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Sender:
Gordon Goldberg
Date:
Wed, 12 May 1999 14:05:51 +0100
Re:
Variation clauses

 

Without having read Murphy, J.'s judgment, I answer respectfully (and I hope not rashly), "Hear! Hear!", to Mr Hedley's message. In so far as I have understood the correspondence, I respectfully submit there to be three possibilities all of which, not surprisingly, Chalmers may by analogy be seen to have covered in the Sale of Goods Act 1893:

First, the farmers could not take advantage of their own wrongful failure to appoint an engineer by claiming that it constituted a frustration of the agreement to pay for the extra work; and so they were regarded as having repudiated the agreement and thus liable on a quantum meruit or in damages - cf. s. 9(1) and (2).

Secondly, the failure was a genuine frustration, which the parties chose to ignore; and so the farmers were liable on a quantum meruit - cf. s.9(1).

Thirdly, the failure was by mutual consent; accordingly, there was a variation of the agreement; but the price of the extra work was not fixed by the terms of the variation; and so an undertaking to pay on a quantum meruit was necessarily implied - cf. s. 8(2).


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