contract .in the sense just described, .the other will be entitled .to recover damages for the loss of his bargain. The parties may, of course, agree to depart from that position, but that is the point from which they start. .. Whether a breach is sufficiently serious to go to the root of the contract depends on the terms of the contract and the nature of the breach, .but it is open to the parties to agree that the breach of a particular term, however slight, is to be treated as having that effect .and shall therefore entitle the other to treat the contract as repudiated. .Different words have been used to express that intention. The use of the word 'condition' will usually .(though not always, see Wickman Machine Tool Sales v Schuler (L.) A.G. [1974] A.C. 235) .be sufficient, .but many other forms of wording can be found. .Sometimes the consequences of a breach are spelled out and sometimes they are not; .in each case it is necessary to construe the contract as a whole to ascertain what the parties intended. |
Words and Phrases in ContractsLord Justice Moore-Blick: - Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] EWCA Civ 75 .... It is 'inherent' in (fundamental to / of the essence of) .the 'nature' of (characteristics) .a 'legally binding' contract (a contract which is legally enforcable) that .each party (either party to the contract) .expects to obtain (anticipates) .the benefit of (the reward from the contract) .the 'bargain' into which he has entered (contract) , or, .if the contract is 'not performed' (one party does not do as they have promised, contracted) .a right to 'recover compensation' (to get damages) .'in the form of' (what type of) .'damages' for the loss of ('compensation') .that 'benefit'. (reward expected from the contract) 'Accordingly' (following on from that) .'in a case where' (when) .one partys breach (One party to the contract breaches that contract) .is such as (breach has the characteristics) ,in the words of Diplock L.J. in Hongkong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 Q.B. 26 .to deprive the other of substantially the whole benefit .which it was intended that he should obtain from the contract, .the common law recognises the right of the 'injured party' (claimant) .to treat the contract as discharged and to recover damages for the loss of the bargain. Such a breach is commonly described as 'going to the root of the contract'. That is all 'trite' law (basic) .but it provides the 'underpinning' (foundation) .should it be required, .for Mr. Boyd Q.C.s 'submission' (argument) .that parties to a contract of this kind, .or indeed to any contract, .enter into negotiations (begin negotiating the contract) .in the expectation that if the one of them commits a breach .which goes to 'the root' of the contract (the foundation/objective) .in the 'sense' just described, (way) .the other will be 'entitled' (justified/have a right) .to 'recover' damages for the loss of his bargain. (get back what was lost) The parties may, of course, agree to 'depart from that position', (decide to contract otherwise) but that is the 'point from which they start'. (the default legal interpretation) .. Whether a breach is sufficiently serious to go to the root of the contract depends on the terms of the contract and the nature of the breach, .but it is 'open to the parties' to agree (possible for the contracting parties) .that the breach of a particular 'term', (any agreed part of the contract) .however slight, (no matter how small) .is to be 'treated as having that effect' (allowed to terminate the contract) .and shall therefore 'entitle' (permit) the other (injured party) to 'treat' (regard/behave as if) the contract as repudiated (broken). .Different words have been used to express that intention. The use of the word 'condition' will usually .(though not always, see Wickman Machine Tool Sales v Schuler (L.) A.G. [1974] A.C. 235) .be 'sufficient', (enough) .but many other forms of wording can be found. .Sometimes the consequences of a breach are 'spelled out' (detailed) and sometimes they are not; .in each case it is necessary to 'construe'(interpret) the contract as a whole to 'ascertain' (discover) what the parties intended. |
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