Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 51960 WL 18924 (CA), [1960] 3 All E.R. 332, [1960] 3 W.L.R. 504, (1960) 104 S.J. 704(Cite as: [1961] 1 Q.B. 31)FN3 (1871) L.R. 6 Q.B. 597.These two false premises in Professor Goodhart's article lead to the test whichhe propounds, and which has been incorporated by the judge in his judgment - howought the promisee to have interpreted the promise. Hardman v. Booth [FN4] wasrelied on in support of that test, but that case depended on the law of agency;all it decided was that where a person represents himself to be an agent, and hehas no authority to contract, there is no contract. The remedy of the aggrievedparty is to sue the agent for breach of warranty of authority.FN4 (1863) 1 H. & C. 803; 158 E.R. 1107.The Pothier test has always been accepted: see per Fry J. in Smith v.Wheatcroft, [FN5]per A. L. Smith L.J. in HGordon v. Street, [FN6] per Horridge J.in HPhillips v. Brooks Ltd., [FN7]per Viscount Haldane in HLake v. Simmons,[FN8]per McCardie J. in HSaid v. Butt, [FN9]per Lawrence J. in HDyster v. Randall& Sons, [FN10]per Tucker J. in *38 HSowler v. Potter [FN11] and per Hallett J. inHDennant v. Skinner and Collom. [FN12]FN5 (1878) 9 Ch.D. 223, 230.FN6 H[1899] 2 Q.B. 641, 647; 15 T.L.R. 445, C.A.FN7 H[1919] 2 K.B. 243, 248.FN8 H[1927] A.C. 487, 501; 43 T.L.R. 417, H.L.FN9 H[1920] 3 K.B. 497, 502; 36 T.L.R. 762.FN10 H[1926] Ch. 932, 939.FN11 H[1940] 1 K.B. 271, 275; 56 T.L.R. 142; [1939] 4 All E.R. 478.FN12 H[1948] 2 K.B. 164, 166; [1948] 2 All E.R. 29 .Here it was the rogue Hutchinson who made the offer and the plaintiffs whoaccepted it. The judge treated the plaintiffs as the offerors, but strictly itwas the rogue's counter-offer which was accepted by the plaintiffs. In many casesit is almost impossible to know who is making the offer, for example, the ticketcases. This shows that the Goodhart test is not a satisfactory one; it can onlyassist where it is abundantly clear who makes the offer and to whom, as inBoulton v. Jones. [FN13] The Goodhart test is irreconcilable with King's NortonMetal Co. Ltd. v. Edridge, Merrett & Co. Ltd. [FN14]; on the Goodhart test theonly person capable of accepting the offer was Hallam & Co., so that, if thatfirm did not exist, there was a fortiori no contract; yet a contract was held toexist, the false name assumed by Wallis amounting to no more than a false label.FN13 (1857) 2 H. & N. 564.FN14 (1897) 14 T.L.R. 98, C.A.Copr. © West 2004 No Claim to Orig. Govt. Works