Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 91960 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)FN30 1 H. & C. 803.FN31 H[1927] A.C. 487.FN32 (1883) 135 Mass. 283.FN33 9 Ch.D. 223.FN34 H[1927] A.C. 487, 500.FN35 [1952] 2 Q.B. 795; [1952] 2 T.L.R. 340; [1952] 2 All E.R. 456; Affd. [1953]1 Q.B. 401; [1953] 2 W.L.R. 427; [1953] 1 All E.R. 482, C.A.FN36 H[1919] 2 K.B. 243.HPhillips v. Brooks Ltd. [FN37] was referred to with approval in HDennant v.Skinner and Collom, [FN38] but that case is distinguishable, *43 for it wasbased on the passing of the property in goods under the particular law relatingto auction sales.FN37 H[1919] 2 K.B. 243.FN38 H[1948] 2 K.B. 164.As to the argument that there was a concluded contract before the rogueHutchinson offered to pay by cheque, it is submitted that this is not tenable.However, if there was, it was immediately repudiated by the rogue Hutchinson inoffering a cheque, and the repudiation was accepted by the plaintiffs. There wasnot such a contract because of a fundamental mistake arising out of therequirement as to cash on the one side and to offer a cheque on the other, or,alternatively, it was an implied term of the transaction that payment would be bycash, so that the offer of a cheque was a counter-offer which involved therejection of the original offer, as in Hyde v. Wrench. [FN39]FN39 (1840) 3 Beav. 334.The fact that a person is physically present and identifiable by sight andhearing cannot mean by itself that the other party always intends to contractwith the person physically present. Is it possible to say that if thenegotiations had taken place on the telephone, there would have been a materialdifference? Could the mere withdrawal of the physical presence of the rogueHutchinson alter the legal situation? Sir Frederick Pollock rightly said thatseeing a man does not tell you who he is. The primary question in HLake v.Simmons [FN40] was whether there was a contract of bailment with the supposedwife of Van Der Berg; there was no contract of bailment in that case becausethere was no real consent to the bargain; her claim to be someone she was notvitiated the whole transaction. [Reference was made to Sir Carleton Kemp Allen'sarticle, "Mistaken Identity" (1928) 44 L.Q.R. 72, 75.] Lake v. Simmons isdecisive of the present case, because if the contract of bailment there was void,the apparent contract of sale in the present case must be void too. The primaryquestion before the court in that case and in the present case was identical. So,too, in HJohn Rigby (Haulage) Ltd. v. Reliance Marine Insurance Co. Ltd. [FN41]Copr. © West 2004 No Claim to Orig. Govt. Works