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<s>[INST] What details can you share about the following response? [/INST]
Contracts.
The sale of the car was in fact undertaken by
four separate but inter-related contracts. These
were:
(1) A contract between SMRL and Mrs Brewer whereby
she provided a sum of �40,000 to cover the deposit
payable to SMRL when it sold the car for �430,000.
This deposit was not covered by the sum being advanced
by Fortis to enable it to buy the car and let it
on to Mrs Brewer since Fortis had contracted to
bail it on hire purchase terms to Mrs Brewer for
the repayment of the lesser sum of �390,000 and
financing charges on that lesser sum. The contract
was entered into on 5 June 2007 when Mrs Brewer
arranged for the transfer of the deposit from her
account to SMRL's account pursuant to SMRL's invoice
dated 30 May 2007. This contract was, therefore,
a contract which was both subject to and subordinate
to the contract of sale to Fortis. It was, in summary,
a contract which was evidenced by SMRL's invoice
to Mrs Brewer dated 30 May 2007 that was subject
to an implied term that the car conformed to the
description as set out in SMRL's invoice to Fortis.
(2) A contract between SMRL and Fortis whereby SMRL
sold the car to Fortis for �430,000 (the sum being
lent to, plus the deposit paid by, Mrs Brewer).
The contract was made on or about 6 June 2007 when
Fortis transferred �390,000 to SMRL pursuant to
SMRL's invoice of 30 May 2007.
(3) The hire purchase agreement entered into between
Mrs Brewer and Fortis. This agreement was entered
into by Mr Mann filling out Fortis's blank standard
conditions form by adding his description of the
car using his words "1930 Speed Six Bentley Car",
passing the completed form to Mr Hardiman who gave
it to Mrs Brewer to sign and who himself then forwarded
the signed form to Fortis on about 6 June 2007.
Fortis subsequently countersigned that agreement
and sent a copy to Mrs Brewer on 3 July 2007.
(4) The contract for the sale of the car by Mr James
to SMRL which was entered into when Mr Mann forwarded
�325,000 from SMRL to Mr James on 8 June 2007 with
a purchase invoice in SMRL's name. This contract
replaced the contract or arrangement between Mr
Mann and Mr James that had been entered into in
December 2006 when Mr James bailed the car to Mr
Mann to enable him to arrange for its sale on behalf
of Mr James.</s> | 1,459 |
<s>[INST] What details can you share about the following response? [/INST]
Contractual
Description. The question that arises
is whether there was a contractual description of
the car in each of these contracts. The answer is
as follows.</s> | 1,460 |
<s>[INST] What is the main topic of the following response? [/INST]
The contract
between SMRL and Mrs Brewer. The goods being
sold by SMRL were described as: a "1930 Bentley
Car" with the following details:
Registration No: PG6345
Chassis No: SB2770
Engine No: WK2671
Year: 1930</s> | 1,461 |
<s>[INST] Who are the main participants in the following event? [/INST]
Mr Hardiman had
asked Mr Mann to issue the invoice with the description
of the car being "1930 Bentley Speed Six". However,
the invoice that he issued omitted reference to
"Speed Six". Mr Mann initially explained that he
issued the invoice in this way because that is always
how he describes things in his invoices. However,
his sales invoice relating to the sale of the car
following his repurchase of it from Fortis that
was dated 5 November 2009 referred to the car as
a "Bentley Speed Six". His explanation for the use
of that wording was that the customer had asked
for it on that occasion. Neither explanation is
credible. However, taking both explanations together
as identifying Mr Mann's intentions when drafting
Mrs Brewer's invoice, they show that he intended
and was prepared to contract with Mrs Brewer using
the description suggested by Mrs Brewer which was
one that Mr Hardiman had been given by Mrs Brewer
and which had been taken from the contractual warranty
previously put forward by him.</s> | 1,462 |
<s>[INST] Who are the main participants in the following event? [/INST]
Moreover, the description
in the invoice was clearly intended to be subject
to the contractual warranty made by Mr Mann on both
his and SMRL's behalf to Mrs Brewer to the effect
that the Bentley Motor Car in question was a Speed
Six with a Speed Six engine. Therefore, the description
contained in the sale contract must be subject to,
and read together with, that contractual warranty.
This description must also be read together with
the same contractual description that was contained
in the hire purchase agreement and the sale contract
between SMRL and Fortis. Mr Mann had drafted and
inserted this description in the contract between
SMRL and Fortis and his wording had been used by
Mr Hardiman when filling in the hire purchase agreement
and they were clearly intended by Mrs Brewer, SMRL
and Fortis to be interlinked and to take effect
together with SMRL's contract with Mrs Brewer.</s> | 1,463 |
<s>[INST] What is the main topic of the following response? [/INST]
Thus, the description,
in context, was intended to mean, and did mean,
"a 1930 Speed Six Bentley Motor Car incorporating
a 1930 Speed Six engine".</s> | 1,464 |
<s>[INST] What details can you share about the following response? [/INST]
The contract
of sale between SMRL and Fortis. This described
the car as "One 1930 Bentley Speed Six Car". This
description was provided by Mr Mann and the parties
clearly intended this description to have the same
meaning as the description in the related contract
entered into by SMRL with Mrs Brewer given their
close connection.</s> | 1,465 |
<s>[INST] Who are the main participants in the following event? [/INST]
The hire purchase
agreement. This was filled in by Mr Hardiman
using the description of the car as a "1930 Bentley
Speed Six" that had originated from Mr Mann, signed
by Mrs Brewer on 6 June 2007, sent off by Mr Hardiman
to Fortis and signed by Fortis on or before 3 July
2007. All parties clearly intended that the car
was to be described in all three related contracts.</s> | 1,466 |
<s>[INST] Who are the main participants in the following event? [/INST]
The sale of
the car and the passing of property in the car from
Mr James to SMRL. The description of the car
was a 1930 "Bentley motor car" with the same registration,
chassis and engine numbers as set out in the other
contract documents. This contract was entered into
on 8 June 2007 when Mr Mann sent Mr James SMRL's
invoice for the car with the agreed purchase price
of �325,000.</s> | 1,467 |
<s>[INST] Who are the main participants in the following event? [/INST]
Contractual
description. The classic test for
determining whether a description of goods being
sold is a contractual description creating an obligation
on the seller to ensure that the goods comply with
that description is set out in the speech of Lord
Wright in Grant v Australian Knitting Mills Ltd
[13]:
"It may also be pointed out that there is a sale
by description even though the buyer is buying something
displayed before him on the counter; a thing is
sold by description, though it is specific, so long
as it is sold not merely as the specific thing but
as a thing corresponding to a description, e.g.,
woollen under-garments, a hot water bottle, a secondhand
reaping machine, to select a few obvious illustrations."
The car was undoubtedly sold as a "thing corresponding
to a description" whose meaning was "1930 Speed
Six Bentley with a 1930 Speed Six engine". The sale
and hire contracts were, therefore, respectively,
sales and a bailment by description.</s> | 1,468 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Conclusion
� contractual description. The description
"One 1930 Bentley Speed Six Car" in the sale contract
from SMRL to Fortis and in the hire purchase agreement
between Fortis and Mrs Brewer and "Bentley Car"
in the sale contract between SMRL and Mrs Brewer
are contractual descriptions which have the meaning:
"a 1930 Speed Six Bentley car containing a 1930
Speed Six engine and a 1930 Speed Six chassis".
E. Breach of warranty and non-compliance with
description</s> | 1,469 |
<s>[INST] What event is described in the following response? [/INST]
Introduction.
One of the principal difficulties in this case
has been to identify how, for the purposes of section
9 of the Supply of Goods (Implied Terms) Act 1973
and for the purposes of the Sale of Goods Act, the
car should have been described. This section provides,
in the same way as is implied into a sale of goods
contract, that where goods under a hire-purchase
agreement are bailed by description, there is an
implied term that the goods will correspond with
that description. The car was bailed by description,
being described by the phrase "1930 Bentley Speed
Six Car". It was also correspondingly sold by description
to Fortis and to Mrs Brewer in the respective contracts
of sale.</s> | 1,470 |
<s>[INST] What is the main topic of the following response? [/INST]
Mr Mann and
SMRL's case. Mr Mann, supported by
Mr Fenn's evidence about the BDC's system of classifying
vintage Bentleys, insisted that a "Speed Six" Bentley
means, and means nothing more than, that the car
in question incorporates into its chassis that part
of the chassis containing the original number that
had been fixed into or onto that part of a Speed
Six chassis that had left the Cricklewood works
in 1929 or 1930.</s> | 1,471 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
When pressed, both
men accepted that a Speed Six car that incorporated
such a chassis number should be supported by a continuous
history which means, in the context of the vintage
Bentley trade, an authentic documentary record of
the car throughout its history since 1930. These
documents should identify the registered owner of
the car and its use throughout that history and
should also identify and authenticate the parts
introduced into the car since it left the Cricklewood
works. I would add that the car's continuous history
also entails the production of a certified or authenticated
test certificate or test results which proves that
the car satisfies an accepted applicable specification
following any significant change to either its engine
or chassis.</s> | 1,472 |
<s>[INST] What details can you share about the following response? [/INST]
Answer to
Mr Mann's case. The BDC's limited
definition of a Speed Six, or of any other vintage
Bentley type, that was championed by Mr Fenn does
not include any reference to the car's continuous
history. However, the BDC's limited definition without
reference to continuous history clearly provides
a satisfactory method of classifying a car as being
a particular vintage Bentley type for BDC's purposes.
These purposes are to define who may be a member
of the BDC and which car may enter any particular
race, competition or rally that it sponsors. The
method of classification used by the BDC was not
formally established in evidence but I am satisfied
that the broad and somewhat rudimentary system of
classification used by Mr Fenn with its reference
to chassis number without any reference to continuous
documentary history is used within the BDC and is
workable for its limited purposes of defining who
may be a member of the BDC and what car may enter
one of its sponsored races or competitions.</s> | 1,473 |
<s>[INST] What is the main topic of the following response? [/INST]
However, the BDC's
method of describing a Speed Six car is not a sufficient
method of describing the Speed Six car type for
the purposes of a sale or bailment by description.
This is because the Speed Six car type has a limited
membership of no more than 181 cars but all, or
the vast majority of those cars have now been substantially
changed and are no longer capable of being accurately
described for contractual purposes, without qualification
and elaboration, as a 1930 Speed Six car.</s> | 1,474 |
<s>[INST] Who are the main participants in the following event? [/INST]
All cars that started
life as a Speed Six car are unique and are approximately
eighty years old. Each surviving Speed Six has changed
significantly over the years, some beyond recognition,
from the car that left the Cricklewood works on
first delivery. The Speed Six characteristics or
qualities that any one potential buyer or Speed
Six enthusiast are looking for in any one of these
unique cars include some of the following intangible
features of the car: its performance during its
active racing lifetime; its being the product of
the design, engineering and mechanical skills of
W.O. and his unique team of assistants in the vital
production years between 1929 and 1930; its having
been produced in the Cricklewood workshop; its current
performing capability; its present standard of upkeep
and appearance; its current value as an historic
and unique vintage car and its future potential
for keeping or increasing its current value as a
collector's item in a changing and unpredictable
market.</s> | 1,475 |
<s>[INST] What event is described in the following response? [/INST]
Thus, it is a necessary,
but not a sufficient, characteristic of a car that
is described as a 1930 Speed Six that its original
chassis number is to be found on part of its original
chassis within the car.</s> | 1,476 |
<s>[INST] What event is described in the following response? [/INST]
Speed Sixes
sold by description. The purpose
of the statutory requirement that goods sold or
bailed by to a consumer must confirm to their description
is to enable the consumer to know fully and precisely
what is being bought, bailed or hired. A seller
is at risk of selling goods in breach of the implied
term requiring goods to conform to their description
if that description is a general one which embraces
a wide variety of different features not all of
which are always present in goods of that description.
This is because that generic description might reasonably
extend to features that are not present in a particular
item but which are nonetheless features required
by the buyer and which the buyer had reasonably
understood to be present in the goods in question.</s> | 1,477 |
<s>[INST] What details can you share about the following response? [/INST]
Thus, to take this
case, the general description "1930 Speed Six" was
one which was capable of covering any car with an
authentic Speed Six chassis whatever the provenance
of the engine. In this case, the description was
intended by the seller to describe a car which started
life with a Speed Six but which had subsequently
been provided with a replacement engine which had
not started its life as a Speed Six engine. However,
the buyer as she communicated to the seller prior
to the sale of the car, wanted a car whose engine
was a 1930 Speed Six engine that was directly associated
with the Speed Six golden age and with W.O.'s racing,
speed, engineering and mechanical skills. Mrs Brewer's
evidence, which I have accepted, was that she made
it clear to Mr Mann that she wanted a 1930 Speed
Six engine for investment, historical and emotional
reasons. It was therefore an integral part of the
description that she relied on that the car's engine
was a Speed Six engine, albeit a replacement Speed
Six engine, that had been installed into the car
in 1930 by the Cricklewood works subsequent to its
first delivery earlier that year and which had thereafter
retained the essential features of that original
engine despite a rebuilding of the car in 1979 �
1980 with the necessitous use of some new parts.</s> | 1,478 |
<s>[INST] What event is described in the following response? [/INST]
The generic description
of the car as a 'Speed Six car' was sufficient to
describe either type of car. Thus, given the buyer's
wishes that had been communicated to the seller,
the contract description that was provided could
only have been complied with if the engine was an
original Speed Six. For the seller to avoid liability,
the description would have had to have referred
expressly to the replacement engine-type actually
in the car and also to have described the physical
changes that had occurred to that engine and its
current performance capabilities by reference to
a defined specification and the tests that had been
carried out to prove those capabilities.</s> | 1,479 |
<s>[INST] What details can you share about the following response? [/INST]
Continuous
history documentation. These considerations
show why the continuous history documentation of
a Speed Six is so important. In this case, the car
was subject, as is now known, to two significant
features that made it essential for the description
to be much more detailed than that the car was a
Speed Six car. These features were that the engine
was not a Speed Six engine and the only surviving
part of the original car was a small section of
the chassis. However, there was a lack of a continuous
history for the years between 1930 and 1981 even
though, during that period, the car had been completely
reconstructed. Thus, there was no way that the car
could be authenticated as a Speed Six or, indeed
as a vintage Bentley. In consequence, it was particularly
important that the contractual description accurately
described all the significant changes that had occurred
during the car's lifetime and that the seller found
some way in which to authenticate those changes
or stated in the description that they were not
capable of being supported by a continuous history.</s> | 1,480 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Conclusion
� sale by description. Thus, the
description for the purposes of the implied term
in all three contracts is to be considered to be
and to mean: "'a 1930 Bentley Speed Six Car' containing
a Speed Six engine". By necessary implication, that
description in the context of these contracts was
also stating that the car's chassis was 'a 1930
Speed Six chassis' and that the car had a continuous
history. I have already found that that phrase had
the same meaning as, or incorporated, the phrase
warranted by Mr Mann, namely that the car's engine
was a "Speed Six engine". There was a breach of
the various implied terms that the car conformed
to this description in that no part of the extended
description was complied with.</s> | 1,481 |
<s>[INST] What event is described in the following response? [/INST]
Mr Mann and
SMRL's liability - conclusion. There can
be no doubt, therefore, that Mr Mann, in relation
to the warranty given to Mrs Brewer, that SMRL,
in relation to both the warranty given to Mrs Brewer
and the two sale contracts entered into with Fortis
and Mrs Brewer and that Fortis, in relation to its
hire purchase and bailment obligations that it owed
to Mrs Brewer were in breach of their respective
contracts. The engine was not a Speed Six engine
and the original 1930 Speed Six car was so altered
that the only surviving piece of the car was less
than one third of the original chassis plus the
original chassis number and the car had no continuous
history. Thus, the car was no longer capable of
being accurately described as a "1930 Bentley Speed
Six Car".</s> | 1,482 |
<s>[INST] What is the main topic of the following response? [/INST]
The reasons why
the car could no longer be described in this way
may be summarised as follows:
(1) The 1930 Speed Six engine had been substituted
with a reconstructed 1927 standard 6�-litre engine.
(2) The changes that had been made to the 1927 engine
were not documented, the contents of the Speed Six
specification the engine was said to satisfy had
not been identified and no formal check or certification
of the engine's compliance with the performance
specification relied on had ever been undertaken.
Moreover, the evidence showed that the performance
parts of the BDC 1930 Speed Six specification were
not capable of being satisfied by the engine that
was currently in the car.
(3) The chassis was, to a very significant extent,
different from and constructed to a different specification
from, the original 1930 chassis.
(4) There was no continuous history available for
the car or its chassis, its 1927 Standard engine,
the reconstruction of its 1927 engine and 1930 chassis
or the racing characteristics and Speed Six performance
capabilities that it was said to have been provided
with.</s> | 1,483 |
<s>[INST] What is the main topic of the following response? [/INST]
The only accurate
description that the car could have been provided
with would have been one that explained in detail
all four of these changed aspects of the car. Alternatively,
these aspects would have had to have been listed
in a schedule and the description would have had
to have referred to the contents of that schedule.</s> | 1,484 |
<s>[INST] What event is described in the following response? [/INST]
Mr Mann's
and SMRL's defence - conclusion. The
only reason why Mr Mann persisted in describing
the car as a 1930 Speed Six was because he, supported
by Mr Fenn, insisted that once a chassis had been
incorporated into the car with a Speed Six chassis
number, any car thereafter that incorporated the
same chassis number was to be regarded as a Speed
Six car. This approach to describing the car was
said to have been confirmed by the fact that the
DVLA had been prepared to re-register the car with
its 1930 Speed Six registration number and the BDC
and other European vintage car clubs would classify
the car as a Speed Six car.</s> | 1,485 |
<s>[INST] What is the main topic of the following response? [/INST]
The difficulty
with that approach is that it means that the car,
although reconstructed with an engine which is a
Standard 6�-litre engine in design and with a chassis
which now contains little more than the original
chassis number from the original car and with no
continuous history, is still correctly described
as 'a Speed Six car'.</s> | 1,486 |
<s>[INST] What is the main topic of the following response? [/INST]
It is, of course,
for the BDC, other vintage car clubs and the DVLA
to decide how they will categorise a vintage car
for their own particular purposes. Those descriptions
or categorisations are not, however, definitive
in relation to how a car should be described in
a contractual description of the car for the purposes
of the Sale of Goods Act or the statutory provisions
dealing with bailment by description. Thus, although
Mr Fenn's repeated insistence that the car is a
Speed Six may be correct if the description of the
car is being considered purely from the standpoint
of the BDC, it is wholly incorrect for the purposes
of the Sale of Goods Act or for a bailment by description
since the necessary contractual description must
describe the car factually and accurately in a way
that encapsulates the car that the seller is purporting
to sell and the buyer has agreed to buy. As a result,
a Speed Six's contractual description will usually
need to be very different from and much more detailed
than the generic description promoted by Mr Mann
and Mr Fenn in reliance on the BDC method of categorising
vintage Bentleys.</s> | 1,487 |
<s>[INST] What event is described in the following response? [/INST]
Fortis' liability
� bailment by description. It was
contended on behalf of Fortis by its counsel Mr
Brant that the bailment of the car to Mrs Brewer
was not a bailment by description at all so that
any non-conformity with the words "1930 Speed Six
Bentley Car" was not actionable. This was because
Mrs Brewer had provided this description to Fortis
who had never had possession of the car. Counsel
contended that these facts evidenced the underlying
reality of the transaction which was that Mrs Brewer
did not rely on this description to enter into the
hire purchase agreement.</s> | 1,488 |
<s>[INST] What is the main topic of the following response? [/INST]
It is factually
incorrect to assert that Mrs Brewer provided the
description of the car to Fortis. In fact, Mr Mann
chose that description himself and provided it to
Mr Hardiman who inserted it into the draft hire
purchase agreement which he asked Mrs Brewer to
sign before forwarding the draft to Fortis for its
signature. Mrs Brewer had relied on that description
to enter into the hire purchase agreement and that
agreement itself had been procured by Mr Mann. Moreover,
Fortis agreed the terms of the proposed agreement
before signing it and, in doing so, relied on two
separate valuations of the car that it was provided
which both described the car as a 1930 Speed Six
Bentley.</s> | 1,489 |
<s>[INST] What event is described in the following response? [/INST]
Mr Brant also contended
that it was not credible that Mrs Brewer had relied
on the description "Bentley Speed Six car" when
deciding to enter into the hire purchase agreement.
However, as Mr Brant accepted, it is rare for a
hire purchase agreement not to be subject to a contractual
description of the subject-matter of the agreement.
This is because it is necessary to describe goods
that are being hired or leased. Thus, since hire
purchase agreements usually include a contractual
description of the goods being bailed or hired which
will often have been provided by or on behalf of
the hirer prior to the underlying sale to the finance
company, it is clearly not fatal to the creation
of a contractual description in a bailment contract
that the description was provided by or on behalf
of Mrs Brewer as bailee, even if she provided the
description. In any case, as I have already found,
Fortis approved the description since it relied
on two valuations of the car in deciding whether
or not to finance the purchase of the car which
both referred to the car as a 1930 Speed Six. I
therefore reject Mr Brant's submission.</s> | 1,490 |
<s>[INST] What event is described in the following response? [/INST]
Clause 5.1
� prevention or exclusion of liability.
Fortis contends that the term of the agreement
that gives rise to the contractual description relied
on by Mrs Brewer does not take effect as a contractual
description as a result of clause 5.1 of the agreement.
This reads as follows:
"In view of the terms of the customer's declaration
in the Schedule and Clauses 1.4, 1.5 and 3.1 and
the fact that the goods have only been acquired
by the Owner at the Customer's request to enable
it to enter into this agreement with the Customer,
the Customer agrees:-
1. That (apart from any of the following which have
been expressly given to the Owner itself to the
customer in writing) no condition, warranty, stipulation
or representation whatsoever of any kind has been
given by the Owner, its servants or agents in relation
to the goods (other than a warranty that the Owner
will pass to the customer upon exercise by the customer
of the rights conferred on it by Clauses 4.1, 4.3
or 8.1 such title to the goods as the manufacturer
or supplier pass to it);
2. That all implied conditions, warranties, stipulations
and representations relating to the goods, whether
statutory, collateral hereto, at common law or otherwise
and whether relating to their capacity, age, quality,
description, state, condition or use, or to their
satisfactory quality or suitability or fitness for
a particular or any purpose are hereby excluded
and extinguished except (i) as regards any liability
which may be implied on the Owner in respect of
death or personal injury resulting from the Owner's
negligence and (ii) any warranty implied by law
that (subject to the provisions of this agreement)
the Owner will not interfere with the Customer's
quiet possession of the goods; ...".</s> | 1,491 |
<s>[INST] What event is described in the following response? [/INST]
Mr Brant contended
that this provision had the effect that the contractual
description of the car as a "1930 Bentley Speed
Six Car" was a "condition, warranty, stipulation
or representation whatsoever of any kind" that had
been given by the Owner, its servants or agents
in relation to the goods. Thus, Fortis had not given
that condition, warranty, stipulation or representation
and could not be liable for the misdescription it
contained.</s> | 1,492 |
<s>[INST] Who are the main participants in the following event? [/INST]
However, contrary
to Mr Brant's submission, clause 5.1 of the hire
purchase agreement does not exclude the hire being
by description. This is because the description
in this case is not provided by Fortis as a contractual
condition, warranty, stipulation or representation.
The description is provided as an express term of
the contract which Fortis approved. Thus, clause
5.1 does not extend to this provision and is not
applicable to this term.</s> | 1,493 |
<s>[INST] What is the main topic of the following response? [/INST]
The only way that
clause 5.1 could be applicable would be as a means
of excluding Fortis's liability arising from its
breach of the implied term requiring the car being
bailed to conform with the express contractual description
of the car. However, if clause 5.1 is relied on
in this way so as to exclude liability for a breach
of this particular implied term, that exclusion
would itself be excluded by section 6(2) of the
Unfair Contracts Terms Act 1977. That section, in
consumer contracts such as this hire purchase agreement,
prohibits the exclusion or restriction of liability
that has arisen from implied terms such as the term
requiring the car to conform to its description.</s> | 1,494 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Thus, clause 5.1
does not prevent the contractual description taking
effect nor does it exclude liability arising from
a breach of an implied term requiring the car to
conform to that contractual description.</s> | 1,495 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Overall conclusion
� hire purchase agreement bailment by description.
Mrs Brewer relied on a description within the
hire purchase agreement to enter into that agreement.
She had not provided that description, it had been
provided to Fortis by the seller of the car to Fortis
when Mr Mann's description of the car was adopted
by Mr Hardiman when he filled out Fortis's contractual
form for signature by Mrs Brewer prior to its being
forwarded to Fortis who had then approved and signed
it. In those circumstances, this was a bailment
by description. Thus, Mrs Brewer may rely on any
breach of section 9 of the Supply of Goods (Implied
Terms) Act 1973 that occurred in consequence of
that description being erroneous. That liability
is not excluded by Section 5.1 of the hire purchase
agreement.</s> | 1,496 |
<s>[INST] What details can you share about the following response? [/INST]
Overall conclusion
- liability. Mr Mann was in breach
of his contractual warranty provided to Mrs Brewer
that the car was a Speed Six and that the engine
was a Speed Six engine both personally and as the
agent of an undisclosed principal; SMRL was in breach
of its contracts with both Mrs Brewer and Fortis
that the car was a 1930 Speed Six and Fortis was
in breach of its bailment by description contained
within the hire purchase agreement that the car
was a 1930 Speed Six.
F. Mrs Brewer's entitlement to reject the car
and rescind the Hire Purchase Agreement</s> | 1,497 |
<s>[INST] What details can you share about the following response? [/INST]
Factual background.
Mrs Brewer has potentially three remedies against
Fortis arising from its breach of the implied term
that the car should comply with its description.
These are the right to reject the car, the right
to rescind the hire purchase agreement and the right
to damages.</s> | 1,498 |
<s>[INST] Who are the main participants in the following event? [/INST]
These remedies
must be considered against the relevant contractual
background. This is that Mrs Brewer had taken possession
of the car on 7 June 2007 and she had subsequently
fallen into arrears with her hire purchase payments
and was four payments in arrears without Fortis
having threatened to retake the car or otherwise
sought recovery of her arrears. Mrs Brewer had the
resources to pay off these arrears but she was concerned
to reduce the overall level of her financial commitments
following the collapse of the world's financial
markets in late 2007 and the consequent recession.
She therefore considered it prudent to have the
car valued so as to see what sum it would fetch
at auction if it was placed on the market with a
view to offering the car back to Fortis for auction.
She arranged for the car to be valued by her friend
Mr Gilbertson at Bonham's. That valuation revealed
to her for the first time that the car did not have
a 1930 Speed Six engine. She received this valuation
on about 5 August 2008 and it revealed to her for
the first time that the car did not have a 1930
Speed Six engine.</s> | 1,499 |
<s>[INST] What is the main topic of the following response? [/INST]
Mrs Brewer immediately
took legal advice and then notified Fortis of her
discovery and that she wished to make a claim against
Mr Mann based on what she considered to be his breach
of warranty in describing the car as having a Speed
Six engine. Since she had been advised that she
should not make any further payments to Fortis until
her claim had been accepted, so as not to prejudice
her claim against Fortis for breach of the implied
term that the car did not conform to its description,
she therefore asked Fortis for temporary forbearance
whilst she negotiated her claim with Mr Mann. At
the same time, Mrs Brewer wrote to SMRL requesting
it, amongst other things: "with the consent of the
Lender to take the Bentley back".</s> | 1,500 |
<s>[INST] What is the main topic of the following response? [/INST]
Fortis did not
respond to Mrs Brewer's request. Instead, by return
in a notice dated 7 August 2008, it gave her notice
terminating the agreement and requiring her to return
the car to Fortis, basing this notification on her
arrears. Mrs Brewer returned the car to Fortis.
SMRL bought the car back from Fortis for �425,000.
Mrs Brewer gave notice to Fortis dated 14 August
2008 rejecting the car on account of Fortis's breach
of contract in bailing the car to her in breach
of the implied term that it should comply with its
description.</s> | 1,501 |
<s>[INST] What details can you share about the following response? [/INST]
Mrs Brewis's
right to reject. It was contended
on behalf of Fortis that Mrs Brewer had lost the
right to reject the car since clause 2 of the agreement
provided that she had accepted the car on its being
delivered to herself. There are, however, two answers
to that submission.</s> | 1,502 |
<s>[INST] What event is described in the following response? [/INST]
The first answer
to Fortis's contention that Mrs Brewer has lost
the right to reject is provided by section 13(1)(b)
of the Unfair Contract Terms Act 1977 which renders
void any contractual provision that excludes or
restricts the bailee's contractual rights such as
her right to reject the car. Mrs Brewer's right
to reject has been restricted by clause 2 since
that clause has the effect of her being presumed
to have accepted the car even when, as in this case,
she had not in fact accepted it. Instead of accepting
the car, which would have involved her in inspecting
the car or having it inspected to satisfy herself
that she was accepting the car in its proffered
state, she relied on Mr Mann's contractual warranty
and his written and verbal misrepresentations that
the car contained a Speed Six engine that in performance
satisfied the Speed Six specification. Thus, Mrs
Brewer's right to reject has not been lost notwithstanding
the contractual provision that she was to be presumed
to have accepted the car when it was delivered to
her.</s> | 1,503 |
<s>[INST] Who are the main participants in the following event? [/INST]
The second answer
to Fortis's contention is that the right to reject
cannot be lost until the hirer, in this case Mrs
Brewer, has had a reasonable opportunity to ascertain
the existence of the breach and has then, by word
or conduct, affirmed the contract. In this case,
given Mr Mann's contractual warranty that the engine
was a Speed Six engine the misrepresentations about
the car and about its continuous history, it was
reasonable that Mrs Brewer did not otherwise investigate
the provenance of the engine and the repairs that
had been undertaken to the car to satisfy herself
that the car corresponded to its description. The
first reasonable opportunity she had to discover
that there was a misdescription of the car occurred
when she received Bonham's valuation report dated
5 August 2008 which drew attention to the fact that
the engine was not a Speed Six engine and was instead
a 1927 Standard 6�-litre engine. Thus, Mrs Brewer
had not lost the right to reject the car or to rescind
the agreement when Fortis purported to determine
the agreement and retake possession of the car.</s> | 1,504 |
<s>[INST] What details can you share about the following response? [/INST]
Fortis also contends
that Mrs Brewer did not have the right to reject
the car because she had purported to exercise that
right on the grounds of misdescription when she
was in fact attempting to get out of the hire purchase
agreement on financial grounds since she was in
arrears with her payments and was unable to afford
to carry on with the hire purchase of the car.</s> | 1,505 |
<s>[INST] What event is described in the following response? [/INST]
I reject this submission
on the facts of this case. Although Mrs Brewer had
fallen behind with her payments, she had the funds
available to pay the arrears and was intending to
pay them. At that point, she discovered that there
had been a serious misdescription of the car with
a consequent breach of contract by Fortis. Instead
of paying off the arrears, Mrs Brewer, on legal
advice, notified Fortis of its breach of the implied
term that the car should conform to its description
and asked Fortis to suspend its entitlement to payment
for a short period whilst she attempted to negotiate
a settlement with Mr Mann and SMRL. Fortis impliedly
rejected that request by immediately terminating
the agreement. Fortis's clear and obvious reason
for serving notice of termination was as a response
to Mrs Brewer's notification of its breach of contract
and in an attempt to forestall the likely claim
against it that had just been notified of by Mrs
Brewer. At the date on which Fortis gave notice
of termination, Mrs Brewer was unable, on the basis
of the legal advice she had received, to pay off
the arrears since that act would have amounted to
a waiver of her right to reject the car, to rescind
the agreement and to claim damages from Fortis or
SMRL on the grounds of misdescription. Thus, Mrs
Brewer had not repudiated the agreement on account
of non-payment and Fortis terminated the agreement
for tactical reasons in an attempt to avoid a claim
arising from its alleged breach of contract arising
from the apparent non-conformity of the car to its
contractual description.</s> | 1,506 |
<s>[INST] What details can you share about the following response? [/INST]
Moreover, the submission
that Mrs Brewer had lost the right to reject is
irrelevant to her current claim. This is because
she is claiming damages from Fortis and is not claiming
the right to reject the car nor to rescind the agreement.
This is because Fortis retook the car and Mr Mann
and SMRL then agreed with Fortis that SMRL would
repurchase it from Fortis and have now done so.
In consequence, Mrs Brewer is confining her claim
to one for damages for breach of warranty and of
the implied term that the car should conform to
its contractual description. These damages are her
outstanding and unrecovered loss resulting from
the misdescription following the repurchase of the
car by SMRL.</s> | 1,507 |
<s>[INST] What event is described in the following response? [/INST]
Conclusion
� right to reject. Mrs Brewer had
not accepted the car and if clause 2 of the agreement
has the effect of her having to be presumed to have
accepted it, that presumption has no effect as a
result of section 13 of UCTA. She remained entitled
to reject the car at the time it was retaken and
she sought to reject it on the grounds of its non
conformity with its contractual description. This
was not a tactical move on her part that was intended
to allow her to avoid her financial difficulties.
Instead, Fortis's purported termination on the grounds
of Mrs Brewer's arrears was itself a tactical move
which had been taken in an attempt to forestall
Mrs Brewer's notified claim against it based on
that misdescription. Overall, however, although
Mrs Brewer still retained the right to reject the
car, her claim is not dependent on that right but
is one that is confined to a claim for damages.
G. Mrs Brewer's claims for damages and Fortis's
counterclaim for damages
(1) Mrs Brewer's claim against Mr Mann and
SMRL</s> | 1,508 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Mrs Brewer claims
damages arising from the breach of Mr Mann's contractual
warranty from both Mr Mann and from SMRL and, in
the case of SMRL, she also claims in the alternative
damages for breach of the implied term that the
car should conform to its description. Each of these
claims is for the recovery of her lost deposit,
for the instalments already paid and for an indemnity
against any outstanding liability that she might
have to Fortis. These losses are ones that flow
naturally from the breach of both the warranty and
the implied condition and are clearly foreseeable.
They therefore all fall and within the first limb
of the recoverability rules provided for by Hadley
v Baxendale [14]. Mrs Brewer may claim these damages
since they represent her direct loss flowing naturally
from the breach of both the warranty and the implied
condition of her sale contract with SMRL. This loss
is one that arises directly from her having entered
into the hire purchase agreement and the contract
of sale with SMRL since, but for the breach, she
would not have entered into either contract and
would not have expended anything on the car.</s> | 1,509 |
<s>[INST] What event is described in the following response? [/INST]
Mrs Brewer's claim
is for so-called reliance damages, being the losses
incurred by an innocent party who has entered into
a contract which has proved to be futile because,
in reliance on an erroneous contractual warranty,
that contract was substantially different from the
contract that had been warranted. Mr Mann's warranty
that the engine was a Speed Six engine and his description
of the car as a 1930 Speed Six car related to a
car which was significantly different car to the
car that was delivered to Mrs Brewer.</s> | 1,510 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Mrs Brewer's claim
is similar to the claim which was held to be recoverable
in Yeoman Credit Ltd v Odgers [15] with these words:
"Here we are not dealing with a breach of warranty
on a sale where the purchaser can sell an unsuitable
article at its diminished value and where, therefore,
he is adequately compensated if he receives as damages
the diminution in value. In the present case the
hire-purchase agreement was the purpose and the
product of the warranty. To assess the damage, one
has to consider the difference between the defendant's
position if he had entered into such an agreement
in respect of a car as warranted and his position
when he has entered into it in respect of a persistently
and, as it seems, incurably, unroadworthy car. The
difficulty with regard to the return or retaking
of the car was clearly foreseeable and the loss
under the agreement was loss directly and naturally
resulting from the breach of warranty. That loss
includes the wasted instalments and the amounts
payable under clause 8. Therefore the judge was
entitled to hold as he did."</s> | 1,511 |
<s>[INST] What is the main topic of the following response? [/INST]
Conclusion
� Mrs Brewer's claims for damages. Mrs Brewer
is entitled to both heads of damages as claimed
by her and is also entitled to an indemnity from
both Mr Mann and SMRL against any outstanding liability
she might have to Fortis.
(2) Fortis's counterclaim against Mrs Brewer</s> | 1,512 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Fortis claims the
outstanding arrears that had accrued before it purported
to terminate the agreement and also damages to compensate
it for the non-recovery of the hire that would have
been recovered had the agreement not been terminated.
The claim for arrears is a contractual claim for
sums that had accrued due under the contract. The
claim for future losses is claimed in this way:
(1) The agreement was terminated by Fortis by reason
of Mrs Brewer's breach of the condition requiring
prompt payment of the instalments pursuant to clause
2.1 of the contract;
(2) This non payment of contractual instalments
constituted a repudiatory breach of the agreement
by Mrs Brewer by virtue of clause 8.2.1 which entitled
Fortis to terminate on those grounds; and
(3) Following a termination on account of Mrs Brewer's
repudiation, Fortis may claim damages quantified
in the manner set out in clause 9.4 of the agreement
which provides a contractual basis for quantifying
loss of future hire following termination for non-payment
and the retaking of the car.
(4) Fortis never made a clear and unequivocal demand
for contractual damages under clause 9.4 of the
hire purchase agreement flowing from its retaking
of the car due to arrears.</s> | 1,513 |
<s>[INST] What is the main topic of the following response? [/INST]
Mrs Brewer's response,
which I accept and apply, successfully refutes Fortis's
counterclaim on the following five cumulative grounds:
(1) She has no outstanding liability to pay the
outstanding hire charges because Fortis had no right
to terminate for non-payment of hire[16]. Moreover, Mrs Brewer may recover back any recovery of these
charges as damages flowing from Fortis's misdescription
so that the claim fails either because it is eliminated
by Mrs Brewer's cross-claim or by the defence open
to Mrs Brewer of circuity of action.
(2) Fortis did not purport to terminate the agreement
on the ground that Mrs Brewer had repudiated it
as a result of her non-payment and has not claimed
damages based on her repudiation. This is because
Fortis did not purport to rely on clause 8 or refer
to it in its termination notice when terminating
the agreement and reliance on clause 8 cannot be
inferred or presumed.
(3) Mrs Brewer did not, in any event, repudiate
the agreement[17].
(4) Fortis's claim is based on an entitlement to
claim sums pursuant to clause 9.4 of the contract
but no correctly formulated demand has ever been
made for payment under that clause and a correctly
formulated written demand for payment is a condition
precedent to such payment. It is not sufficient
for a mere demand for payment to have been made,
the necessary demand must be for a precise sum calculated
in accordance with clause 9.4 of the agreement.
Fortis have not pleaded that such a demand, or any
demand, was made and no such demand was proved to
have been made.</s> | 1,514 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Conclusion
� Fortis's counterclaim. Fortis has no entitlement
to counterclaim the arrears of hire outstanding
at the date it purported to terminate the agreement
nor to damages for future loss of hire recovery.
(3) Mrs Brewer's claim against Fortis</s> | 1,515 |
<s>[INST] What details can you share about the following response? [/INST]
Mrs Brewer is entitled
to repayment by Fortis of all hire payments that
she has previously paid since she was entitled to
rescind the contract and such payments are recoverable
as reliance damages in accordance with the principle
identified in Yeoman Credit Ltd [18].
(4) Credit for use of the car during the period
of hire</s> | 1,516 |
<s>[INST] What event is described in the following response? [/INST]
The final issue
that I must decide is whether Mrs Brewer has to
give credit for the use of the car in the period
between her taking delivery of it and the date of
the purported termination of the hire purchase agreement
by Fortis. All three defendants claim that she should
provide a credit for her use and enjoyment of the
car as an off-set against the damages she would
otherwise recover from each of them. These are restitutionary
claims that are based on her enjoyment and use of
the car in that period. They are not based on any
diminution in the value of the car in the period
that she possessed it or on any damage or wear and
tear to the car that occurred in that period.</s> | 1,517 |
<s>[INST] What event is described in the following response? [/INST]
Before considering
these claims, it is first necessary to consider
again the basis of Mrs Brewer's claim against each
defendant against which these claims are sought
to be off-set. Her claims are for damages for breach
of warranty in circumstances in which she was entitled
to rescind the two contracts and to reject the car.
There is no basis for setting up a restitutionary
claim for compensation for her use and enjoyment
of the car as an off-set to her claims for damages.</s> | 1,518 |
<s>[INST] What details can you share about the following response? [/INST]
There might have
been a basis for a claim for wear and tear, damage
to the car during its use or for a share in any
tangible benefit obtained from its use but no such
claim has been pleaded or proved. Furthermore, given
the limited use made of the car by Mrs Brewer whilst
it was in her possession and its inherent value
as a reconstructed vintage Speed Six, it did not
lose any value in that period. Any payment for use
and enjoyment that should be made by Mrs Brewer
is provided for by the payment provisions of the
agreement but those have been repaid to Mrs Brewer
due to Fortis's and SMRL's respective breaches.
Moreover, Mrs Brewer is entitled to full recovery
of her outlay under the hire purchase and sale contracts
from Mr Mann as damages for breach of warranty and
from Fortis and SMRL for breach of the obligation
to supply a car that conformed to its description.</s> | 1,519 |
<s>[INST] What event is described in the following response? [/INST]
Conclusion
� restitutionary counterclaims. It
follows that no restitutionary claim arises and
Mrs Brewer need not provide any off-set for her
use and enjoyment of the car or on any other basis.
H. Procedural Questions</s> | 1,520 |
<s>[INST] What is the main topic of the following response? [/INST]
Joinder of
SMRL. During the trial, I ruled that
SMRL could and should be joined as a third defendant.
This was because:
(1) All issues that were already in play in Mrs
Brewer's proceedings against Mr Mann and Fortis
were also raised in Mrs Brewer's proposed claim
against SMRL and no additional issues would arise
if SMRL was joined into Mrs Brewer's claims,
(2) There was no discernible prejudice to SMRL since
its defence was the same as Mr Mann's defence which
had already been fully prepared;
(3) There was no discernible prejudice to Fortis
who was already a party to the action and it could
readily have joined SMRL as a third party to enable
it to claim an indemnity from SMRL;
(4) Throughout the dispute SMRL had been, and would
continue to be, represented by the same legal team
as was representing Mr Mann;
(5) It had only become apparent at a late stage
that SMRL did not own the car and had had no title
to it when it sold the car to Mrs Brewer; and
(6) It was proportionate to allow that course to
be taken at such a late stage to avoid the real
possibility of further proceedings having to be
taken against SMRL by Fortis following the conclusion
of the trial.</s> | 1,521 |
<s>[INST] Who are the main participants in the following event? [/INST]
Joinder of
SMRL to the third party proceedings.
For the same reasons as have resulted in SMRL being
joined as a party, it is fair and reasonable that
Fortis should be entitled to join SMRL as a third
party and to plead a third party contribution or
indemnity claim against it.
I. Overall Conclusion</s> | 1,522 |
<s>[INST] What details can you share about the following response? [/INST]
Principal
findings. The principal findings
are as follows:
(1) (a) Mr Sibson had inspected and measured the
chassis very carefully and had concluded that the
only surviving section from the original 1930 chassis
was part of the small front section.
(b) He also concluded that the engine could not
be described as satisfying the 1930 Speed Six specification
since its performance had never been properly tested
or verified and its outward appearance, particularly
its new pistons, suggested that it had never been
capable of generating the power that would have
been needed to satisfy the performance requirements
of that specification (paragraph 32).
(c) Overall, Mr Sibson contended that the car could
not be described as a Speed Six and the engine could
not be described as either a Speed Six engine or
as one which was to Speed Six specification, whereas
Mr Fenn contended that the car was a Speed Six car
whose engine was to Speed Six specification. On
all three of these issues Mr Sibson's evidence was
accepted (paragraph 34).
(2) The terminology used for vintage Bentleys including
Speed Sixes varies but conventionally the term "restored"
usually refers to the restoration of original parts
and "rebuilt" to the taking apart and putting back
together again of a car predominantly using original
parts from the original car (paragraph 45). There
is no generally accepted term that describes the
use of a substantial part, particularly the engine,
which has been transformed from its original place
in one model to resemble and be placed in another
model. (paragraph 46). I have adopted the word "reconstructed"
to describe this substantial process of change since
it is a fundamentally different process to that
of "rebuilding" a Speed Six car (paragraph 47).
(3) It is clear that everyone involved with Speed
Sixes now regard it as essential, for such a car
to be properly described as a Speed Six, to be accompanied
by a continuous history, being a full, unbroken
and authentic set of documents which identify in
a reliable manner who has owned the car, the uses
that it has been put to and a description of its
service history and any restoration, rebuilding
or reconstruction work that the car has experienced
throughout its life since originally leaving the
Cricklewood works. The evidence suggested that this
view arose, or was at least confirmed, as a custom
of the Speed Six trade by Otton J's judgment in
1990 in Hubbard v Middlebridge Scimitar Limited[19]. This "Old Number One" judgment is certainly widely known to,
and relied on by, enthusiasts, owners, dealers,
auctioneers and valuers involved with Speed Sixes
(paragraph 55).
(4) A specification has since been compiled retrospectively
for the Speed Six and Standard 6�-litre engine types
by the BDC. This specification was accepted at the
trial as being the relevant specification against
which the car's engine should be compared and, by
inference, was the specification that Mr Mann claimed
in evidence to have referred to in his discussions
with Mrs Brewer as the "Speed Six specification"
(paragraph 58).
(5) Part of the front section of the chassis and
its attached chassis number is the only surviving
part of the 1930 Speed Six car that had originally
been delivered to Miss Unwin in February 1930(paragraph
77).
(6) The engine was a standard engine when it arrived
in Mr Mann's workshop and that he himself undertook
the conversion work between 1979 and 1980 which
he stated must have been undertaken in South Africa
(paragraph 82).
(7) Mr Mann's implied representation to the Brewers
that the car had a continuous history as a 1930
Speed Six car was obviously false (paragraph 90).
(8) the car was not satisfactorily tested in 2009
and that such test results as were claimed to have
been undertaken apparently showed that the engine
under load displayed significant non-compliance
with the BDC's 1930 Speed Six specification (paragraph
93).
(9) Whatever the value of a 1930 Speed Six might
be at any one time, it will be appreciably higher
than the corresponding value of a reconstructed
Speed Six with a reconstructed 1927 Standard 6�-litre
engine a reconstructed 1930 chassis with no relevant
continuous history and with no verified and authenticated
ability to satisfy any relevant 1930 Speed Six specification
(paragraph 96).
(10) The car lacked a continuous history for the
entire period between 1930 and 1981 and any authenticated
documents proving that history in that period. No
such documents were provided to Mrs Brewer (paragraph
98).
(11) The pre-contract representations in the advertising
material inaccurately and misleadingly conveyed
the meaning to an informed reader such as Mrs Brewer
that the car retained its original Speed Six engine
and chassis which had been rebuilt but which still
survived as a Speed Six engine with a proved capability
of satisfying all aspects of the Speed Six specification.
These representations were reinforced and confirmed
by the absence of any reference in any of the documents
to the fact that the engine was a Standard 1927
6�-litre engine and that the chassis had been significantly
reconstructed so as to resemble a Speed Six chassis
that satisfied the Speed Six chassis specification
(paragraph 108).
(12) In relation to the collateral contractual warranty:
(1) Mr Mann stated unequivocally that the engine
was a Speed Six engine;
(2) Mr Mann did not make any reference to the engine
being to Speed Six specification;
(3) If Mr Mann used the phrase "to Speed Six specification"
this would reasonably have been taken to have been
a reference to an original 1930 Speed Six engine
that had been renovated to Speed Six Specification
and that phrase would have been an erroneous misrepresentation;
and
(4) The statement "the engine is a Speed Six engine",
in its context, amounted to a collateral warranty
whose consideration was provided by Mrs Brewer's
reliance on that statement to conclude her contracts
with Fortis to hire, and with SMRL to buy, the car
(paragraph 131).
(13) Mr Mann is personally liable to Mrs Brewer
and, in addition, is liable to her as the agent
of SMRL who was his undisclosed principal. Furthermore,
SMRL is separately and severally liable for any
breach of warranty. SMRL's additional liability
for any such breach was established at the trial
since its counsel accepted on its behalf that it
would be liable to Mrs Brewer if and to the extent
that any breach of warranty was established (paragraph
137).
(14) The description contained in the sale contract
must be subject to, and read together with, that
contractual warranty. This description must also
be read together with the same contractual description
that was contained in the hire purchase agreement
and the sale contract between SMRL and Fortis. Mr
Mann had drafted and inserted this description in
these other contracts and they were clearly intended
by Mrs Brewer, SMRL and Fortis to be interlinked
and to take effect together with SMRL's contract
with Mrs Brewer (paragraph 142).
(15) The description "One 1930 Bentley Speed Six
Car" in the sale contract from SMRL to Fortis and
in the hire purchase agreement between Fortis and
Mrs Brewer and "Bentley Car" in the contract between
SMRL and Mrs Brewer are contractual descriptions
which have the meaning: "a 1930 Speed Six Bentley
car containing a 1930 Speed Six engine and a 1930
Speed Six chassis" (paragraph 148).
(16) The description for the purposes of the implied
term in all three contracts is to be considered
to be and to mean: "'a 1930 Bentley Speed Six Car'
containing a Speed Six engine". By necessary implication,
that description in the context of this sale and
hire was also stating that the car's chassis was
'a 1930 Speed Six chassis' and that the car had
a continuous history (paragraph 160).
(17) The car was no longer capable of being accurately
described as a "1930 Bentley Speed Six Car". The
reasons why the car could no longer be described
in this way may be summarised as follows:
(1) The 1930 Speed Six engine had been substituted
with a reconstructed 1927 standard 6�-litre engine.
(2) The changes that had been made to the 1927 engine
were not documented, the contents of the Speed Six
specification the engine was said to satisfy had
not been identified and no formal check or certification
of the engine's compliance with the performance
specification relied on had ever been undertaken.
Moreover, the evidence showed that the performance
parts of the BDC 1930 Speed Six specification were
not capable of being satisfied by the engine that
was currently in the car.
(3) The chassis was, to a very significant extent,
different from and constructed to a different specification
from, the original 1930 chassis.
(4) There was no continuous history available for
the car or its chassis, its 1927 Standard engine,
the reconstruction of its 1927 engine and 1930 chassis
or the racing characteristics and Speed Six performance
capabilities that it was said to have been provided
with (paragraph 162).
(18) Mrs Brewer relied on a description within the
hire purchase agreement to enter into that agreement.
She had not provided that description, it had been
provided by the seller of the car to Fortis and
had then been approved by Fortis. In those circumstances,
this was a bailment by description. Thus, Mrs Brewer
may rely on any breach of section 9(1) of the Supply
of Goods (Implied Terms) Act 1973 that occurred
in consequence of that description being erroneous.
That liability is not excluded by Section 5.1 of
the hire purchase agreement (paragraph 175).
(19) Mr Mann was in breach of his contractual warranty
provided to Mrs Brewer that the car was a Speed
Six and that the engine was a Speed Six engine both
personally and as the agent of an undisclosed principal;
SMRL was in breach of its sale contracts with both
Mrs Brewer and Fortis that the car was a 1930 Speed
Six and Fortis was in breach of its bailment by
description contained within the hire purchase agreement
that the car was a 1930 Speed Six (paragraph 176).
(20) Mrs Brewer had not accepted the car and if
clause 2 of the agreement has the effect of her
having to be presumed to have accepted it, that
presumption has no effect as a result of section
13 of UCTA. She remained entitled to reject the
car at the time it was retaken and she sought to
reject it on the grounds of its non conformity with
its contractual description. This was not a tactical
move on her part that was intended to allow her
to avoid her financial difficulties. Instead, Fortis's
purported termination on the grounds of Mrs Brewer's
arrears was itself a tactical move which had been
taken in an attempt to forestall Mrs Brewer's notified
claim against it based on that misdescription. Overall,
however, although Mrs Brewer still retained the
right to reject the car, her claim is not dependent
on that right but is one that is confined to a claim
for damages (paragraph 187).
(21) Mrs Brewer is entitled to both heads of damages
as claimed by her and is also entitled to an indemnity
from both Mr Mann and SMRL against any outstanding
liability she might have to Fortis (paragraph 191).
(22) Fortis had no entitlement to counterclaim the
arrears of hire outstanding at the date it purported
to terminate the agreement nor to damages for future
loss of hire recovery at the date it purported to
terminate the agreement (paragraph 194).
(23) Mrs Brewer is entitled to repayment by Fortis
of all hire payments that she has previously paid
since she was entitled to rescind the contract and
such payments are recoverable as reliance damages
in accordance with the principle identified in
Yeoman Credit Ltd[20] (paragraph 195).
(24) It follows that no restitutionary claim arises
and Mrs Brewer need not provide any off-set for
her use and enjoyment of the car or on any other
basis (paragraph 199).
(25) For the same reasons as have resulted in SMRL
being joined as a party, it is fair and reasonable
that Fortis should be entitled to join SMRL as a
third party and to plead a third party contribution
or indemnity claim against it (paragraph 201).
(26) In the result, Mrs Brewer's claims succeed
against each defendant, Fortis's counterclaim fails
and Mrs Brewer is entitled to damages as claimed
against each defendant. (paragraph 204).</s> | 1,523 |
<s>[INST] Who are the main participants in the following event? [/INST]
Overall conclusion.
In the result, Mrs Brewer's claims succeed against
each defendant, Fortis's counterclaim fails and
Mrs Brewer is entitled to damages against each defendant.
HH Judge Anthony Thornton QC.</s> | 1,524 |
<s>[INST] What details can you share about the following response? [/INST]
Appendix I</s> | 1,525 |
<s>[INST] What event is described in the following response? [/INST]
The Case of Old Bentley Number One</s> | 1,526 |
<s>[INST] What event is described in the following response? [/INST]
HUBBARD vs. MIDDLEBRIDGE SCIMITAR
LIMITED</s> | 1,527 |
<s>[INST] What details can you share about the following response? [/INST]
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice, London.
No. 90/MJ/2474 - 27th July 1990</s> | 1,528 |
<s>[INST] What is the main topic of the following response? [/INST]
Before: MR. JUSTICE OTTON</s> | 1,529 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
Transcribed from the Official Tape
Recording by Cater Walsh & Co.,
6 Jelleyman Close, Blakebrook, Kidderminster DY11 6AD.
(Official Court Reporters and Tape Transcribers. )</s> | 1,530 |
<s>[INST] Who are the main participants in the following event? [/INST]
MR. M. ROSEN, instructed by Carter
Faber, London EC4Y 9AY, appeared on behalf of the plaintiff.
MR. R. SLOWE, instructed by Dibb Clegg, London WC2A
1NE, appeared on behalf of the defendant.</s> | 1,531 |
<s>[INST] What event is described in the following response? [/INST]
JUDGEMENT (As Revised)</s> | 1,532 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
MR. JUSTICE OTTON: In this action
the plaintiff, Edward Hubbard, seeks specific performance
of a contract entered into with the defendants, Middlebridge
Scimitar Limited, on 7th April 1990. The subject matter
of the agreement is what is said to be a Bentley Speed
6 Racing Car known as "Old Number One".</s> | 1,533 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
The plaintiff agreed to sell this car
for �10 million, in exchange for the assets of Middlebridge
Scimitar Limited valued at �3.2 million, plus
�6.8 million in cash. When the agreement was reduced
into or evidenced in writing the car was described as
"Bentley. Known as 'Old Number One'". The defendants
subsequently resiled from the deal when they suspected
the
authenticity of the car.</s> | 1,534 |
<s>[INST] What is the main topic of the following response? [/INST]
The plaintiff is 59 years of age and
has had a passionate interest in fast and prestigious
motor cars all his life. He has acquired a deep
and detailed knowledge of vintage Bentleys and since
that time he has owned 50 or more cars and has had one
of the largest collections of Bentleys in the world.
He had a private museum of classic motor cars at Radlett
in Hertfordshire, and an extensive library on the subject.
In separate premises in Watford he operates a company
(Duttons Limited) where he employs a substantial staff
to prepare and race a Formula 3 racing team to prepare
and race vintage and historic racing cars, and for the
purpose of restoring old racing cars. He still races
with Vintage Bentleys and is a member of the Bentley
Drivers Club.</s> | 1,535 |
<s>[INST] What details can you share about the following response? [/INST]
The defendants are a company formed
in May 1987. They are a subsidiary of Middlebridge Group
Limited. The Company and the Group carry on the business
of manufacture and sale of Scimitar cars. They also
have an interest in modern racing cars, having recently
acquired the well known Brabham Formula 1 racing team.
The Company are also engaged in restoration of classic
cars, i.e. cars produced some time after World War II.</s> | 1,536 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
The principal shareholder of the Group
is Mr. Kohji Nakauchi, from whose name in Japanese the
Group's name derives. He is clearly a wealthy industrialist
and a collector of important motor cars, particularly
of famous British marques. The chairman of the Company
and the Group is Mr. Dennis Nursey. He, too, has a keen
interest in motor cars, notably in the well known and
well loved Aston Martin marque. He has considerable
experience in the world of motor cars and in business.
His business interest have taken him to Japan and he
has the rare distinction of being able to speak Japanese.
He is clearly a most able and accomplished businessman
and "a bit of a go-getter". He is ambitious and talented.</s> | 1,537 |
<s>[INST] Who are the main participants in the following event? [/INST]
The managing director of the Group
and the Company is Mr. William McCormack. He has a history
of banking behind him and is considered to be the person
who looks after the financial side of both the Group
and the Company and acts as their accountant. He
is clearly articulate, intelligent and has experience
in dealing with contractual arrangements and, in particular,
with written contracts.</s> | 1,538 |
<s>[INST] What event is described in the following response? [/INST]
However, the principal character in
this action is not the larger than life Edward Hubbard
or the ambitious and thrusting Japanese speaking Dennis
Nursey. It is two tons of motor car referred to throughout
as Old Number One, and it is the integrity, provenance
and pedigree of this vehicle which have been under scrutiny.</s> | 1,539 |
<s>[INST] Who are the main participants in the following event? [/INST]
It was produced for my inspection in
Lincoln's Inn. It looked beautiful and the magic and
sheer power of its engine evoked excitement and nostalgic
memories of the past; but looks and sounds are not everything.
The defendants maintain that it is not worth to bear
the name Old Number One.</s> | 1,540 |
<s>[INST] What details can you share about the following response? [/INST]
Between 1921 and 1930 W.A. Bentley,
the founder of Bentley Motor Cars, took a passionate
interest in motor racing. To many, even today, motor
racing in the 20s and 30s was the Golden Era. The rapid
progress in mechanical engineering during and
after the first world war brought together a remarkable
fraternity of drivers, engineers, industrialists and
enthusiasts who all shared a passion for racing cars.
Drivers were legendary -- Captain Babe Barnato, Kitson,
Sammy Davies, Sir Henry Birkin, Clive and James Dunfee
to name a few of the "The Bentley Boys" as they were
known. Wally Hassan and Nobby Clarke and others were
the master mechanics and expert engineers who developed
the racing car to the limits of technology, science
and the state of the art of their day, and who had to
satisfy the insatiable demand of the drivers for ever
faster motor cars.</s> | 1,541 |
<s>[INST] Who are the main participants in the following event? [/INST]
They strove to be, and were, world
beaters particularly on two circuits -- Le Mans and
Brooklands.</s> | 1,542 |
<s>[INST] What details can you share about the following response? [/INST]
Origin</s> | 1,543 |
<s>[INST] Who are the main participants in the following event? [/INST]
The car, which was later to be known
as Old Number One, started life when it was selected
at random from the Standard Six production line in preparation
as the Bentley team entry for the 1929 Le Mans race.
At that stage it was technically known as a rolling
chassis, consisting of a chassis or chassis frame, an
engine, steering column, suspension and wheels. It bore
the chassis number LB2332 and the engine number LB2336.
It was taken to the racing shop where it was stripped
down and rebuilt to a higher specification by Wally
Hassan, the master mechanic, and others.</s> | 1,544 |
<s>[INST] Who are the main participants in the following event? [/INST]
It was the second Speed Six to be built.
It had a six cylinder, 6+ litre engine, with a non-detachable
head in the form of a conventional internal combustible
engine. The precise specifications to which the car
was built appears at pages 49 to 50 of Mr. Hay's authoritative
book: "Bentley, the Vintage Years 1919 - 1931".</s> | 1,545 |
<s>[INST] What details can you share about the following response? [/INST]
It was fitted with a four seater Van
den Plas open body. After the successes at Le Mans of
the 3 litre and 4+ litre cars, much was expected of
it. At Le Mans in 1927 the 3 litre Bentley had won at
a speed of 61.35 miles per hour. In 1928 in a 4+ litre
affectionately known as Old Mother Gun, Captain Barnato
with his co-driver Rubin had won at a speed of 69.11
miles per hour.</s> | 1,546 |
<s>[INST] Who are the main participants in the following event? [/INST]
On 24th April 1929 the car was registered
bearing the registration number MT 34484. The car that
I saw bears this registration number today.</s> | 1,547 |
<s>[INST] Who are the main participants in the following event? [/INST]
Racing History</s> | 1,548 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
The racing history of the car began
at Brooklands in the Double twelve race in 1929, so-called
because the race was run in two successive twelve hour
daylight periods. In the interval the cars were locked
up for the night. It did not complete the race, in circumstances
of some mystery but probably because it suffered from
a defective dynamo. In 1929 it entered the La Mans race
and because its engine capacity of 6+litres was the
largest in the field it was assigned the race number
of No. 1. It was driven by Captain Barnato and his co-driver
was Sir Henry Birkin.</s> | 1,549 |
<s>[INST] What event is described in the following response? [/INST]
At page 264 of Mr. Hay's book there
is a short description of the race as follows:</s> | 1,550 |
<s>[INST] What details can you share about the following response? [/INST]
"The Speed Six,
driven by Birkin, was first away on the flagfall and
apart from the problems with shifting ballast on
the Clement Chausan 4� litre and the retirement of the
Earl of Howe in No. 11 with magneto trouble, the
four Bentleys held the first four places virtually
from beginning to end. At one point the Chrysler of
Stoffel and Benoir reached third place but
gradually the American challenge faded and W.O. (I.e.
W.O. Bentley) reduced the speed of all cars to a fast
tour. W.O.'s policy of not showing the potential of
the cars irked the drivers. Jack Dunfee stopped at the
pits and said I say, W.O., do you want me to get out
and push the bloody thing? I've just stopped and
had a drink at the Hippodrome', and he had one too.
Shortly before 4 p.m. the cars slowed, formed up in
line astern and at flagfall the victorious team cruised
over the in finishing order: No.1, No.9, No.10, No.8,
all Bentleys."</s> | 1,551 |
<s>[INST] What event is described in the following response? [/INST]
Some cruise! The speed was 73.62 miles
per hour.</s> | 1,552 |
<s>[INST] What details can you share about the following response? [/INST]
The cars in those days were driven
back to England through France, via Paris, and one can
imagine the victorious scenes which greeted the cars
on their route back. They were driven by the engineers
and mechanics. When they arrived at Cricklewood they
were examined in length and depth.</s> | 1,553 |
<s>[INST] Can you provide details about the activities mentioned in the response? [/INST]
As Mr. Hay in his expert's report says,</s> | 1,554 |
<s>[INST] Who are the main participants in the following event? [/INST]
"It is important
to realize that racing cars are invariably changed during
their careers, to incorporate improvements and
modifications, and because of hard use and accidents.
This was effectively summarized by Nobby Clarke, head
of the racing shop 1926 - 1929 and team manager at La
Mans between 1926 - 1930 as follows
in 1974: One must realize that the international
reputation of the Company was at stake, and there had
to be no mistakes made, by me or anyone else in authority.
We therefore changed bits and pieces under racing conditions
which under normal conditions could have been allowed
to run on. Remember that once the starter's flag has
dropped, it is too late to think I wish that I'd
changed this or that'".</s> | 1,555 |
<s>[INST] What details can you share about the following response? [/INST]
The plaintiff's experts, Mr. Hay and
Mr. Guppy, with the aid of a remarkable series of photographs,
the Bentley stripping records and service records, have
been able to trace the way the car changed between each
race, often significantly. Bentley Motors incorporated
bits to latest specification when these were available.
The changes are largely non-contentious between the
parties and thus I can set them out in summary form.</s> | 1,556 |
<s>[INST] Who are the main participants in the following event? [/INST]
Within a matter of weeks after participating
in the Double Twelve race on 10th May, photographs taken
in June 1929 show the Van den Plas body cut away for
the driver's elbow was deepened. The body catches and
straps had been changed; the petrol tank bar at the
rear changed and Lucas headlamps substituted for Smiths.
The chassis fairings had been removed and the handbrake
changed to cable and adjuster pattern. It was essentially
in this form that it arrived at Le Mans where it is
noted that two horns had been added to the front. The
fishtail exhausts required to placate the residents
in the vicinity of Brooklands had been removed and a
straight-through exhaust system substituted. It was
in this form that it won the race at Le Mans.</s> | 1,557 |
<s>[INST] Who are the main participants in the following event? [/INST]
A fortnight later, on 29th June, it
was back at Brooklands for the 6 hours race. The back
axle internals had been renewed along with the exhaust
valves, and all the valves springs and rear drums. The
Smith headlamps had been refitted and the former bonnet
straps had again been changed. It won at 75.88 miles
per hour and suffered slight damage.</s> | 1,558 |
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