Dear Colleagues:

I post on behalf of Andrew Tettenborn:

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If you want to liven up a dull afternoon, take a look at the English CA decision in

Sharma & Anor v Simposh Ltd [2011] EWCA Civ 1383

today (on BAILII). Simple facts: buyer pays a deposit of £55,000, agreed non-refundable, under an oral (and hence void) contract to sell an apartment block. Buyer then withdraws. First instance judge says deposit repayable anyway: a void contract can't justify its retention, and indeed provides a ground for recovery. The CA reverse. Property passes in the money: and if parties wish to agree that a non-contractual payment is irrecoverable in certain cases, then the CA says, feel free. Such an agreement may not be a contract, but it prevents the case being one of failure of expectations.

Absolutely correct, to my way of thinking. And a bonus: dicta to the contrary by Laddie J & Pill LJ in Gribbon v Lutton [2002] QB 902 are specifically and deservedly discountenanced.

Andrew Tettenborn

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-- 
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435 

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