A negative review of our hotel? That will be $500 please!

A remarkable story appears here in today’s Daily Telegraph newspaper about a US hotel which charges guests a $500 “fine” for every negative review posted online by them, or anyone in their party, about the hotel. The hotel’s website warns prospective guests as follows:

“If you have booked the Inn for a wedding or other type of event anywhere in the region and given us a deposit of any kind for guests to stay at USGH there will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any Internet site by anyone in your party and/or attending your wedding or event.”

This isn’t a classic penalty clause, as it’s not a sum stipulated to be paid upon breach of contract, but it’s certainly something that would put most contractors “in terrorem”, to use the Dunlop Tyres case language, this blogger should have thought.

Whatever the legality of this purported fine in US contract law, assuming that the posted warning became a term of the contract it would be the sort of clause which would, if this were a Scottish or English case, be very likely to be struck down by the Unfair Terms in Consumer Contracts Regulations 1999 – Regulations which strike non-negotiated, unfair terms out of contracts. A term is “regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.” A clause designed to prevent the customer from publicly recounting a poor level of service would, in this blogger’s view, qualify as one causing a significant imbalance in the parties’ relationship.

Safe to say, this blogger won’t be staying at the hotel in question any time soon on a visit to the US!

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Personal injury and the peril of seagulls

It cannot be very often that a judge’s discussion of a pertinent issue in litigation is summed up as being “whether the pursuer has established on the balance of probabilities that the seagull which attacked her” came from a building owned by the defenders in the case. Visions arise of seagull identity parades. Strange though an issue such as this might be, it was expressed to be the principal question at issue in the recent Outer House decision of Kelly v Riverside Inverclyde (Property Holdings) Ltd. The pursuer had been exiting her workplace in Greenock when she was ‘divebombed’ by a seagull which had been nesting, she alleged, in the building (which was owned by the defenders). In an attempt to avoid being struck by the seagull, the pursuer had fallen and injured herself. She sued the defenders for damages, alleging that they were in breach of a duty care owed under section 2 of the Occupiers’ Liability (Scotland) Act 1960 (and in breach of concurrent common law duties of reasonable care), and in breach of regulations 5 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992.

The pursuer’s case was dismissed for the simple factual reason that the court considered there to be no evidence that the gull responsible had indeed been nesting in the defender’s building, rather than in another building nearby on which there were other nesting gulls. So, the pursuer’s case failed primarily for evidential problems. However, the court’s consideration of whether, apart from this evidential problem, the pursuer would have had a good case is worthy of a few comments.

In relation to the case based on breach of the occupier’s duty of care under the 1960 Act, the judge held that the case would have failed on the basis that there was no breach of the duty of care owed under section 2 of the Act. Why not? Because the injuries suffered by the pursuer were not reasonably foreseeable, there being no evidence that the defenders were aware of any previous incidents involving swooping gulls and thus of any danger of this nature which might be posed by the gulls. One might question, however, whether the absence of any prior reports of swooping gulls would really have been enough to exculpate the defenders from possible breach of their duty. If, for instance, there had been evidence that gulls were in fact nesting in the building (which there was not), and the defenders were aware of this, then arguably the defenders should have taken steps to have removed the gull’s nests or to have taken some other protective measures, whether or not any incidents of swooping had been drawn to their attention. My point is that the problem of swooping gulls during nesting season is well known, so arguably the presence of such nesting gulls on specific premises would of itself be sufficient to make injuries sustained as a result of swooping gulls reasonably foreseeable.

In relation to the case based on the Workplace (Health, Safety and Welfare) Regulations 1992, the judge thought that neither regulation was applicable to the case at hand. Regulation 5 was thought inapplicable because it relates to maintaining (including cleaning as appropriate) the workplace in an efficient state, in efficient working order and in good repair. None of what the pursuer said ought to have been done in this case – the use of spiking, meshing and netting to prevent the gulls nesting – was thought to be relevant. One thought occurs, however, and that is that that cleaning of the building’s guttering to remove any nests could surely be classed as maintenance (indeed cleaning is specifically mentioned in the Regulation), so perhaps an opportunity was missed to phrase the employer’s failure to act in a fashion that might have brought it within the terms of Regulation 5. As for Regulation 17, that was thought inappropriate because it requires that “every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner”, and ‘organisation’ of the workplace was not relevant to the control of wild animals such as gulls (which seems a reasonable conclusion).

The decision seems right on the facts – given the failure to identify the source of the nesting gull – but it is suggested that occupiers of buildings nonetheless need to be vigilant in ensuring that they undertake reasonable steps to combat the problems caused by swooping gulls during nesting season. Regular inspection of buildings seems prudent, and the use of netting or spiking to avoid nesting would indeed seem sensible precautions in areas where gulls are known to be problematic. And, as argued above, this blogger takes the view that the very presence of nesting gulls on a building would of itself create a reasonable foreseeability of injury to persons entering or leaving the building, and thus impose on occupiers a duty to take proactive steps to combat the likelihood of such injuries occurring. Of course, the problem for any potential litigant remains: how do you identify the gull that attacked you, and where it was nesting? Rounding up the usual suspects for a gull identity parade is likely to be beyond the ability of even the most diligent firm of solicitors.

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The importance of fundamental structural language in the law of obligations

This blogger is currently researching and writing a new book (to be published by Cambridge University Press under the title “Obligations: Law and Language”) on fundamental structural language in the law of obligations. Many fields of law, including obligations, rely on such language to provide basic building blocks for the law and when analysing the nature of obligations and the consequences flowing from them (including remedies). In the law of obligations, such language includes terms such as ‘obligations’ itself, ‘liability’, ‘conditional’, ‘contingent’, ‘unilateral’, ‘bilateral’, ‘mutual, ‘independent’, ‘gratuitous’, ‘onerous’, ‘injury’, and ‘harm’, amongst others. Although such language is frequently used by the courts (and legislators), it is often unclear which of a number of senses is intended in a specific instance of usage of a term. The purpose of my intended book will be to explore the meanings of such terms, and to look at the way in which a number of jurisdictions (including the Common Law states of the USA, Canada, Australia, England & Wales, and the mixed legal systems of Scotland, and South Africa) and model law instruments (including the DCFR, UCC, and a number of Restatements) employ such language.

The importance of precision in the usage of such words is frequently demonstrated in case law in which the terms are employed. Only yesterday, the Court of Session handed down a new judgment (in the case of Edgar v Edgar) in which one basis for the court’s finding in favour of the pursuer rested upon whether a disposition granted by her in favour of the defender was or was not “gratuitous” in nature (if it was, then her unilateral error in granting it could found reduction of the deed). While the court found that the disposition was indeed gratuitous in nature, the matter appears to have been of some doubt (indeed, the pursuer’s counsel seems to have changed his position during the course of pleadings, from asserting that the deed was granted onerously to asserting that it was a gratuitous grant – see the discussion at paras 36-37), and the judge himself does no more than narrate his conclusion that the circumstances supported the conclusion of a gratuitous grant; there is no explanation as to the judicial understanding of what “gratuitous” means, or as to why the conclusion was reached. In this specific case, the failure to explore this issue was not as crucial as it might have been, as the judge held that, even if the grant had not been gratuitous, the defender’s bad faith (coupled with the pursuer’s unilateral error) would also have founded a reduction of the disposition, but in other cases the gratuitous nature of a transaction might be thrown more sharply in to focus.

This recent case is merely one example among many of the importance of defining fundamental structural language with care and precision. The book which I am currently writing will demonstrate that too often such language is used in a careless or imprecise way, something which can lead to inconsistent results and hinder the administration of justice.

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New Discussion Paper published on third party rights in contract law

The Scottish Law Commission published yesterday a Discussion Paper on third party rights in contract law (the DP may be downloaded here). This is an important area of contract law, and reform has been long overdue; ever since the English Law relating to third party rights underwent a sea change in the Contracts (Rights of Third Parties Act 1999), the Scots law in this field has looked distinctly outdated and, more importantly, uncertain. The Scottish Law Commission is considering encapsulating the law of third party rights in a modern, comprehensive Act (an alternative would be simply to tidy up uncertain areas of the law). This observer would strongly favour the comprehensive, statutory option, as part of a more general move towards codification of the law of obligations. Such a codification would set out the law in a clear, easily accessible fashion, thereby making the law of obligations easily accessible to the general public and resolving the problems caused by the many muddled and unclear parts of our law.

Comments are invited by the Scottish Law Commission on the DP by 20th June 2014.

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The transmission of liability for exposure to asbestos

The Inner House of the Court of Session has given its judgment in the case of Bavaird v Sir Robert McAlpine and others, and has held that liability for the exposure to asbestos of a council worker, resulting in his subsequent death from mesothelioma, by the now defunct East Kilbride Development Corporation (EKDC) passed to its successor, South Lanarkshire Council (SLC). In so holding they overturned the decision at first instance that liability did not transmit. The result is good news for employees of statutory bodies, like local authorities, who are negligently exposed to asbestos but who do not go on to develop symptoms, as is common, for many years afterwards: the Inner House’s decision means that their right to claim damages will be exercisable against any statutory successor of the body which exposed them to the danger.

I argued elsewhere (see ‘Liabilities and Obligations: Two Different Concepts?’ (2013) Journal of Professional Negligence 186) that the decision at first instance was an unfortunate one. It seemed perverse that someone’s right to claim damages for an asbestos-related injury should be dependent upon whether or not their employer was still in existence (in which case recovery would be undoubted), or whether its rights and liabilities had been taken over by a successor (in which case, according to the 1st instance judgment, there would be no transmission of liability). Holding that liabilities do not transmit to successor authorities thwarts the underlying purpose of the very legislation transferring rights and liabilities in such cases, and is therefore heartening to see a purposive approach to interpreting such legislation being approved of in both of the substantive judgments in the Inner House (those of Lady Paton and Lord Drummond Young).

The outcome at first instance was reached on a judicial assessment of the order transferring rights and obligations from EKDC to SLC as not extending to liabilities which had not matured at the time of the transfer into enforceable obligations to pay compensation to injured parties. This meant that those who had been exposed negligently to asbestos (this constituting the injuria element of a delict) but who did not begin to manifest any ill effects of the exposure (the damnum element of a delict) until after the transfer of liabilities to the successor body were unable to claim. The judge at first instance held that no ‘liability’ (the term used in the relevant legislative provision) to compensate such people had existed when EKDC ceased to exist, nor indeed could there even be said to be a ‘contingent liability’ in existence at the time, as for a liability or an obligation to be ‘contingent’ there had first to be some ‘obligation’ in existence, and a delictual obligation required the presence of both injuria and damnum before it could be said to exist. In the article in the 2013 JPN referred to above, I criticised this approach, both as misunderstanding the point that liabilities can be contingent in a sense other than that described by the judge at first instance, but also because such an interpretative approach thwarted the purpose of the legislative provisions.

On appeal, Lady Paton, in the leading judgment, made two important arguments justifying the decision to overturn the judgment at first instance:

(1) Construing the order as a whole, and adopting a purposive construction, it was clear that the word “liabilities” in article 2 of the transfer order included “contingent liabilities and potential liabilities”, such as liabilities which emerged after the date of transfer (such as liabilities to pay damages which arose only on the manifestation of physical symptoms); and
(2) Quite apart from article 2, there was a further provision of the order (article 3) stating that “anything done” before the date of transfer by EKDC “for the purposes of or in connection with the property, rights and liabilities transferred by article 2” was, after the date of transfer, to be treated as having been done by SLC.This meant that the exposure of the deceased employee to asbestos by EKDC was to be treated as something done by SLC, so that in effect both the injuria and the damnum in the case were to be treated as caused by EKDC.

The purposive approach adopted in this first argument is to be approved of, as is the result, but two aspects of Lady Paton’s approach are worth exploring further:

(a) what is the difference, if any, between ‘contingent liabilities’ and ‘potential liabilities’?; and
(b) was article 3 in fact supportive of the conclusion reached by the court?

These are considered in turn.

(a) what is the difference, if any, between ‘contingent liabilities’ and ‘potential liabilities’

The appearance of the idea of a ‘potential liability’, and the suggestion that is may be something different to a ‘contingent liability’, was a development in the Inner House. At first instance there was reference only to ‘contingent’ liabilities. The change in terminology may reflect usage of the phrase ‘potential liability’ in the recent Supreme Court case of In Re Nortel Group of Companies [2013] UKSC 52 (though this case is not mentioned in the judgments of the Inner House), but if that is so it seems odd to suggest that potential and contingent liability might mean something different, as the judgments in Nortel switch between the language of potential and contingent without seeming to suggest any difference in meaning. So do the two terms differ in meaning? The fact that Lady Paton mentions both might suggest so, and this suggestion is made stronger by a further reference by her (at para 36) to the fact that:

“The pursuers’ argument had changed and developed since the debate in the Outer House. In the Outer House, the pursuers periled their case on contingent liability, whereas in the Inner House they relied primarily upon the concept of potential liability, failing which contingent liability.”

Counsel clearly thought contingent and potential liabilities were different, and the suggestion is that Lady Paton does too. Frustratingly, what the difference might be between the two is not explained. One suspects that, because of the strong judicial view expressed at first instance that, for a contingent liability to exist, there must be a completed obligation (i.e. injuria plus damnum) to begin with, the reclaimer’s counsel in the case were wary of using the idea of contingent liability again on appeal. I think the view taken at first instance was a mistake, as I have argued elsewhere, and there is amply authority, both native and foreign, to suggest that obligations/liabilities may indeed be contingent in the sense of not yet having arisen. However, if the tactic was adopted for the reasons suggested, then it would seem that what perhaps was meant by ‘potential liability’ was something which is not yet a completed obligation, i.e. (in a delictual context) it is just the presence of injuria without damnum, thus a state of affairs which has the ‘potential’ to become a completed obligation but only on the occurrence of damnun. It seems to me however that there is no need to have drawn this distinction between potential and contingent liability; as I have argued before, a proper understanding of ‘contingency’ is that it is a term which can be used to mean EITHER an obligation which has been formed, but under which performance will only become due in the event of some uncertain future event (contracts may be contingent in this sense), OR an obligation which has not yet been formed but which might be, i.e. one whose very existence is contingent upon an uncertain future event (contract and delict can both be contingent in this sense). So, I don’t think there was any real need to employ the term ‘potential liability’ in distinction to ‘contingent liability’, one could simply have said that the mere presence of injuria gave rise to a contingent liability, and such was caught by the relevant article, but in any event this did not prevent the correct result being reached. It would however have been very helpful to have had explained what the judicial understanding of the difference in the two terms was.

(b) was article 3 in fact supportive of the conclusion reached?

As to this second part of Lady Paton’s justification for overturning the decision at first instance, I’m not entirely convinced that this in fact was relevant to the question at hand. Her Ladyship says (at para 30) that article 3 has the effect that the “negligent exposure to asbestos” of the deceased man, which occurred during the existence of EKDC, was “something done … by, or on behalf of, or in relation to, EKDC for the purposes of its property, rights and liabilities”, and hence transferred under article 3. My concern is that this is arguably stretching the semantics of the phrase ‘something done’ beyond the purpose the phrase needs to serve.

How were EKDC, in exposing an employee to asbestos, “doing something” for the purposes of, or in connection with, their property, rights or liabilities? Lady Paton, in describing the effect of article 3, gives the example of “general maintenance work on housing stock, including roof repairs” as being something done for such purposes, and one can see why this example makes sense: repairing the roofs of a council’s housing stock is something done to maintain its property and thus preserve the value of an existing right of ownership in the property. Similarly, an example of something done to preserve a claim in contract might be a notification to a debtor that EKDC considered a contractual debt as still outstanding – such a notification would reset the prescriptive clock, and thus preserve its right to enforce the contractual debt (the same might be said of a right to claim damages in delict from a party which had negligently damaged Council property). Such an act would quite properly be classed as something done “for the purposes of or in connection with” a contractual (delictual) right (claim), given that it preserves the very existence of the claim. Similarly, the act of EKDC in tendering payment under a debt owed by it, or of entering a defence in an action raised against it, would be something done “for the purposes of in connection with” a liability, and would properly fall, under article 3, to be considered as having been done by the successor authority.

But negligently exposing a person to asbestos is not done for “the purposes of” a right or liability, as it is neither done purposely nor, until the exposure occurs, is there any liability; on the contrary, it is something which creates the liability in the first place. Exposure to asbestos could only be done for the “purposes of or in connection with” the liability ensuing if (perversely) it was done with the intention that the Council, in exposing the employee to asbestos to create, would be creating such liability (a very unlikely event).

Now, perhaps it might be countered that my argument adopts too strict an interpretation of the phrase “for the purpose of or in connection with”, but I find the application of this provision in connection with negligent (i.e. non-purposeful) exposure to be stretching the meaning of the phrase too far, especially given the context of the article in which it appears, an article designed (it seems to me) to ensure that actions taken in relation to existing property and ‘obligations’ (in the widest sense) of the dissolved entity are to be deemed to be actions of the successor.

It is worth adding that this critical observation on the article 3 point does not undermine the decision of the Inner House: the conclusion reached is perfectly able to stand by reference simply to the interpretation adopted of the meaning of ‘liabilities’ as used in article 2.

Conclusion
Neither of the above two observations on aspects of the generally commendable judgment of Lady Paton in any way undermines the welcome good sense which the decision of the Inner House brings. Had the decision gone the other way, there would doubtless have been mounting pressure for a legislative change to ensure that the unjust deprivation of delictual entitlement in cases of this sort was rectified. I understand that the Inner House’s decision may be being appealed to the Supreme Court. If so, it is to be hoped that the outcome provided for by the Inner House is preserved.

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New Comparative Obligations Law Project: Misconduct in Tort

Next week sees an event to launch a new comparative project in the field of obligations law, a study on Misconduct in European Tort Law. The project is being sponsored by the European Centre for Tort and Insurance Law (ECTIL), and the event is a conference at Bocconi University in Milan.

Over the next 2 years the project’s contributors will be studying how the legal systems of the EU countries address the issue of ‘misconduct’ in their tort/delict laws. The intended outcome of the project will be the third volume in a series entitled the ‘Digest of European Tort Law’ (the previous volumes were on the topics of (i) Causation and (ii) Damage).

A further report will follow on the proceedings of the Conference, and on what reflections Scottish lawyers might have on the way we address misconduct in our law (largely dealt with by reference to the idea of ‘culpa’, wrongful conduct, and its relationship to the infringement of various interests protected in the law) in the light of European approaches to the subject.

A poster of the Conference speakers may be accessed here: Poster

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Strict liability for injuries on Scotland’s roads?

The Scottish Parliament is to debate on 29th October 2013 a motion concerning strict liability on Scottish roads. The motion reads:

“Strict Liability

That the Parliament believes that the number of fatalities and injuries to pedestrians and cyclists on Scotland’s roads, including in the Lothian region, is unacceptably high; recognises that the Scottish Government has funded a number of national cycle safety initiatives; notes that versions of a strict liability rule exist in the civil law of many European countries; notes that a number of walking and cycling organisations support the introduction of such a law in Scotland; understands that a petition by Cycle Law Scotland on this topic has secured nearly 5,000 signatures; considers that a stricter liability rule could have positive benefits for the safety of more vulnerable road users as part of a package of measures, and would welcome further debate on this proposal.”

The motion has cross-party support.

What is interesting to this observer is that it is not entirely clear to whom the proposed strict liability for injuries might be intended to apply. The website of the campaign backing the change in the law (www.cycling-accident-compensation.co.uk/strict-liability.aspx) talks about introducing strict liability as a means of protecting “cyclists and other vulnerable road users”, but does not clearly explain (so far as I can see) who these ‘other vulnerable road users’ are. Do they include pedestrians? The motion before the Scottish Parliament would suggest so. But would they also include, say, drivers of scooters and motorcycles? Such road users are often struck by drivers of cars, vans and lorries who fail to notice them, so there would seem to be a reasonable case for arguing that they are also ‘vulnerable road users’.

Ultimately, of course, vulnerability on the roads is a relative matter: a cyclist is vulnerable when compared to the driver of a car, but a pedestrian is also vulnerable when compared to a cyclist. It is not clear whether any Bill that might ultimately be proposed would reflect a hierarchical norm, making those higher up the hierarchy stand in a position of strict liability to those beneath them in the hierarchy, but also giving them the right to claim strict liability against those higher up the hierarchy. If strict liability is to be imposed, then such a hierarchical approach would seem fair, and indeed a hint that the organisers of the campaign agree with this is given in the statement on their website that any Bill would “reflect a hierarchy of road users”. That is a sensible concession, as it would seem lop-sided if, say, cyclists were to benefit from strict liability imposed on car drivers but not be subject to it they injured pedestrians.

In drafting any legislation, care would have to be taken to deal not just with strict liability in respect of injuries caused on the roads, but also on the pavements, given the propensity of some cyclists to cycle on the pavement or to switch between road and pavement and back to road at junctions where red lights are against them.

The details of any Bill may become clearer during the coming debate, which this observer will be watching with interest.

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Promises, assurances, and collateral warranties: new judicial observations

The Inner House of the Court of Session has recently delivered (12th September) its decision in the case of Royal Bank of Scotland plc v Carlyle [2013] CSIH 75. In its judgment, the Inner House held that an oral representation by an employee of the pursuers, made during the course of a telephone call with the defender, to the effect that the pursuers had approved funding for a development proposed by the defender did not give rise to any binding voluntary obligation on the pursuers’ part (the precise words used were “It’s all approved. Edinburgh are going for it for both houses” – see para 56 of the judgment). In particular, the employee’s statement did not constitute a ‘collateral warranty’ on the bank’s part. The decision reached by the Court – that the Royal Bank did not undertake any binding obligation by virtue of what its employee said, whether of a freestanding or collateral nature – seems the right one. In reaching its decision, the court made some interesting remarks on the nature of so-called “collateral warranties” in Scots law. It will be suggested below that some of what was said by the Court is too limiting as regards the nature of warranties in Scots law.

Collateral warranties – what are they?
The defender’s case was premised on the argument that, in speaking as she had done on the telephone, the pursuer’s employee had made a “collateral warranty” in respect of the funding assurance. This led the Inner House to ponder at some length what the nature of a “collateral warranty” might be in Scots law (and whether, for instance, it is contractual in nature, or has some other basis in law). The term is encountered less frequently in Scotland than it is in England.

In pondering what, if anything, might be indicated by something being referred to as a ‘collateral warranty’ in Scots law, the Court prefaced its consideration of this by noting that voluntary obligations can, in Scotland, be undertaken in one of two ways: consensually, in a contract, or unilaterally, through a promise (see para 51). Such obligations fall to be distinguished from mere representations not intended to have obligatory force. These points were well made, though it is suggested that this is only part of the background to ‘collateral warranties’. Warranties, in the broad sense in which they are often used in commercial contracts (and there are narrower senses, as discussed below), encompass both undertakings made by a party, but also statements/assurances held out as true but which do not, of themselves, expressly state any undertaking. So, in a construction contract, a collateral warranty document might include assurances made by a heritable proprietor of land, to a contractor, about the nature of the land, e.g. that it is not polluted, that the substructure of the land is clay and not limestone, and so forth. Such statements are frequently referred to as ‘collateral warranties’ though they do not of themselves state any obligation, even if obligations to be implemented if the statements are not true (e.g. the payment of damages) may appear alongside such statements. The answer to this point may be that it is only the statement held out as true coupled with the obligation to be undertaken if the statement is untrue which, together, fall to be considered as the ‘warranty’, but it is not clear that this would be an accurate reflection of the use of the term ‘warranty’ in practice.

Leaving that point to one side, the Court continued by analysing the term ‘collateral warranty’, saying that the legal meaning of both of its component words were ‘well known’ (para 52). A warranty was said by the Inner House to be “a term of a contract” (para 52). This is true as far as it goes: warranties may be contract terms, but a warranty may also be constituted by a unilateral promise, and the Court’s failure to acknowledge this is somewhat surprising at this point, given that the Court’s later consideration of whether the words spoken during the telephone conversation might amount to a promise seems to suggest that the Court did consider that a warranty might be constituted in promissory form. (One of the authorities cited for the nature of a warranty as a contract term is McBryde. Contract, 3rd edition, para 20-93, yet in this paragraph McBryde is merely making the point that what in English law are considered either ‘warranties’ or ‘conditions’ are both in Scots law simply contract terms – but this is a meaning of warranty in English law distinct from the more general usage of warranty to mean an assurance, so this passage of McBryde does not support the idea that warranties must be contract terms.) This being so, doubt must be expressed about the Court’s subsequent statement that a warranty is

“not something which exists as a free standing legal entity outwith a contract. It is not the same as an “assurance”, which may or may not be a term of a contract”

On the contrary, I would suggest that a warranty may indeed be a free-standing legal entity outwith a contract: were that not so, a warranty issued by manufacturer C in respect of its goods could not exist separately of a contract for the sale of the goods by supplier B to customer A without giving such a warranty the forced construction of an offer impliedly accepted by the owner of the goods, yet such warranties do exist apart from the contract of sale under which they are sold and in Scots law it is entirely possible to see such warranties as unilateral promises issued by the manufacturer to the owner of the goods. The fact that some collateral undertakings have been analysed as contractual in nature (as appears to have been so in British Workman’s and General Assurance Co v Wilkinson (1900) 8 SLT 67, a case cited by the Inner House) does not entail that all collateral undertakings must be contractual in nature. The Court’s suggestion that warranties must be contractual looks all the more odd given that, following its discussion of the nature of warranties as contractual, it proceeds to state (para 55) that “the obligation arising may be involve a unilateral obligation created by promise or a unilateral or mutual one created by contract”. It is hard to square this with its earlier assertion that warranties must be contractual in nature.

The Court continues (para 52) by analysing the word ‘collateral’, remarking that “if something is to be regarded as “collateral”, it must be linked to a principal item”, which seems an unobjectionable analysis.

The conclusion drawn by the Court of collateral warranty is thus that

“If something is described as a collateral warranty, it must be taken to relate to a term of an existing contract which is collateral to another, different, contract” (para 52).

If one accepts the assumption that all warranties must be contractual in nature (an assumption I have doubted), then this conclusion follows. Whether or not one accepts the point that warranties must be contractual in nature, it seems correct that, whatever the nature of a warranty, for it to be collateral it must be ancillary to a separate obligation, to which it must relate. There must therefore be a clear linkage between the alleged collateral warranty and another specified obligation. Any such link was missing from the facts of this case, so the conclusion of the Court that “[o]ne thing is clear, this is not a case of “collateral warranty”” seems the correct one to have reached.

If not collateral warranty, perhaps free-standing promise?
Even if the statement was not a ‘collateral’ warranty, might it have been a free-standing promise made by the pursuers? (It should be added at this point, that this was not the basis of the defender’s claim, so no such argument could have assisted the defender, but the idea is worth exploring here) Such a statement might possibly have been a promise, though to be such the words would have had objectively to disclose an identifiable unilateral undertaking to which the promisor was unequivocally binding itself. That was highly unlikely here. Insufficient content about the nature of what was promised can be gleaned from the few words spoken on the telephone. What was the amount to be lent? On what terms? As the Inner House noted, “An agreement or a promise to enter into a contract, where the essentials are not ascertainable, cannot be regarded as legally binding” (para 54). Moreover, a promise is not usually considered to be undertaken simply through the recitation of an internal decision made by a party, as the previous case of Cawdor v Cawdor [2007] CSIH 3 indicates. At best, such statements are likely to be considered as non-binding statements of intention (see both Cawdor v Cawdor as well as the recent Inner House judgment in Regus (Maxim) Ltd v Bank of Scotland plc [2013] CSIH 12). Unsurprisingly, given the words used in the telephone conversation in this case, and the context within which they were spoken, the Court concluded that:

“at most all that the pursuers’ employee was doing was advising the defender of an internal decision of the pursuers, which amounted to approval in principle of the proposal to lend the defender (and his company) funding for the development(s). She was not, in so communicating to the defender, creating a legal obligation on the pursuers to lend to the defender (and his company) several million pounds.” (para 57)

This seems an entirely reasonable interpretation of the nature of the words spoken, and the Court’s conclusion on whether such words were intended to give rise to a unilateral promise (they were not) is to be approved.

Conclusion
The suggestion that the oral statement made by the pursuers’ employee was a collateral warranty seems to have been a rather feeble attempt (albeit approved by the Commercial judge at first instance) to give such statement obligatory form. It is hard to see what convincingly any undertaking could be argued to have been collateral too, given that no express linkage was made when the statement was made nor was an implied linkage to a specific later contract evident from the circumstances (there were subsequent agreements between the parties, but these defined different levels of funding and different purposes for that funding, so could not be the principal undertakings to which the statement might be collateral). It is a pity that the defender did not try to make an argument that the statement made during the telephone conversation was a freestanding promise (this was not the pled basis of the case), as that would have avoided the difficulty of having to tie the obligation to some other undertaking in order to make it ‘collateral’. However, as has been argued above, the words used by the pursuers’ employee do not seem to disclose any promissory intent at all, so that such a promissory argument would also properly have failed.

The decision on the case aside, however, it is a pity that what the Inner House says about the nature of collateral warranties appears to suggest that warranties can only be contractual: there is no obvious reason why a warranty, collateral or not, may not be a promise, and there is good reason to believe that promise may well be the most appropriate way to view some warranties (e.g. manufacturers’ warranties) in Scots law, whatever their characterisation in other systems.

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Donations obtained by misrepresentation

An interesting letter published in a recent edition of the New York Times was brought to my attention:

“I’m on the art-museum board, so that is my preferred artistic donee. An acquaintance repeatedly called me for a donation to the opera. I don’t like opera. I said he should donate to the art museum. He said he’d give to the museum whatever I gave to the opera. We agreed on $10,000 apiece. He called the next four years and offered to make the same deal. I accepted each year. As I was looking through our donor list for unrelated reasons, I discovered he has been giving only $1,000 a year. I sent him an e-mail telling him of my discovery, and he responded, “Nailed me.” As if it were funny. What is my ethical response? Demand my excess back from the opera? Threaten to sue him if he doesn’t pony up to the museum? Gossip? T.S., LOCATION WITHHELD”

The author of the letter asks what the ethical response would be, but the facts make interesting ones when considering any possible legal remedies. What follows are some observations on whether, under Scots law, any remedy would be available to ‘T.S.’ – let’s call T.S. ‘A’ for ease of reference, and his (or her) friend ‘B’, the opera company to which A donated, ‘C’, and the museum to which B donated ‘D’. I am assuming for present purposes that C knew nothing of B’s deception (the letter gives no suggestion of any such knowledge on C’s part); complicity by C in B’s fraud would likely render it liable to repayment, based on the rule applicable in Scots law against profiting from another’s fraud. Any comments on my preliminary thoughts on this problem would be welcome.

Does A have any remedy against B? One could argue that A and B stand in a contractual relationship towards each other: their precise relationship would arguably be constituted by consecutive, discrete contracts in each of the five years in question, each of the parties having annually contracted to make matching donations of a stipulated amount to a stipulated recipient. There is certainly sufficient agreement on the essential terms of a contract. The only objection might be that, while such agreement existed, there was a lack of contractual intent: all that there was, it might be said, was an understanding, binding in honour only, between the two. On the other hand, there is a reasonably substantial pecuniary element to this arrangement, and third parties are intended to benefit under it, so a court might well feel that these arrangements were sufficiently serious to demonstrate contractual intent.

If the relationship is contractual, however, each of the contracts appears to have been formed as a result of B misrepresenting (probably fraudulently) his intentions; furthermore B appears to have breached each contract by failing to make the full payment agreed. A misrepresentation inducing a contract is actionable in delict, and a breach of contract in, of course, contract itself. (If there is no contract between the parties, then A might still seek to make a claim in delict unrelated to any alleged contract which flowed from the misrepresentation: the misrepresentation, made directly by B to A has still caused the losses discussed further below, and although these are pure economic losses the relationship of the parties seem sufficiently proximate to justify a claim in delict.)

A subsidiary contractual question also arises: if the annual undertakings to make the donations are indeed contractual in nature, could one also argue that, under Scots law, the two stipulated recipients (the opera company and the art gallery) are third party beneficiaries deriving a jus quaesitum tertio from such contracts? There is certainly an intention on the part of the contracting parties to benefit the third parties in question, but the stumbling block (post the Carmichael case) would appear to be that there is no delivery of the contract, or any equivalent (e.g. informing the intended recipients about the arrangement), and without this there can be no concluded third party rights. So, D would have no direct claim to enforce B’s undertakings in contract.

In respect of both B’s misrepresentation to A and B’s breach of contract, damages are A’s obvious remedy, in the misrepresentation case damages designed to put A in to the position he would have been in had the misrepresentation not occurred. In assessing A’s counterfactual position, a court would imagine circumstances where B had made an accurate representation, i.e. where he had represented that he would give the amount which he in fact gave, i.e. £1,000 (we shall call it pounds, not dollars), rather than £10,000. Had that been the representation made by B, then A would only have pledged to match such an amount with a £1,000 donation (£9,000 less than what he in fact gave). An award of £9,000 per annum for each of the five years would thus be the measure of A’s losses flowing from the misrepresentation, i.e. £45,000 in total over the five years in question (this would be so whether or not A and B were in a contractual relationship).

In a breach of contract case, damages would be designed to put A in to the same position he would have been in had B performed his obligations: had B in fact paid £10,000 per annum, A would still have done exactly as he did, i.e. he would still have given £10,000 per annum to the opera company. So A is no worse off as a result of B’s breach of contract, and no contractual damages are due to him, something which clearly makes a contractual claim less desirable to A than a delictual one.

Turning the focus away from a possible claim against B, might there alternatively be a way for A to reclaim the sums paid by him directly from C either in unjustified enrichment or in donation? In unjustified enrichment, the factual circumstances seem to match up most closely with the condictio causa data causa non secuta, the claim for something given for a cause (i.e. reason) which does not transpire. A’s argument would be that his transfers of funds to the opera company were made in order to secure a matched donation to the art gallery: this was the causa of A’s donation. Such causa did not follow – causa non secuta – B not making the matching donations, so A’s transfers to the opera company failed to secure the purpose for which they were made. However, A seems to have made these donations without disclosing his reasons for so doing to the recipient, C. That is a somewhat unusual case, as the question of whether or not a causa has been disclosed to the recipient of a transfer usually only arises in relation to two party cases, whereas in this case A has agreed with B to make a conditional transfer to C. Nonetheless, just as in two party cases any causa must, to be relevant, be express or able to be reasonably implied from the circumstances of the transfer, so I would argue it must be in the case of a transfer to a third party: if such a transfer was made by A to C without disclosing the causa for which it was made, A should not be able to make a claim based upon the condictio causa data against C (the same reasoning would apply in any claim based upon the law of donation: an undisclosed condition cannot found a claim that the donation was conditional and that the condition was unfulfilled). Even without this fundamental objection to an unjustified enrichment claim by A, C would be able to plead the defence to an enrichment claim of ‘change of position’: the money donated will likely have been spent by the opera company.

So, at first glance, the problem disclosed in the above letter would, under Scots law, seem to afford A with a damages claim in delict against B, but no claim against C.

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A football agent’s contractual remuneration

Football agents expect to get paid for their services in finding new contracts of employment for their principals, their footballers. So what is to happen if an agent with an exclusive right to conclude transfer deals on behalf of a player is sidelined by the player, who breaks his agreement with the agent by using another agent, thereby causing the agent to lose out on an expected transfer fee? One would expect, in the usual case, that the agent would receive damages calculated according to an agreed rate of remuneration for negotiating such transfers. But matters are complicated if the contract between agent and player does not provide for any particular rate of remuneration for the agent: how does one calculate a ‘lost fee’ in such a case?

That question is one of the problems affecting current litigation between a football agent, Mark Donaghy, and a player, David Goodwillie. An initial judgment as to the relevancy of this action, handed down by Lord Stewart in the Outer House on 10th July 2013, may be accessed here). The very terse agreement entered into between agent and player in this case (signed by the footballer at a Burger King Fast Food restaurant, we are told), stated simply that:

“I David Goodwillie born 28-03-89 hereby authorise Licensed Players’ Agent Mark Donaghy to act exclusively on my behalf as my Lawful Agent and Representative to negotiate in my name all conditions with my current club Dundee United FC and future transfer to any other club. This agreement will commence on 29th of March 2011 and end on 01st September 2011.”

The absence of any express right to remuneration on the part of the agent in this agreement is noticeable. Contracts can, of course, be gratuitous under Scots law, but football agents do not intend to provide their services for nothing so this is clearly not a case of a contract intended by the parties to be gratuitous. In onerous contracts for the provision of services, one would expect to see the basis of remuneration stated by the parties. Where it is not, some agents benefit from regulatory protection (see The Commercial Agents (Council Directive) Regulations 1993), but those are agents who negotiate sales of goods contracts not contracts for the provision of footballers’ services. In the absence of a statutory mechanism for importing a price into a contract, one has to turn to the common law. The obvious common law analysis might be to refer to a common rate applicable within the specific market, but Lord Stewart was not favourable to such an approach.

His Lordship’s view of the matter of the remuneration due to the agent is given at paragraph 18 of his judgment. He begins by remarking:

“Unquestionably in my opinion the written “Agreement” is an exclusive “mandate” for the stated agency activities.”

This is, with respect, perhaps not the most helpful way in which to begin discussion of the issue, as ‘mandate’ is a form of gratuitous agency, so clearly not relevant to a case where work undertaken by the agent is intended to be entirely gratuitous. Passing over this infelicity, Lord Stewart continues:

“The first issue here is about the consequence – as a matter of legal principle and apart from the regulatory framework – of the non-inclusion of a term as to remuneration where the agent’s commission is to be paid, not by the principal, but by a third party. Counsel did not address me on this point. In the absence of any submissions to the contrary, given the averment that the defender was content with the arrangement and given also that the practice is said to be commonplace in the industry, I believe I must hold that the contract is, on the pleadings, prima facie enforceable between the parties as it stands without a remuneration clause. There is no suggestion by the defender that such a payment would have been an undisclosed “secret commission” for which the agent would be bound to account. The impression that I have formed is that some services were meant to be provided gratuitously on the understanding that the pursuer would in due course make a profit from the expected transfer. I asked senior counsel for the defender what would have been the measure of remuneration, if the pursuer had actually negotiated the transfer acting under the mandate. Senior counsel suggested quantum lucratus or quantum meruit. I do not think this is correct: the remuneration would have been, on the pleadings, whatever commission the pursuer could have negotiated with Blackburn Rovers [Great Western Insurance Co v Cunliffe (1873-74) LR 9 Ch App 525].”

The final sentence here is worth dwelling over. When asked for an answer, counsel for the agent ventured to suggest that the level of remuneration would be quantum lucratus (unlikely, as this is the measure used in unjustified enrichment and not contract cases) or else quanutm meruit. The latter was a more sensible suggestion (especially given that it matched the pursuer’s pleadings, which sought a “reasonable remuneration” for the provision of the agent’s services), and indeed has been applied by the courts in previous cases where contracts for the provision of services have been agreed without specification of the rate of remuneration. One relatively recent example is that of Avintair Ltd v Ryder Airline Services 1994 SC 270, which concerned an agent’s brokering of an airline services contract. The Inner House in that case favoured an award to the agent based upon a quantum meruit basis. The case is not quite in point, as in Avintair the agent in fact provided the services, whereas in the case before Lord Stewart the agent was prevented from so doing by breach on the footballer’s part. That difference, one would have thought however, would not affect the issue of the appropriate measure of remuneration. The Court in Avintair noted that a quantum meruit is usually calculated “by the ordinary or market rate” for the services, though noted that another reasonable method may be adopted where there is no ordinary or market rate. One might have thought that this market rate approach would have commended itself to Lord Stewart, but, as the above quotation shows, he did not favour it: he preferred, as the appropriate measure, “whatever commission the pursuer could have negotiated” with the specific club to which the player transferred. This is, in one sense, a vaguer standard than the market rate, as, without evidence being presented by Blackburn Rovers as to what amount they would paid the agent, we cannot know what the agent’s remuneration would have been in the absence of breach; but, in another sense it is much more specific, as it demands investigation into specific counterfactual negotiations between specific parties rather than a reference to market rates.

Whether or not Lord Stewart was right to take the view he did, in the case to which his Lordship refers in support of his view, the English Court of Appeal judgment in Great Western Insurance Co v Cunliffe, the court did not appear to regard the matter of the agent’s remuneration as an entirely subjective exercise; on the contrary, in the judgment of James LJ it is clear that customary rates are the favoured basis of the remuneration applied by the court:

“Whether you call him a broker or not, the person who is the agent for the merchant or anybody else, by a well-established practice obtains the insurances, and receives a discount of 5 per cent., which he puts into his own pocket. He is paid by the underwriter instead of by his principal. And then, by a practice quite as well known, recognised by everybody connected with the business, recognised by the Courts of Law of this country, referred to over and over again, there is another thing – there is a gratuity which the broker receives upon the settlement of the accounts, being 12 per cent. upon the balance, if the balance should happen to be a favourable one, that is, if the underwriter finds it to be a profitable account he gives 12 per cent. upon it to the broker who brought the business to him.”

This description could be said to equate to a quantum meruit, describing as it does the standard rates applicable in the specific insurance market at issue in the case. The point is reinforced in the same case in the judgment of Mellish LJ, who states:

“If a person employs another, who he knows carries on a large business, to do certain work for him, as his agent with other persons, and does not choose to ask him what his charge will be, and in fact knows that he is to be remunerated, not by him, but by the other persons – which is very common in mercantile business – and does not choose to take the trouble of inquiring what the amount is, he must allow the ordinary amount which agents are in the habit of charging.”

The references to ‘ordinary amount’ and ‘habit of charging’ again suggest an objective evaluation of a market practice.

The Goodwillie litigation continues (Lord Stewart having allowed a proof before answer) and the final determination of what may be due to the agent has thus yet to be made, but it will be interesting to see how the court eventually thinks that the appropriate level of remuneration in agency contracts of this sort should be determined: by reference to the market rate that the agent might have commanded (a reasonably objective standard), or by reference to the sum which the agent could have got in negotiation with Blackburn Rovers (a more subjective standard, which will require, one would imagine, evidence from Blackburn Rovers as to what they might have paid by way of commission).

** It should be added that the litigation has also raised another issue relating to the agent’s remuneration, that being whether provisions in the Scottish Football Association’s Regulations concerning agents’ remuneration were Incorporated into the parties’ contract or not – again, this is a matter for the proof before answer.

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