2 K. Llewellyn (1939) 52 Harv LR 725, 740–6.
3 W. S. Holdsworth, A History of English Law (1903 et seq., Methuen and Sweet & Maxwell, 17 vols.), xii (1938), 524–42.
4 Holdsworth, A History of English Law, vi (1924), 519–22.
5 56 & 57 Vict., cap. 71.
6 See Rodger (1992) 109 LQR 570.
7 K. Sutton (1969) 7 Alta LR 130, 173; Lord Diplock, (1981) 15 UBCLR 371, 373–4.
8 See Stevenson v Rogers  QB 1028, 1040 (Potter LJ): ‘The Act of 1979 forms a single code; however, that is upon the basis simply that it consolidates and enacts within one statute and without material amendment a number of disparate statutes previously governing the field of sale of goods.’ The learned judge went on to say that a consolidating Act was not more than ‘the sum of its parts’ and that, if doubt as to any of its provisions arose, they were to be construed as if they had remained in the earlier Act or Acts: ibid.
9 Sale and Supply of Goods (Law Com. No. 160, 1987).
10 EC Directive on the sale of consumer goods and associated guarantees (1999/44/EC).
11 Sale and Supply of Goods to Consumers Regulations 2002, SI 2002 No. 3045.
12 Under powers contained in s. 2(2) of the European Communities Act 1972. After the withdrawal of the United Kingdom from the European Union, ‘EU-derived domestic legislation’ will remain in force: European Union (Withdrawal) Act 2018 s. 2. According to s. 3(1): ‘Direct EU legislation [viz. principally regulations], so far as operative immediately before exit day, forms part of domestic law on and after exit day.’
13 e.g., the Act also contains new provisions transposing part of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011. This Directive amended Council Directive 93/13/EEC (on unfair terms in consumer transactions) and Directive 1999/44/EC of the European Parliament and of the Council (on certain aspects of the sale of consumer goods and associated guarantees). It also repealed Council Directive 85/577/EEC (on contracts negotiated away from business premises) and Directive 97/7/EC of the European Parliament and of the Council (on consumer distance contracts).
14 Additional provisions deal with hire, hire purchase, services, digital content contracts, and non-money transfer contracts.
15 M. Bridge (2003) 119 LQR 173.
16 Given that remnants of consumer sales law are still to be found in the Sale of Goods Act, consumer sales law would to this extent be affected by a revision of the Act.
17 See M. Bridge, ‘Do We Need a New Sale of Goods Act?’ in J. Lowry and L. Mistelis (eds), Commercial Law: Perspectives and Practice (Butterworths LexisNexis, 2006), 15–47.
18 G. Gilmore (1948) 57 Yale LJ 1341.
19 For an historical account of these developments, see H. Flechtner (ed.), Honnold: Uniform Law for International Sales under the 1980 United Nations Convention (4th edn, Kluwer, 2009).
20 Contracting parties are free, nevertheless, to exclude the Convention in their mutual dealings (Art. 6), as very commonly they do.
21 Apart from the United Kingdom, only the Republic of Ireland, Portugal, Andorra, and Malta have not adopted the Convention.
22 See generally M. G. Bridge, The International Sale of Goods (4th edn, OUP, 2017), chs. 10–12.
24 CLOUT: Case Law on Uncitral Texts. There is also an information service organized by Pace University of New York available on the Internet but now a little out of date: see <http://cisgw3.law.pace.edu>.
26 See the criticisms of Lord Diplock about the cost and needless complexity of modern legal argument fuelled by the multiple citation of authority in, e.g., Lambert v Lewis  AC 225.
27 W. S. Holdsworth, A History of English Law (1903 et seq., Methuen and Sweet & Maxwell, 17 vols.), ix (3rd edn, 1944), 247–335.
28 The virtues of a clear rule are promoted in M. Chalmers (1903) 19 LQR 10; W. S. Holdsworth, A History of English Law (1903 et seq., Methuen and Sweet & Maxwell, 17 vols.), xi (1938), 315–18.
29 P. S. Atiyah (1980) 65 Iowa LR 1249. A clear manifestation of this trend is apparent in the modern cases dealing with contractual interpretation. See, e.g., Rainy Sky SA v Kookmin Bank  UKSC 50;  1 WLR 2900.
30 The right to terminate for breach was firmly established as a matter of law by cases such as Bentsen v Taylor, Sons & Co. (No. 2)  2 QB 274. Perhaps the best-known example is the laying down of rules governing remoteness of damage in contract; see Hadley v Baxendale (1854) 9 Ex. 341; A.W.B. Simpson (1979) 46 U Chi LR 533.
31 M. Chalmers (1903) 19 LQR 10.
32 Bank of England v Vagliano Bros  AC 107. For a defence of the merits of the Sale of Goods Act in promoting legal simplicity, see A. Diamond, (1968) 31 MLR 361, 368–70.
33 But for references to the Sale of Goods Act 1893 codifying rather than the reforming law, see e.g. Bristol Tramways & Carriage Co. Ltd v Fiat Motors Ltd  2 KB 831, 836; Harris v Tong (1930) 65 OLR 133, 137 (Can.); Healing Sales Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584, 612 (Aust.) (Windeyer J).
34 For a statement of the need to examine pre-codification authorities, see M/S Aswan Engineering Establishment Co. v Lupdine Ltd  1 WLR 1. For the opposite view, see Rogers v Parish Motors (Scarborough) Ltd  2 All ER 232 (Mustill LJ) and Marimpex Mineralöl Handels GmbH v Louis Dreyfus et Cie GmbH  1 Lloyd’s Rep. 167, 179. Assuming the latter approach to an unhelpful statutory definition, how should a court dealing with ‘satisfactory quality’ approach cases decided under the ‘old’ s. 14(6) definition of merchantable quality? See further the examination of the pre-1973 authorities in Cehave NV v Bremer Handelsgesellschaft mbH  QB 44.
35 The Ontario Law Reform Commission, Report on Sale of Goods (1979), i, 23–4, refers to a number of rules as ‘original defects’. But, to take one example, the ‘artificial restrictions on the remedies of a buyer in a sale of specific goods’ were in fact a faithful reflection of a lingering caveat emptor ethic.
36 L. C. B. Gower, Foreword to P. S. Atiyah, The Sale of Goods (Pitman, 1963) (‘perhaps, his least happy effort’). A similar judgment is that of K. Llewellyn, who referred to the Act as drafted ‘not by Blackburn nor by Bramwell, nor yet by Hamilton or Kennedy, but by merely an able lawyer who knew his Bills and Notes’: (1937) 37 Col LR 341, 409.
37 A good test is to read s. 48 on the seller’s right of resale and then to consider whether it even comes close to the modern understanding of contractual termination.
38 M. Chalmers, The Sale of Goods Act, 1893, Including the Factors Acts, 1889 & 1890 (4th edn, Butterworths, 1899), 6: [T]contract of sale … [i]n part … is governed by principles peculiar to itself, and in part by principles common to all [consensual and bilateral] contracts … The Act, except incidentally, deals only with the first-mentioned principles. The principles of law which govern the contract of sale, in common with all other consensual contracts, are outside its scope. But they are saved by sect. [62(2)].
39 Introduction to the first edition of Chalmers, The Sale of Goods Act, 1893, and reproduced in all subsequent editions of the work: ‘Sale is a consensual contract, and the Act does not seek to prevent the parties from making any bargain they please. Its object is to lay down clear rules for the case where the parties have either formed no intention, or failed to express it.’
40 Particularly apparent in Part IV (Performance of the Contract).
41 Expressed most strongly by Jessel MR in Printing and Numerical Registering Co. v Sampson (1875) LR 19 Eq. 462, 465: [I]there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice.
42 McRae v Commonwealth Disposals Commission (1950) 84 CLR 377 (Aust.).
43 Cehave NV v Bremer Handelsgesellschaft mbH  QB 44. On innominate terms, see paras 10.30 et seq.
44 Riddiford v Warren (1901) 20 NZLR 572; Watt v Westhoven  VLR 458 (Aust.).
45 Redgrave v Hurd (1881) 20 Ch. D 1; Torrance v Bolton (1872) LR 8 Ch. App. 118.
46 Kennedy v Panama, New Zealand and Australian Royal Mail Co. Ltd (1867) LR 2 QB 580 (the same test that applies in cases of common mistake).
47 See, e.g., Naughton v O’Callaghan  3 All ER 191, where the issue does not merit a mention.
48 Riddiford v Warren (1901) 20 NZLR 572.
49 Watt v Westhoven  VLR 458, 463 (Aust.): ‘Much of the language, and the arrangement in which the Act has codified the common law, would have to be revised to accommodate a doctrine whereby every warranty could become a condition, and every inducing statement not warranted would be a condition also.’ The approach taken in this case to misrepresentation in s. 62(2) was rejected in Graham v Freer (1980) 35 SASR 424 (Full Ct.). See also Law Reform Commission of New South Wales, Sale of Goods (Report No 51, 1987), paras 2.1 et seq.
50 Leaf v International Galleries  2 KB 86; M. G. Bridge (1986) 20 UBCLR 53; see paras 10.114 et seq.
51 This is particularly evident in the way that the implied term of correspondence with description in s. 13 has been brought into line with the evolving law of express warranty: see Ch. 7, paras 7.31 et seq.
53 McEntire v Crossley Bros  AC 457, 461; Madell v Thomas  1 QB 230, 238.
54 Re Wait  1 Ch. 606; Leigh and Sillavan Ltd v Aliakmon Shipping Co. Ltd  AC 785.
56 The rule has been applied in numerous commodities cases as a last ditch attempt to curb the application of the strict law on termination for breach: e.g., Société Italo-Belge pour le Commerce et l’Industrie v Palm and Vegetable Oils (Malaysia) Sdn. Bhd.  2 Lloyd’s Rep. 695; Peter Cremer v Granaria BV  2 Lloyd’s Rep. 583; Bremer Handelsgesellschaft mbh v Finagrain, Cie Commerciale Agricole et Financière SA  2 Lloyd’s Rep. 259; Bremer Handelsgesellschaft mbh v C. Mackprang Jnr.  2 Lloyd’s Rep. 221.
57 e.g., Sky Petroleum Ltd v VIP Petroleum Ltd  1 WLR 576.
58 United States of America v Motor Trucks Ltd  AC 203; F.E. Rose (London) Ltd v W.H. Pim Jnr. & Co. Ltd  2 QB 450.
59 Stockloser v Johnson  1 QB 476; Barton Thompson & Co. Ltd v Stapling Machines Co.  Ch. 499; Sport Internationaal Bussum BV v Inter-Footwear Ltd  1 WLR 776.
60 United Scientific Holdings Ltd v Burnley Borough Council  AC 904; Federal Commerce & Navigation Co. Ltd v Molena Alpha Inc.  QB 927, 974; W. Goodhart and G. Jones (1980) 43 MLR 489.
61 Gibson v Carruthers (1841) 8 M & W 321; see Ch 11, paras 11.24 et seq.
62 Lord Devlin, Samples of Lawmaking (OUP, 1962), ‘The Relation between Commercial Law and Commercial Practice’ (Lecture 2); L. Trakman, The Law Merchant: The Evolution of Commercial Law (Fred B. Rothman & Co., 1983).
63 Goodwin v Robarts (1875) LR 10 Ex. 337; Edelstein v Schuler & Co.  2 KB 144. For the requirement that custom must be reasonable, see Produce Brokers Co. v Olympia Oil and Cake Co.  2 KB 296, 298.
64 Palgrave, Brown & Son Ltd v SS Turid (Owners)  1 AC 397; Brown v Byrne (1854) 2 E & B 703 (reluctance to find inconsistency between established custom and bill of lading).
65 Lord Devlin, Samples of Lawmaking (OUP, 1962), ‘The Relation between Commercial Law and Commercial Practice’ (Lecture 2).
66 Since rules of presumptive agreement are particularly apparent in the area of delivery, where trade usage is most likely to intrude, the point speaks for itself.
67 See, e.g., Comptoir d’Achat et du Boerenbond Belge S/A v Luis de Ridder Lda  AC 293. See generally M. G. Bridge, The International Sale of Goods (4th edn, OUP, 2017), ch. 7.
68 It is noticeable that the issue of whether the time of delivery was of the essence of the contract was treated, in Hartley v Hymans  3 K.B. 475, 483–4, as not depending upon the terms of the contract; instead, ‘the common law and the law merchant … looked rather to the nature of the contract and the character of the goods dealt with’. See para. 6.26.
70 S. 20A; see para. 3.52. It may, however, be possible to arrive at a similar conclusion by contractual means without the aid of s. 20A.
72 Goodwin v Robarts (1875) LR 10 Ex. 337 (scrip); Edelstein v Schuler & Co.  2 KB 144 (bearer bonds). See M. Bridge, L. Gullifer, K. Low, and G. McMeel, The Law of Personal Property (2nd edn, Sweet & Maxwell, 2017), ch. 25.
73 See especially s. 21(1), laying down the general rule of nemo dat quod non habet. See Ch. 5.
74 H. Beale (ed.), Chitty on Contracts (33rd edn, Sweet & Maxwell, 2018); E. Peel (ed.), Treitel on The Law of Contract (14th edn, Sweet & Maxwell, 2015).
75 This provision originated as s. 17 of the Statute of Frauds 1677, 29 Car. II, cap. 3, and was re-enacted with changes as s. 4 of the Sale of Goods Act 1893.
76 S. 40(2) of the Law of Property Act 1925.
77 Law of Property (Miscellaneous Provisions) Act 1989.
78 The writing requirement is still in existence in a number of Commonwealth jurisdictions; see M. G. Bridge, Sale of Goods (Butterworths, Toronto, 1988), 75–95.
81 Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013/3134 (as amended by SI 2014 No. 870) regs 9–10 and 13 and Schs 1–2. The Regulations transpose Directive 2011/83/EU of the European Parliament and the Council of 25 October 2011 and apply to contracts concluded on or after 13 June 2014.
86 Taking goods as the paradigm example, the required information pertains to: the main characteristics of the goods; the identity of the trader; the total price of the goods inclusive of taxes; the amount of delivery charges, where applicable, or the fact that they will be charged if calculating the amount in advance is impracticable; the arrangements for payment, delivery, performance, and the time of delivery, where applicable; the trader’s complaints handling policy, where applicable; a reminder that the trader is bound to supply goods in conformity with the contract; the existence and the conditions of after-sales services and commercial guarantees, if applicable; the duration of the contract, if applicable, and the requirements for terminating a contract of indefinite duration, if applicable; the functionality of digital content, where applicable; and the compatibility of digital content with hardware and other software of whose existence the trader is aware or should have been aware.
88 Cf. the somewhat literal interpretation of ‘at the same time’ in Power v Sharp Investments Ltd  BCC 609, a case arising under s. 245 of the Insolvency Act 1986 and concerning the execution of a floating charge.
89 S. 11(4) of the 2015 Act.
91 For details, see Sch.2. The additional information includes information referring to cancellation: below, para. 8.16.
92 Bills of Sale Act 1878; Bills of Sale Act (1878) Amendment Act 1882; Bills of Sale Act 1890; Bills of Sale Act 1891.
93 The Bills of Sale Act (1878) Amendment Act 1882 governs security bills of sale (in effect, chattel mortgages) and pursues both policies.
94 Newlove v Shrewsbury (1888) 21 QBD 41; Charlesworth v Mills  AC 231. The Acts do not themselves demand that the agreement take a written form.
95 Bills of sale legislation is confined in its operation to ‘personal chattels’ (defined in s. 4 of the Bills of Sale Act 1878). The definition of ‘bill of sale’ in s. 4 of the 1878 Act is a lengthy one, which, focused on the types of documents in nineteenth-century use rather than upon their defining features, is not as helpful as it ought to be in contemporary conditions: ‘The expression “bill of sale” shall include bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licenses to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred, but shall not include the following documents; that is to say, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse-keepers’ certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented …’ The essence of a bill of sale is that it grants a property interest in ‘personal chattels’ and a licence to the grantee to take possession: see A. Diamond (1960) 23 MLR 399, 402.
97 S. 10(1) of the 1878 Act.
98 Defined in s. 11 of the 1878 Act.
99 Registration must also be renewed at least every five years: s. 11 of the 1878 Act.
100 Ramsay v Margrett  2 QB 18.
101 The subject is dealt with in specialist texts; see especially Halsbury’s Laws of England (5th edn., Title: ‘Financial Services and Institutions’: Part 7, ‘Bills of Sale’ (eds C. Proctor, M. Waters, and E. Evey, Butterworths, 2008 (based on the work of R. M. Goode in the 4th edn, 1992)). It is rare for an issue to arise concerning absolute bills of sale, but see, e.g., Koppel v Koppel  1 WLR 802; Online Catering Ltd v Acton  EWCA Civ 1058;  QB 204.
102 A report of the Law Commission recommended extensive reform to the law governing bills of sale: Bills of Sale, Law Com. No.369 (2016). The recommendations of the Law Commission were taken up by the government of the day and a Goods Mortgages Bill was laid before Parliament on 12 September 2016, only thereafter to be abandoned in May 2018 with no sign of any further legislative initiative in the near future.
103 A regulated agreement is an agreement between a creditor and a debtor who is an ‘individual’ under which ‘credit of any amount’ is provided: s. 8 of the Consumer Credit Act 1974. If the individual is acting ‘wholly or predominantly’ for ‘business purposes’, the agreement is exempt from regulation if the amount of credit exceeds £25,000 (Financial Services and Markets Act 2000 (Regulated Activities) Order SI 2001 No. 544, art. 60C(3)). For consumers, the former £25,000 upper limit was removed with effect from 6 April 2008, but ‘high net worth’ consumers are entitled to opt out of regulation if the credit exceeds £60,260 in defined circumstances (Financial Services and Markets Act 2000 (Regulated Activities) Order SI 2001 No. 544, arts 60(H) and 60(HA).
105 S. 60(3). The Financial Conduct Authority may waive requirements in regulations in individual cases where compliance is impracticable and consumers are not prejudiced by the waiver: s. 60(3), (4).
107 Ss. 62–63. This is modified for cancellable agreements: s. 63(3).
108 S. 64. The time provision is the same as under ss. 62–63. A failure to comply with the requirement of giving notice within seven days, where applicable, may be waived by the Financial Conduct Authority if regulations give the Financial Conduct Authority the power to do so: s. 64(4).
109 S. 65(1). Enforcement includes retaking goods: s. 65(2).
110 Amended by the Unsolicited Goods and Services (Amendment) Act 1975 and partly repealed by the Consumer Protection (Distance Selling) Regulations 2000, SI 2000 No. 2334.
111 Other abusive practices are dealt with by the Consumer Protection from Unfair Trading Regulations 2008, SI 2008 No. 1277, as am. by SI 2013 No. 783 (discussed at paras 8.50 et seq), which repealed Part II of the Fair Trading Act 1973, under which the former Director General of Fair Trading exercised powers to combat such abuses. The list of commercial practices deemed unfair in the 2008 Regulations includes pyramid promotional schemes (Sch. 1 reg. 14). Pyramid selling and other trading schemes are also the subject of regulation under the Trading Schemes Regulations 1997, SI 1997 No. 30, made under the Trading Schemes Act 1996, which amended Part XI of the Fair Trading Act 1973.
112 SI 2000 No. 2334 (as am. by SI 2004 No. 2095, SI 2005 No. 689, SI 2013 No. 783, and SI 2014 No. 549).
113 Reg. 24(2). Directive 2011/83/EU of the European Parliament and the Council of 25 October 2011 exempts the consumer from any need to provide consideration for unsolicited supplies of goods, water, gas, electricity, services, district heating, or digital content: Art. 27. On transposition, see the Consumer Protection from Unfair Trading Regulations 2008, SI 2008 No. 1277, regs 2 (‘products’) and 27M.
114 Reg. 24(3) of the 2000 Regulations.
115 Reg. 24(1)(c). This would mean that the rights of the sender in the goods, previously extinguished under reg. 24(3), are revived. The revival should be prospective: an agreement to return the goods should not allow the sender to treat prior conduct of the recipient as a conversion of or trespass to the goods.
116 Under s. 21(2)(b) of the Sale of Goods Act, an awkwardly worded provision that would protect the ‘validity’ of a contract of sale concluded by someone exercising a common law or statutory power of sale: see Ch. 5. The recipient of unsolicited goods may be treated as someone exercising a statutory power of sale so far as he acts within the immunity conferred by reg. 24(3).
118 The burden of proof is presumably on the recipient.
119 Reg. 24(4), (5). The same offences remain in the unrepealed s. 2 of the Unsolicited Goods and Services Act 1971 (as amended).
120 SI 2002 No. 2013, transposing Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).
122 A service provider is defined as a person providing ‘information society services’: reg. 2(1). There are cross-references in reg. 2(1) to EC Directives to clarify the meaning of information society services, but the key point for present purposes is that the expression includes the sale of goods online: see recital (18) of Directive 2000/31/EC.
125 The word ‘order’ in this provision, reg. 9(1)(c), means a contractual offer, but it does not have that meaning elsewhere in the Regulations (apart from reg. 11(1)(b)).
126 Reg. 9(1). These provisions do not apply to contracts concluded by an exchange of emails or equivalent electronic communications: reg. 9(4).
127 Reg. 9(3). There is no provision made here for an action for damages for breach of a statutory duty but an order may be sought from the court to require compliance on the part of the service provider: reg. 14.
129 Reg. 11(1)(b). There is no provision here for an action for damages for breach of a statutory duty. The word ‘order’ in this provision, reg. 11(1)(b), means a contractual offer, but it does not have that meaning elsewhere in the Regulations (apart from reg. 9(1)(c)).
131 Reg. 11(2)(b). The provisions of reg. 11 do not apply to contracts concluded by an exchange of emails or equivalent communications: reg. 11(3). Parties who are not consumers may exclude the operation of reg. 11: reg. 11(1).
132 Reg. 13. The relevant provisions mentioned above are regs 7, 8, 9(1), and 11(1)(a).
133 Cf. cases of cancellation in consumer cases, discussed at paras 1.35 et seq.
134 Reg. 15. This is not unlike the discretion to declare a contract subsisting in s. 2(2) of the Misrepresentation Act 1967; see 8.25.
135 There is arguably another provision, s. 2(3), which provides that a contract of sale may be absolute or conditional. The occurrence of a condition may arrest the conclusion of a contract; see Ch. 2, para. 2.41.
136 See Payne v Cave (1789) 3 TR 148. On auction sales generally, see F. Meisel and B. W. Harvey, Law and Practice of Auctions (3rd edn, OUP, 2006).
137 British Car Auctions v Wright  3 All ER 462. In so-called ‘Dutch’ auctions, the auctioneer announces the price for which he is willing to sell, starting high and continuing in a downwards direction until someone is prepared to buy at the stated price. The auctioneer is thus making an offer and the successful bidder an acceptance.
140 In McManus v Fortescue  2 KB 1.
141 Under the rule in Collen v Wright (1857) 8 E & B 647.
142 Hence, auctioneers in describing the goods owe no higher duty than a duty of skill and care: Thwaytes v Sotheby’s  EWHC 36 (Ch);  1 WLR 2143. They are not sellers for the purpose of the Sale of Goods Act: Affinity Auction Group Inc. v Manheim Auto Auction 2009 BCSC 873 at  (Can.). But the auctioneer, having paid the price to the principal, has a lien over the goods for the price due from the successful bidder and may also sue for the price even though not the seller of the goods: Chelmsford Auctions Ltd v Poole  QB 542.
143 S. 57(3). The right to bid must be ‘reserved expressly’.
148 Barry v Davies  1 WLR 1962, following Warlow v Harrison (1859) 1 E & B 309. The award of damages is on the same market basis as an award against a non-delivering seller: Barry v Davies  1 WLR 1962, 1969.
149 Warlow v Harrison (1859) 1 E & B 309.
150 It does not follow that a collateral contract to sell to the highest bidder is made only with the person who turns out to be the highest bidder.
152 See s. 2(4). It is likely that an agreement to sell exists, where payment has not yet been made, because of an intention that the property shall pass only upon payment.
153 It would make little sense to require the buyer to pay before taking proceedings.
154 For other legislation on abusive auction practices, see the Auctions (Bidding Agreements) Acts of 1927 and 1969 (bidding rings). Under s. 3 of the 1969 Act, a seller may avoid the contract of sale where there has been a bidding agreement, involving at least one dealer (who need not be the person making the successful bid), by which one or more parties to the agreement undertake not to bid. If restitution of the goods is not made to the seller, then all parties to the bidding agreement are jointly and severally liable to the seller for loss caused by the operation of the bidding agreement.
156 With effect from 1 February 2011, as added by SI 2010 No. 1010, reg. 13, transposing Directive 2008/48/EC of the European Parliament and of the Council on credit agreements for consumers.
158 Consumer agreements for the bailment of goods other than hire purchase agreements: s. 15 (cf. s. 8 and consumer credit agreements).
161 Which imposes a duty to supply a copy of an executed consumer credit agreement.
162 Which imposes a duty to supply a copy of an executed agreement where the regulated agreement is an excluded agreement.
164 Sub-s. (7)(b) (in particular, an insurance or payment protection policy: sub-s. (13)).
168 Ss. 67–73 (as am. by Consumer Credit (EU Directive) Regulations 2010 No. 1010).
169 SI 2000 No. 2334 (as am. by SI 2004 No. 2095, SI 2005 No. 689, SI 2009 No. 209, SI 2010 No. 2960, and SI 2013 No. 783). See generally G. G. Howells and S. Weatherill, Consumer Protection Law (2nd edn, Ashgate, 2005); J. K. Macleod, Consumer Sales Law (2nd edn, Routledge-Cavendish, 2007), ch. 8.
170 In special cases, 14 days: ss. 64(4), 68(b).
172 S. 67. If the consumer is still in possession of goods under the cancelled agreement, he has a lien on those goods pending receipt of the part-exchange goods or of the part-exchange allowance: s. 73(5). If it has not already done so, title to the part-exchange goods vests in the negotiator when the consumer is paid the part-exchange allowance: s. 73(6).
173 Subject to contrary provision in the Act: s. 69(4). Where goods are supplied on an emergency basis or worked by the consumer into land so as to become fixtures, it is only the credit aspect of the transaction that is cancelled: s. 69(2).
176 S. 72(4). A failure to perform this duty is actionable as a breach of statutory duty: s. 72(11).
182 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011. This is a maximum harmonization measure: Art. 4. The Directive requires information to be provided to the consumer. For transposition, see the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (as am. by the Consumer Contracts (Amendment) Regulations 2015/1629), reg. 13(1) and Sch. 2 and above, para. 1.25.
183 SI 2000 No. 2334 (as am. by SI 2004 No. 2095, SI 2005 No. 689, SI 2009 No. 209, SI 2010 No. 2960, and SI 2013 No. 783). So far as contract terms are inconsistent with the protection given to the consumer by the Regulations, they are void: reg. 25.
184 Directive 97/7/EC of the European Parliament and the Council of 20 May 1997 (OJ No. L144 of 4.6.97, p. 19). The Regulations do not transpose Art. 10 of that Directive. The Directive in earlier drafts may be seen at  OJ C156/14 and  OJ C308/18, and the Commission Recommendation at  OJ L156/21.
185 There are exempt transactions, but the only relevant transactions for the purposes of this book are auction sales, sales conducted through a public payphone, and sales made through an automated vending machine or premises: reg. 5(1).
186 Defined as ‘any natural person who, in contracts to which these Regulations apply, is acting for purposes which are outside his business’: reg. 3. A business is defined as including a trade or profession: reg. 3.
187 The supplier must act in a commercial or professional capacity: reg. 3 (‘supplier’).
188 Regs 3–4. Distance communication is any means that does not require the simultaneous presence of the supplier and the consumer: reg. 3. An indicative list of means of distance communication is contained in Sch. 1 to the Regulations.
189 Reg. 13 (exceptions to the right to cancel). The sale of goods cases included here are sales of goods that are perishable or personalized for the buyer or made to the buyer’s specifications; sales of newspapers, periodicals, or magazines; sales of audio or video recordings or of computer software if they are unsealed by the consumer; and sales where the price depends on fluctuations in the financial markets not controlled by the supplier. The reference to financial markets points to ‘goods’ having a broader meaning than it does in English law under the Sale of Goods Act 1979 (cf. R (on the application of Khatun) v Newham LBC  EWCA Civ 55;  QB 37). The Regulations also provide that they are only partly applicable to certain contracts (regs 7–20 are disapplied), including contracts for the supply of food, beverages, and other goods intended for everyday consumption, supplied by regular roundsmen to the consumer’s residence or workplace: reg. 6.
190 The method of giving the notice is dealt with by reg. 10.
191 Reg. 11(2), referring back to reg. 8.
192 The information has to be supplied in writing or another durable medium available and accessible to the consumer: reg. 8(1). See also reg. 11(3).
195 Reg. 11(4). Since none of the three cancellation periods starts with or depends in any way upon the date of conclusion of the contract, it seems impossible to make sense of reg. 11(1): ‘… [T]cancellation period in the case of contracts for the supply of goods begins with the day on which the contract is concluded and ends as provided for in paragraphs (2) to (5).’ Where the goods are received by a third party, the third party’s receipt of the goods is deemed to be the consumer’s receipt in paras (2) to (4): reg. 11(5).
196 Regs 7(a)(vi) and 8(2)(b).
197 Reg. 8(2)(c)–(e). Cancellation under reg. 8(2)(e) seems to be used in a different sense to mean termination.
198 This information, to be supplied either prior to the contract or in good time and before delivery, comprises information concerning: the identity of the supplier and, if payment is made in advance, the address of the supplier; a description of the main characteristics of the goods; the price of the goods; delivery costs; arrangements for payment, delivery or performance; the cost of using means of distance communication; the period for which the offer or price remains valid; where appropriate, the minimum duration of the contract; and the intention, if it exists, to supply substitute goods if the designated goods are unavailable and to bear the cost of that substitution: reg. 7(1). The information must be ‘clear and comprehensible’, due regard being had to ‘the principle of good faith in commercial transactions and the principles governing the protection of those who are unable to give their consent such as minors’: reg. 7(2). The supplier’s commercial purpose should be made clear: reg. 7(3). A supplier making a telephone communication should also make its identity and commercial purpose clear at the beginning of the call: reg. 11(4) (e.g., ‘I want to sell you double-glazing’, not ‘I want to interest you in energy savings’).
199 The Regulations do not create an offence for failing to supply this information, but provision is made for complaints to enforcement authorities and for the seeking of injunctions to prevent breaches of the Regulations: regs 26–27 (as am. by SI 2013 No. 783). Provision is also made for the giving of undertakings in lieu of injunctions: regs 28–29 (as am. by SI 2013 No. 783).
201 Reg. 14(1), (3) (return of moneys paid by or on behalf of the consumer).
202 Reg. 14(5), except where the consumer exercises a right to reject the goods under, e.g., s. 14 of the Sale of Goods Act: reg. 14(6), or where the term requiring the consumer to return the goods is an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999 No. 2083. The reference to the 1999 Regulations survives despite their revocation by the Consumer Rights Act 2015 Sch. 4 para. 34.
203 Reg. 15. For the repayment of credit and interest after the cancellation of a related credit agreement, see reg. 16.
204 Reg. 17(2), (3). The consumer’s obligations are discharged if he sends or delivers the goods to a person to whom he could have given a cancellation notice (reg. 17(5)), whereupon his obligation of reasonable care ceases (reg. 17(6)).
205 Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, reg. 35(8) (as am. by the Consumer Protection (Amendment) Regulations 2014, SI 2014 No. 870, reg. 9).
211 Dealt with under the heading of off-premises selling by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013 No. 3134, reg. 10.
212 SI 1987 No. 2117, as am. by SI 1988 No. 958 and SI 1998 No. 3050.
213 Council Directive 85/577/EEC of 20 December 1985,  OJ L372/31.
214 SI 2008 No. 1816 (as am. by SI 2010 No. 1010), entering into force on 1 October 2008. See Robertson v Swift  EWCA Civ 1794;  Bus LR 479.
215 Council Directive 85/577/EC. The legal effects that flow from cancellation are governed by national law: E. Friz GmbH v Von der Heyden (C-215/08)  3 CMLR 23.
216 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011. This is a maximum harmonization measure: Art. 4. The Directive requires information to be provided to the consumer. See the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (as am. by the Consumer Contracts (Amendment) Regulations 2015/1629), reg. 10(1) and Sch. 2 and above, para. 1.25.
217 Reg. 2: ‘ “consumer” means a natural person who in making a contract to which these Regulations apply is acting for purposes which can be regarded as outside his trade or profession.’
218 Reg. 2: ‘ “trader” means a person who, in making a contract to which these Regulations apply, is acting in his personal or professional capacity and anyone acting in the name or on behalf of a trader.’
219 The Regulations apply even if there are two visits to a consumer’s home, with the contract being signed on the second visit: Robertson v Swift  EWCA Civ 1794;  Bus LR 479; revd in part  UKSC 50;  1 WLR 3438.
222 Listed in Sch. 3. The relevant contracts for sale of goods purposes are: contracts for the supply of goods and their incorporation in immovable property; contracts for the supply by a regular roundsman of foodstuffs or beverages intended for current consumption; contracts for the sale of goods in a catalogue that the consumer has a proper opportunity to read in the absence of the trader’s representative, where there is intended to be continuity of contact between the consumer and the trader’s representative concerning the contract or any subsequent transaction, and where the contract and the catalogue contain a prominent notice informing the consumer of his right to return the goods to the supplier or otherwise cancel the contract, with no obligation other than that of taking reasonable care of the goods (in effect, a light touch version of the cancellation right conferred by the 2008 Regulations themselves); and credit contracts, e.g. conditional sales, where the amount of credit does not exceed £35, as well as other contracts where the payments do not exceed £35.
225 Reg. 7(6). For the central role played by the notice in redressing the balance between consumer and trader, see Martin v EDP Editores SL (C-227/08)  2 CMLR 27.
228 See Sch. 4 Part I (including the name of the trader, the trader’s reference number, code, or other details, the name and address of the person to whom notice of cancellation must be given, and a statement that the consumer may use the cancellation form if he wishes).
231 Reg. 2(1). This may give rise to considerable hardship in the case of certain small businesses: see Robertson v Swift  EWCA Civ 1794 at ;  Bus LR 479 (a plea for the revision of the Regulations to increase the range of exempted contracts); revd in part  UKSC 50;  1 WLR 3438.
232 A postal notice is treated as served at the time of posting: reg. 8(5).
241 Reg. 4(6) (subject to exceptions in the Regulations).
242 The sale of goods contracts in reg. 9(4) comprise the supply of (a) newspapers, periodicals, or magazines; (b) goods whose price depends upon market fluctuations that are not ‘controlled’ by the trader; (c) goods supplied to meet an emergency; (d) goods supplied to a customer’s specification or otherwise customized; (e) perishable goods; (f) goods consumable by use and consumed before cancellation; (g) goods incorporated in land before cancellation; and (h) goods relating to a funeral.
246 Reg. 10(1), (2). Any ‘property’ provided by the consumer as security must also be returned: reg. 10(3). The consumer also has a lien over the goods for the return of part-exchange goods or the payment of the part-exchange allowance: reg. 14. The consumer’s right to a part-exchange allowance arises if the part-exchange goods are not returned to him within ten days of cancellation in substantially as good a condition as when they were delivered to the trader: reg. 14(2).
247 Reg. 13(2) (goods supplied to the consumer before the expiry of the cancellation period: see reg. 9(2), (3)(b)).
248 Reg. 13(1). Apart from cases where the consumer has a lien, the consumer’s duty to restore is unenforceable so long as the trader fails in accordance with reg. 10(3) to return any security provided by the consumer.
251 Reg. 13(1). The duty of reasonable care runs for twenty-one days after the cancellation, unless within that time the trader serves a request in writing for the restoration of the goods: reg. 13(6).
253 Termination statements are dealt with by s. 103.
254 S. 99(1), (2). The property in the goods thereupon immediately revests in the previous owner: s. 99(5).
256 S. 100(1). The court, moreover, may require a lesser amount to be paid if satisfied that the loss caused to the creditor by early termination is less than the amount payable under s. 100(1): s. 100(3). A greater amount may be payable by a debtor who has failed to take reasonable care of the goods: s. 100(4).
257 Defined as agreements of ‘no fixed duration’ in s. 189(1).
258 But not certain excluded agreements (relating mainly to overdraft facilities and land): s. 98A(1), (8).
259 S. 98A (in force as of 1 February 2011).
260 See Palmer’s Company Law (ed. by G. K. Morse, Sweet & Maxwell, looseleaf), i, Pts 2–3.
261 See generally H. Beale (ed.), Chitty on Contracts (33nd edn, Sweet & Maxwell, 2018); E. Peel (ed.), Treitel on The Law of Contract (14th edn, Sweet & Maxwell, 2015). In particular, note that a lack of capacity renders a contract voidable and that a contracting party should have known or ought to have known of the other party’s incapacity: Hart v O’Connor  AC 1000, 1014; Dunhill v Burgin  UKSC 18;  1 WLR 933.
262 S. 3(2) formerly applied also to mental incapacity. The same rule is now to be found in the Mental Capacity Act 2005, s. 7(1). According to s. 2(1), ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.
263 The Family Law Reform Act 1969 reduced the age from twenty-one and so, to a large extent, eliminated the problem of minors’ contracts.
264 Ryder v Wombwell (1868) LR 4 Ex. 32.
265 Ryder v Wombwell (1868) LR 4 Ex. 32; Nash v Inman  2 KB 1.
266 Nash v Inman  2 KB 1. For the difficulties of a seller who lacks knowledge, see Johnstone v Marks (1887) 19 QBD 509. For details of nineteenth-century case law showing the consumer needs of sons of the nobility, see E. Peel (ed.), Treitel on the The Law of Contract (14th edn, Sweet & Maxwell, 2015), para. 12-006.
267 See Nash v Inman  2 KB 1; Roberts v Gray  1 KB 520 (services). But an incapacitated person able to show that he did not understand what he was doing may at his option avoid the contract: Hart v O’Connor  AC 1000.
268 The position of mentally incapable buyers is different. If the seller is unaware of the mental disorder, he need not rely upon s. 3 but may enforce the contract at common law: Baxter v Portsmouth (1826) 5 B & C 170. Otherwise, the contract may be avoided by the mentally incapable party: Imperial Loan Co. v Stone  1 QB 599. A drunkard is liable on a contract at common law unless his condition is so extreme as to be known to the other party: Gore v Gibson (1843) 13 M & W 623.
269 Discussed in the context of contractual certainty at para. 1.44.
270 If the contract gives the seller a discretion to settle the price, that discretion is not unconfined. In a case dealing with the sale of financial assets by the seller upon default by the buyer, Socimer International Bank Ltd v Standard Bank London Ltd  EWCA Civ 116,  1 Lloyd’s Rep. 558, Rix LJ said at : ‘[A]maker’s discretion will be limited, as a matter of necessary implication, by matters of honesty, good faith and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality.’ This obligation fell short of an objective valuation of the assets. For other cases on the exercise of a contractual discretion, see Paragon Finance plc v Nash  1 WLR 685; Abu Dhabi National Tanker Co v Product Star Shipping Ltd (The Product Star)  1 Lloyd’s Rep 397; Horkaluk v Cantor Fitzgerald International  EWCA Civ 1287;  ICR 402; JML Direct v Freesat UK Ltd  EWCA Civ 34; Barclays Bank plc v Unicredit Bank AG  EWHC 3655 (Comm); Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd  EWCA Civ 200; Watson v Watchfinder.co.uk  EWHC 1275 (Comm);  Bus LR 1309; BHL v Leumi ABL Ltd  EWHC 1871 (QB);  2 Lloyd’s Rep. 237. See also M. G. Bridge (2019) 136 LQR 227.
271 Defined in the usual way in s. 8(3) as dependent upon the particular circumstances.
272 With the exception of the particular method dealt with by s. 9.
273 A problem of an obvious chicken-and-egg character raised in May & Butcher Ltd v The King (1929)  2 KB 17 note.
274 See in particular Valpy v Gibson (1847) 4 CB 837; Acebal v Levy (1834) 10 Bing. 376.
277 And was thus not a standard market item where the seller might have been expected to find another buyer.
278 Carrying the law beyond the more restrictive statements in Acebal v Levy (1834) 10 Bing. 376, 382, by Tindal CJ, who also gave the judgment in Hoadly v M’Laine (1834) 10 Bing. 482.
279 Hall v Busst (1960) 104 CLR 206, 233–4 (Aust.) (Menzies J). Menzies J was prepared to distinguish Hoadly as a work and materials contract, so that the buyer would be liable in a restitutionary quantum meruit action for a reasonable price on completion of the work. Windeyer J, dissenting on a different point in Hall v Busst, supported Hoadly and the reading it directed of s. 8(2). To this effect, see also Wenning v Robinson (1964) 64 SR(NSW) 157 (Aust.); Montana Mustard Seed Co. v Gates (1963) 42 WWR 303 (Can.).
280 See, e.g., Hillas & Co. Ltd v Arcos Ltd  All ER 494; Custom Motors Ltd v Dwinell (1975) 61 DLR (3d) 342 (Can.).
281 See the general contract texts.
282 Hillas & Co. Ltd v Arcos Ltd  All ER 494; Pagnan SpA v Feed Products Ltd  2 Lloyd’s Rep. 601 (Bingham J); Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery (No. 1)  EWCA Civ 406;  2 Lloyd’s Rep 76 (where the authorities are reviewed in detail). See also iSoft Group plc v Misys Holdings Ltd  EWHC 2094 (Ch) at –;  1 All ER (Comm) 1; Northern Foods Ltd v Focal Foods Ltd  EWCA Civ 1262; Hughes v Pendragon Sabre Ltd  EWCA Civ 18;  1 Lloyd’s 311; Astor Management AG v Atalaya Mining plc  EWHC 425 (Comm); Associated British Ports v Tata Steel UK Ltd  EWHC 294 (Ch);  2 Lloyd’s Rep 11.
283 iSoft Group plc v Misys Holdings Ltd  EWCA Civ 229 at  (Buxton LJ).
284 F. & G. Sykes (Wessex) Ltd v Fine Fare Ltd  Lloyd’s Rep 57; British Bank for Foreign Trade v Novinex Ltd  1 KB 623; MRI Trading AG v Erdenet Mining Corp LLC  EWCA Civ 156;  1 Lloyd’s Rep 638.
285 Foley v Classique Coaches Ltd  2 KB 1; Mack & Edwards (Sales) Ltd v McPhail Bros (1968) 112 SJ 211.
286 Foley v Classique Coaches Ltd  2 KB 1; MRI Trading AG v Erdenet Mining Corp LLC  EWCA Civ 156;  1 Lloyd’s Rep 638.
287 e.g., Nicolene Ltd v Simmonds  1 QB 543 (‘the usual conditions of acceptance apply’).
288 e.g., Scammell v Ouston  AC 251 (‘balance of purchase price can be had on hire purchase terms’).
289 See, e.g., Re Nudgee Bakery Pty Ltd’s Agreement  Qd. R 24 (Aust.), where a five-year contract for flour requirements prescribed payment at the maximum level permitted by a regulatory contract without providing for the case where the statute was repealed. Also Kidston v Sterling and Pitcairn Ltd (1920) 61 SCR 193 (Can: parties could not agree on what they meant by ‘market price’ in seven-year supply contract, except that it did not mean the market price).
290 May & Butcher Ltd v The King (1929)  2 KB 17 note. See also Courtney and Fairbairn Ltd v Tolaini Bros (Hotels) Ltd  1 WLR 297; Barbudev v Eurocom Cable Management Bulgaria EOOD  EWCA Civ 548 at –;  2 All ER (Comm) 963. May & Butcher was distinguished in a case involving a lease with an option to purchase the reversion at a price to be agreed, not by the parties themselves, but by valuers appointed by each of the parties: Sudbrook Trading Estate Ltd v Eggleton  1 AC 444; see also Queensland Electricity Generating Board v New Hope Collieries Pty Ltd  1 Lloyd’s Rep. 205.
291 F. & G. Sykes (Wessex) Ltd v Fine Fare Ltd  1 Lloyd’s Rep. 53 (buyer’s requirements over five years of 30–80,000 broiler chickens with the precise figure to ‘be agreed’). See also Global Container Lines Ltd v State Black Sea Shipping Co.  EWCA Civ 3007; 1 Lloyd’s Rep. 127.
292 MRI Trading AG v Erdenet Mining Corp LLC  EWHC 1988 (Comm) at ;  2 Lloyd’s Rep 465, affd  EWCA Civ 156.
293 Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery (No. 1)  EWCA Civ 406;  2 Lloyd’s Rep 76; MRI Trading AG v Erdenet Mining Corp LLC  EWHC 1988 (Comm) at ;  2 Lloyd’s Rep 465, affd  EWCA Civ 156; Teekay Tankers Ltd v STX Offshore & Shipbuilding Co Ltd  EWHC 253 (Comm);  1 Lloyd’s Rep 387.
294 Queensland Electricity Generating Board v New Hope Collieries Pty Ltd  1 Lloyd’s Rep 205. See also Alstom Signalling Ltd v Jarvis Facilities Ltd  EWHC 1232 (TCC); 95 Con LR 55 (court to settle ‘differences’). S. 8(2) of the Sale of Goods Act does not exhaust the possibilities allowing resort to a reasonable price: MRI Trading AG v Erdenet Mining Corp LLC  EWHC 1988 (Comm) at ;  2 Lloyd’s Rep 465.
295 Especially the case in output and requirements contracts where one party’s needs or capacity are monopolized by the other.
296  EWCA Civ 406;  2 Lloyd’s Rep 76; at . See also BJ Aviation Ltd v Pool Aviation Ltd  EWCA Civ 163;  2 P. & C.R. 25 at  (noting also that a court cannot imply a term inconsistent with that which has been agreed).
297 A similar problem presents itself with the Vienna Convention on Contracts for the International Sale of Goods 1980: compare Arts 14 and 55.
298 There is a problem with interpreting the Act in this way: the Act does not as such define ‘contract’, which arguably should be interpreted according to the general law.
299 On agreements to negotiate, see G. Leggatt,  JBL 104.
301  2 AC 128, 138. See also Shaker v Vistajet Group Holdings SA  EWHC 1329 (Comm) at ;  2 Lloyd’s Rep 93.
302 Walford v Miles  2 AC 128.
303 It is common for a preliminary contract to contain a break clause, by which the professional fees of the prospective purchaser will be reimbursed if the prospective vendor breaks off negotiations, but the fees may not exceed a conventional limit, for otherwise they would amount to unlawful financial assistance under the Companies Act 2006, ss. 677 et seq.
304 Pitt v PHH Asset Management Ltd  1 WLR 327.
305 See Rafsanjan Pistachio Producers Co-operative v Kaufmanns Ltd (Unreported, 19 December 1997).
306 iSoft Group plc v Misys Holdings Ltd  EWHC 2094 (Ch) at .
307  1 Lloyd’s Rep 205.
308  2 AC 128, 138.
309 Little v Courage Ltd  CLC 164, 169; Philips Petroleum v Enron Europe  CLC 329 at ; London & Regional Investments Limited v TBI plc  EWCA Civ 355; Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd  EWHC 1341 (TCC) at –; Shaker v Vistajet Group Holdings SA  EWHC 1329 (Comm) at ;  2 Lloyd’s Rep 93; Teekay Tankers Ltd v STX Offshore & Shipbuilding Co Ltd  EWHC 253 (Comm);  1 Lloyd’s Rep 387. Cf. Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd  EWHC 2104 (Comm);  1 WLR 1145 (treating as binding a dispute resolution clause in a sale contract calling first for ‘friendly discussions’).
310 Petromec Inc. v Petroleo Brasiliero SA Petrobas (No. 3)  EWCA Civ 891;  1 Lloyd’s Rep 121 at –; Trustees of Edward Higgs Charity v SISU Capital Ltd  EWHC 1194 (QB) at ; Rosalina Investments Ltd v New Balance Athletic Shoes (UK) Ltd  EWHC 1014 at  –. Cf. Walford v Miles  2 AC 128, 138.
311 Barbudev v Eurocom Cable Management Bulgaria EOOD  EWCA Civ 548 at –;  2 All ER (Comm) 963 (treating an agreement to negotiate as an agreement to agree); Shaker v Vistajet Group Holdings SA  EWHC 1329 (Comm) at ;  2 Lloyd’s Rep 93. Cf. Jet2.com Ltd v Blackpool Airport Ltd  EWCA Civ 417 at ;  2 All ER (Comm) 1053 (‘a best endeavours obligation might at least be held to import an agreement to negotiate in good faith’).
312 James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd  AC 583.
313 S. 9(1) codifies Cooper v Shuttleworth (1856) 25 LJ Ex. 114.
314 The property, it seems, would thereupon pass.
315 This codifies Clark v Westrope (1856) 18 CB 765.
316 S. 9(2) would reverse the actual result in Vickers v Vickers (1867) LR 4 Eq. 529, 535–6 (Page-Wood V-C: ‘this particular case … tries the principle to the utmost’).
317 Cf. Sudbrook Trading Estate Ltd v Eggleton  1 AC 444.