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I have often thought that enthusiasm for the more theoretical versions of "unjust enrichment" goes hand-in-hand with an overly simple view of what contract is, and how it works in commercial contexts. As it is, Cotter is a case where the parties signed a standard form contract, and the court held them to it. In its contractual aspects, the case is entirely straightforward.

As I understand it, Eoin has two points which seem to him to discredit the reasoning, though not necessarily the result, of the case.

Firstly, he says that the duty on the farmers to pay more than the flat rate for the work cannot be contractual, because the farmers made it clear throughout that they would pay no more than the flat rate.

This can be answered in four words : the parol evidence rule. In the contractual negotiations, the farmers insisted that they would pay only a flat rate no matter what, but the contractor insisted that he could not take that risk, because of the unknowns as to how much rock had to be removed. In the end, the parties compromised by signing a standard form of Civil Engineering Contract, which was essentially a lump-sum arrangement but allowed for additional remuneration if the contractor encountered

"physical conditions ... [which] could not reasonably have been foreseen".

which is precisely what happened.

That, it seems to me, is that. Eoin is very inventive with his arguments that the farmers are being hard done by if they are held to the form, but I don't see it. The farmers were advised by solicitors. There is no suggestion that anyone misled anyone else. It is nothing to the point that the farmers *orally* insisted on something different. Months of insistence on A, followed by signature to a document saying B, means that in law the parties agree to B, absent special circumstances. If loose talk of "the intentions of the parties" conceals this, then so much the worse for loose talk. As for whether we should feel sorry for the farmers, I don't know enough to say -- it is a complicated story.

Eoin's second point is that the contract, in its literal terms, did not provide for payment of a reasonable sum, but said rather that

"To the extent that the Engineer shall decide the ... physical conditions ... could not reasonably have been foreseen ... the Contractor shall ... be paid ... the reasonable cost of carrying out any additional work ... which would not otherwise have been done ... together with a reasonable percentage ... in respect of profit ... ".

and so Eoin suggests that, no Engineer having been appointed, then either no sum is due, or if it is due then it cannot be contractual.

But as I have already said, a clause of that sort has two aspects. First, that a reasonable sum must be paid. Second, that the procedure for claiming it is to appoint an Engineer and put a reasoned case to that Engineer. And the important point is that the second part is mere mechanism. If, as here, no Engineer is appointed, that does not mean that the claim is dead, but merely that another mechanism must be used.

This is a common enough phenomenon in commercial law, in various contexts. Murphy J was not breaking new ground in building law. Gordon has given examples of the same technique being used in sale-of-goods law. And for an example in property law, see Sudbrook Estates v. Eggleton [1983] 1 AC 444, where an option over land provided for the appointment of valuers to assess the price. On Eoin's argument, failure to appoint valuers would have terminated the option. In fact, the Lords held that a contract to sell at a price set by valuers is in essence a contract to sell at a reasonable price -- and if necessary the court itself could set the price, with the help of expert evidence from valuers.

I am therefore entirely unpersuaded that a non-contractual explanation of the case is called for. This avoids the need to consider the adequacy of Eoin's proposed solution.

Steve Hedley

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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE

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