Wilberforce explicitly rejected Denning's application of the doctrine of fundamental breach and opted for a "rule of construction" approach. The"rule of law" theory which the Court of Appeal has adopted in the last decadeto defeat exclusion clauses is at first sight attractive in the simplicity of its logic.A fundamental breach is one which entitles the party not in default to elect toterminate the contract. They may. Whether Musgrove intended to light only a small fire or to burndown the factory, and what his motives were for what he did were found by thelearned trial judge to be mysteries which it was impossible to solve. The contract which falls to be consideredwas a contract for the rendering of services by the defendants ("Securicor") tothe plaintiffs ("the Factory Owners"). 3—"That"the question whether an exceptions clause was applicable where there was a"fundamental breach of contract was one of the true construction of the"contract". With respect, I disagree, however, with Wilson J. I agree with the speech of my noble and learned friend Lord Wilberforce,which I have had the advantage of reading in draft and to which I cannotusefully add anything. Any persons capable of making a contract are free to enter into any contractthey may choose: and providing the contract is not illegal or voidable, it isbinding upon them. This, and it is important to bear it in mind when considering the judgments inthe Court of Appeal, falls short of a finding that Musgrove deliberately burntor intended to burn the respondents' factory. Such a contract is the source of primary legal obligations uponeach party to it to procure that whatever he has promised will be done, is done. 2. The position now seems to be clear. Thesesecondary obligations of the contract breaker and any concomitant relief of theother party from his own primary obligations also arise by implication of law—generally common law, but sometimes statute, as in the case of codifyingStatutes passed at the turn of the century, notably the Sale of Goods Act 1893.The contract, however, is just as much the source of secondary obligations as itis of primary obligations; and like primary obligations that are implied by law,secondary obligations too can be modified by agreement between the parties,although, for reasons to be mentioned later, they cannot, in my view, be totallyexcluded. I am content to leave the matter there with some supplementary observa-tions. . Justice MacKenna of the 7th day of April 1976 be,and the same is hereby, Restored: And it is furtherOrdered, That the Respondents do pay or cause to bepaid to the said Appellants the Costs incurred by themin the Court of Appeal and also the Costs incurred bythem in respect of the said Appeal to this House, theamount of such last-mentioned Costs to be certified bythe Clerk of the Parliaments if not agreed between theparties: And it is also further Ordered, That the Causebe, and the same is hereby, remitted back to the Queen'sBench Division of the High Court of Justice to dotherein as shall be just and consistent with thisJudgment. Lord Wilberforce. MY LORDS, This appeal arises from the destruction by fire of the respondents' factoryinvolving loss and damage agreed to amount to £615,000. 863). “In our jurisdiction however, such contracts are purely governed by common law. In commercialcontracts negotiated between business-men capable of looking after their owninterests and of deciding how risks inherent in the performance of various kindsof contract can be most economically borne (generally by insurance), it is, in my. unless such act or default could have been foreseen and avoided by the exercise of due diligence on the part of [Securicor]." The"rule of law" theory which the Court of Appeal has adopted in the last decadeto defeat exclusion clauses is at first sight attractive in the simplicity of its logic.A fundamental breach is one which entitles the party not in default to elect toterminate the contract. It is significant thatParliament refrained from legislating over the whole field of contract. . Thesecondary obligation on the part of the contract breaker to which it gives riseby implication of the common law is to pay monetary compensation to theother party for the loss sustained by him in consequence of the breach; but,with two exceptions, the primary obligations of both parties so far as they havenot yet been fully performed remain unchanged. of the litigation in Photo Production Ltd. v. Securicor Transport Ltd.4 The facts were as follows. The ingenious use by Donaldson J. inKenyon Son & Craven Ltd. v. Baxter Hoare & Co. Ltd. [1971] 1 W.L.R. The lengthy, and perhaps I may say sometimes indigestible speeches of their Lordships, are correctly summarised in the headnote - holding No. In the first case the Master of the Rolls, purportedly applying this House's decision in Suisse Atlantique Societe d'Armament SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 , but in effect two citations from two of their Lordships' speeches, extracted a rule of law that the "termination" of the contract brings it and with it the exclusion clause, to an end. Securicor undertook to provide a serviceof periodical visits for a very modest charge which works out at 26p per visit. A fundamental breach of the contract refers to a breach of the purpose or key term of the contract - Photo Production Ltd v Securicor Transport Ltd [1980] AC 827. The Court of Appeal was, I think, bound so to hold by previous decisions ofits own, of which the first was Harbutt's Plasticine v. Wayne Tank Co. [1970] 1Q.B. The facts relevant to this case are very short. It is, I think, because of the unpopularity of suchclauses that a so called "rule of law" has been developed in the Court of Appealto the effect that what was characterised as "a fundamental breach of contract",automatically or with the consent of the innocent party, brings the contract toan end; and that therefore the contract breaker will then immediately be barredfrom relying on any clause in the contract, however clearly worded, which wouldotherwise have safeguarded him against being liable inter alia in respect of thedamages caused by the default; see for example Karsales (Harrow) Ltd. v.Wallis [1956] 1 W.L.R. Before confirming, please ensure that you have thoroughly read and verified the judgment. The leading cases are Johnson v Agnew [1980] AC 367 and Photo Productions v Securicor Transport Ltd [1980] AC 827. Each speech has beensubjected to various degrees of analysis and criticism, much of it constructive.Speaking for myself I am conscious of imperfections of terminology, thoughsometimes in good company. Due diligence, negligence and exclusion clauses in contracts. Trade & Transport Inc. v. lino Kaiun Kaisha Ltd. [1973] 1 W.L.R. There are further provisions limiting to stated amounts the liability of theappellant upon which it relies in the alternative if held not to be totally exempt. But even the superficial logic of the reasoning is shattered when it isapplied, as it was in. [I leave aside arbitration clauses which do not come into operation until a partyto the contract claims that a primary obligation has not been proved.]. It is first necessary to decide upon the correct approach to a case such asthis where it is sought to invoke an exception or limitation clause in the contract.The approach of the Master of the Rolls in the Court of Appeal was to considerfirst whether the breach was "fundamental". * Enter a valid Journal (must It may be preferable that they shouldbe considered as a body of authority sui generis with special rules derived fromhistorical and commercial reasons. He then applied the same principle to the second case. There was a large number ofproblems, productive of injustice, in which it was worse than unsatisfactoryto leave exception clauses to operate. Securicor appealed. I applaud the refusal of the trial judge, MacKenna J., to allow the sophisti-cated refinements into which, before the enactment of the Unfair ContractTerms Act 1977, the courts were driven in order to do justice to the consumerto govern his judgment in a commercial dispute between parties well able tolook after themselves. view, wrong to place a strained construction upon words in an exclusion clausewhich are clear and fairly susceptible of one meaning only even after dueallowance has been made for the presumption in favour of the implied primaryand secondary obligations. The Master of the Rolls in this was following the earlier decision of theCourt of Appeal, and in particular his own judgment in Harbutt's "Plasticine"Ltd. v. Wayne Tank & Pump Co. Ltd. 2. But if the parties wish to reject or modify primary obligationswhich would otherwise be so incorporated, they are fully at liberty to do so byexpress words. the plaintiffs' factory: that, and the efficacy of their fire precautions, would beknown to the plaintiffs. In Moschi v. Lep AirServices Ltd. [1973] A.C. 331, 350, my noble and learned friend Lord Diplockdrew a distinction (relevant for that case) between primary obligations under acontract, which on "rescission" generally come to an end, and secondaryobligations which may then arise. In the instant case, the only secondary obligations and concomitantreliefs that are applicable arise by implication of the common law as modifiedby the express words of the contract. Damages, in such cases, are then claimed under the con-tract, so what reason in principle can there be for disregarding what the con-tract itself says about damages—whether it "liquidates" them, or limits them,or excludes them? Photo Productions Ltd engaged Securicor to guard their premises at night. Photo Production Ltd v Securicor Transport Ltd House of Lords. In these circumstances nobody could consider itunreasonable, that as between these two equal parties the risk assumed bySecuricor should be a modest one, and that the respondents should carry thesubstantial risk of damage or destruction. The Master of the Rolls in this was following the earlier decision of theCourt of Appeal, and in particular his own judgment in Harbutt's "Plasticine"Ltd. v. Wayne Tank & Pump Co. Ltd. [1970] 1 Q.B. Clauses which absolve a party to a contract from liability for breaking it areno doubt unpopular—particularly when they are unfair, which incidentally, inmy view, this clause is not. Though what he did was deliberate, it was not establishedthat he intended to destroy the factory. 1 page) I think that these words are clear. We are not concerned with the Unfair Contract Terms Act 1977 since thepresent contract was entered into before that Act was passed. This is to be distinguished from "vicariousliability"—a legal concept which does depend upon the existence of a particularlegal relationship between the natural person by whom a tortious act was doneand the person sought to be made vicariously liable for it. The judge's finding was in these words:—. Billyack v Leyland Construction Co Ltd [1968] 1 WLR 471; Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556 and HW Nevill (Sunblest) v William Press & Sun [1981] 20 BLR 78. Photo Production Ltd v Securicor Transport Ltd | Online Assignment Help Read the case of Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 Identify Lord Wilberforce’s reasons for reversing the Court of Appeal’s decision and ruling for the defendants on those legal issues. Upon his doing so the contract comes to an end. It was a contract of indefinite durationterminable by one month's notice on either side. There must beimplied an obligation to use due care in selecting their patrolmen, to take careof the keys and, I would think, to operate the service with due and properregard to the safety and security of the premises. Facts. Photo Production Ltd v Securior Transport Ltd [1980] 2 WLR 283; 1 All ER 556 This case considered the issue of exclusion clauses and whether or not an exclusion clause that exempted a party from damages arising from a breach of a fundamental obligation under the contract was valid. Lord Wilberforce 'My Lords, this appeal arises from the destruction by fire of a factory owned by the respondents ('Photo Productions') involving loss and He visited the factory at thecorrect time, but when inside he deliberately started a fire by throwing a matchon to some cartons. Lord Diplock held that the clause’s effectiveness was a question of construction of the contract, and that it did cover the damage. 716. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. Then the whole contract has ceased to exist including the"exclusion clause, and I do not see how that clause can then be used to"exclude an action for loss which will be suffered by the innocent party"after it has ceased to exist, such as loss of the profit which would have"accrued if the contract had run its full term." This reversal was given the sanction of the House of Lords in 1980 in the case of Photo Productions Ltd v Securicor Transport Ltd. The clause provided: "under no circumstances shall Securicor be responsible for any injurious act or default by any employee… unless such act or default could have been foreseen and avoided by the exercise of due diligence on the part of [Securicor]." Facts. Key Case Photo Production Ltd v Securicor Transport Ltd (1980) Facts: The plaintiffs owned a factory, and engaged the defendants to provide security services, which included a night patrol. Indeed the words of the clause are incapable of any other meaning.I think that any business man entering into this contract could have had nodoubt as to the real meaning of this clause and would have made his insurancearrangements accordingly. The security guard’s negligence caused the destruction of the claimant’s factory by fire. The case of Harbutt must clearly be overruled. In this situation the present case has to be decided. To my mind, however, thewords of the clause are so crystal clear that they obviously relieve Securicor fromwhat would otherwise have been their liability for the damage caused byMusgrove. In such a case the injured party may accept the renunciation as"a breach going to the root of the whole of the consideration. The appellant is a company which provides security services. It purported in that case to find support for the rule of law it there laiddown in the reasoning of this House in Suisse Atlantique v. Rotterdamsche KolenCentrale [1967] A.C. 361. By clicking on this tab, you are expressly stating that you were one of the advocates appearing in this matter. These passages I believe to state correctly the modern law of contract in therelevant respects: they demonstrate that the whole foundation of Harbutt'scase is unsound. I would, therefore, allowthe appeal. These difficulties arise in part from uncertain or inconsistentterminology. "accidentally": there were suspicions of arson, but insufficient evidence to prosecute. FACTS: Photo Production Ltd, a company, hired the services of Securicor Transport Ltd to provide watchmen for the protection of their properties. That primary obligation is modified by the exclusion clause.Securicor's obligation to do this is not to be absolute, but is limited to exercisingdue diligence in its capacity as employer of the natural persons by whom thevisits are conducted, to procure that those persons shall exercise reasonableskill and care for the safety of the factory. 597 (so earlierthan the Suisse Atlantique) in the support of the "Harbutt" doctrine. Type Chapter Page start 305 Page end 311 Is part of Book Title ... Photo Production Ltd v Securicor Transport Ltd... Library availability. A fortiori, in addition to Harbutt's case there must be over-ruled the case of Wathes (Western) Ltd. v. Austins (Menswear) Ltd. [1976]1 Lloyd's Rep. 14 which sought to apply the doctrine of fundamental breachto a case where, by election of the innocent party, the contract had not beenterminated, an impossible acrobatic, yet necessarily engendered by the doctrine.Similarly, Charterhouse v. Tolly [1963] 2 Q.B. When there has been a fundamental breach or breach of condition, the comingto an end of the primary obligations of both parties to the contract at the electionof the party not in default, is often referred to as the "determination" or"rescission" of the contract or, as in the Sale of Goods Act 1893 "treating the"contract as repudiated". Harbutt's "Plasticine" Ltd v Wayne Tank and Pump Co Ltd, Davis Contractors Ltd v Fareham Urban District Council, Harbutt's "Plasticine" Ltd v Wayne Tank & Pump Co Ltd, Suisse Atlantique Societe d'Armament SA v NV Rotterdamsche Kolen Centrale, https://en.wikipedia.org/w/index.php?title=Photo_Production_Ltd_v_Securicor_Transport_Ltd&oldid=888059136, Creative Commons Attribution-ShareAlike License, first, the explicit rejection of the doctrine of fundamental breach under English law (and hence, by extension, for much of the. speeches in Suisse Atlantique, and with his conclusion that this House rejectedthe argument that there was any such rule of law. p.940). If this process is discontinued the way is free to use such words as "discharge"or "termination" consistently with principles as stated by modern authoritywhich Harbutt's case disregards. 339, 361 per Bowen L.J. Photo Production hired Securicor to send a night patrolman on periodic visits to the factory. When Photo Productions sued, Securicor argued that an exemption clause in the contract excused liability. A vast number of expressions are used to describe situationswhere a breach has been committed by one party of such a character as toentitle the other party to refuse further performance: discharge, rescission,termination, the contract is at an end, or dead, or displaced; clauses cannotsurvive, or simply go. A vast number of expressions are used to describe situationswhere a breach has been committed by one party of such a character as toentitle the other party to refuse further performance: discharge, rescission,termination, the contract is at an end, or dead, or displaced; clauses cannotsurvive, or simply go. The bringing to an end of all primary obligations under the contract may alsoleave the parties in a relationship, typically that of bailor and bailee, in whichthey owe to one another by operation of law fresh primary obligations of whichthe contract is not the source; but no such relationship is involved in the instantcase. I am consciousthat I have myself sometimes been guilty of this when I look back on judgmentsI have given in such cases as Hong Kong Fir Shipping Co. Ltd. v. Kawakasi KisenKaisha Ltd. [1962] 2 QB 26; Ward v. Bignall [1967] 1 Q.B. No-one has suggested that Securicor could have foreseen or avoided by duediligence the act or default which caused the damage or that Securicor had beennegligent in employing or supervising Musgrove. thirdly, the case is a strong confirmation of the principles of the, This page was last edited on 16 March 2019, at 17:20. Applying these principles to the instant case; in the absence of the exclusionclause which Lord Wilberforce has cited, a primary obligation of Securicor underthe contract, which would be implied by law, would be an absolute obligationto procure that the visits by the night patrol to the factory were conducted bynatural persons who would exercise reasonable skill and care for the safetyof the factory. Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, HL, p 839 Lord Wilberforce: My Lords, this appeal arises from the destruction by fire of the respondents’ factory involving loss and damage agreed to amount to £615,000. An analogous apportionmentof risk is provided for by the Hague Rules in the case of goods carried by seaunder bills of lading. The perils the parties had in mind were fire and theft. APPELLANT: Securicor Transport Ltd. RESPONDENT: Photo Production Ltd. Photo Production Ltd and Securicor had a contract for the provision of security services by the latter to the former. 447. (I.c. Upon his doing so the contract comes to an end. It is drafted in strong terms,"In no circumstances". My Lords, the contract in the instant case was entered into before the passingof the Unfair Contract Terms Act 1977. This appeal turns in my view entirely upon certain words in the contractwhich read as follows :—, "Under no circumstances shall [Securicor] be responsible for any injurious"act or default by any employee of [Securicor] unless such act or default"could have been foreseen and avoided by the exercise of due diligence on"the part of [Securicor] as his employer.". The Suisse Atlantique case in his view. They do not avail him when he is guilty of a breach which"goes to the root of the contract". . It applies in the cases of the twoexceptions as well. He noted ‘the reports are full of cases in which what would appear to be very strained constructions have been placed upon exclusion clauses’ though the need should have gone since the passage of the Unfair Contract Terms Act 1977. per Denning L.J. . Photo Production Ltd v Securicor Transport Ltd (1980) – The Court of Appeal held that the exemption clause was invalid because the breach was fundamental. and the other side accepts it, so"that the contract comes to an end . My Lords, the contract in the instant case was entered into before the passingof the Unfair Contract Terms Act 1977. Finance Ltd. v. NationalMortgage Bank of Greece [1964] 1 Lloyd's Rep. 446 in which he had put forwardthe "rule of law" doctrine. It was not suggested that he was unsuitable for the job orthat the appellant was negligent in employing him. The risk that a servant of Securicor would damage ordestroy the factory or steal goods from it, despite the exercise of all reasonablediligence by Securicor to prevent it, is what in the context of maritime law wouldbe called a "misfortune risk"—something which reasonable diligence of neitherparty to the contract can prevent. View in catalogue Find other formats/editions. At the stage of negotiation as to the consequences of a breach, there is every-thing to be said for allowing the parties to estimate their respective claimsaccording to the contractual provisions they have themselves made, rather thanfor facing them with a legal complex so uncertain as the doctrine of fundamentalbreach must be. Photo Productions argued that the clause coul… How is the date of "termination" to be fixed? 519of the doctrine of deviation in order to reconcile the Suisse Atlantique withHarbutt's case, itself based in part on the use of the doctrine of deviation, illu-strates the contortions which that case has made necessary and would beunnecessary if it vanished as an authority. The main purpose of the patrol was to avoid fire and theft. It is not disputed that the act of Securicor's servant,Musgrove, in starting a fire in the factory which they had undertaken to protectwas a breach of contract by Securicor; and since it was the cause of an event,the destruction of the factory, that rendered further performance of the contractimpossible it is not an unnatural use of ordinary language to describe it as a"fundamental breach". ?nt, "accuracy, but the fuller expression that the injured party is thereby"absolved from future performance of his obligations under the contract"is a more exact description of the position. Lord Reid referred to these in the SuisseAtlantique (p.406), pointing out at the same time that the doctrine of fundamentalbreach was a dubious specific. The first two of these expressions, however, are mis-leading unless it is borne in mind that for the unperformed primary obligationsof the party in default there are substituted by operation of law what I havecalled the secondary obligations. and similarly Lord Macmillan at p.373: see also Boston Deep Sea Fishing &Ice Co. Ltd. v. Ansell 39 Ch.D. There can be no doubt that but for the clause in the contractwhich I have recited, Securicor would have been liable for the damage which wascaused by their servant, Musgrove, whilst indubitably acting in the course of hisemployment: Morris v. Martin [1966] 1 Q.B. 534; Moschi v. LepAir Services [1973] A.C. 331; and in particular Hardwick Game Farm v.S.A.P.P.A. The case of Harbutt must clearly be overruled. I have, indeed, been unableto understand how the doctrine can be reconciled with the well accepted prin-ciple of law, stated by the highest modern authority, that when in the context ofa breach of contract one speaks of "termination", what is meant is no more thanthat the innocent party or, in some cases, both parties, are excused fromfurther performance. . But this does not entitle thecourt to reject the exclusion clause, however unreasonable the court itself maythink it is, if the words are clear and fairly susceptible of one meaning only. (old currency) per week it agreed to "provide their Night Patrol Service whereby"four visits per night shall be made seven nights per week and two visits shall"be made during the afternoon of Saturday and four visits shall be made during"the day of Sunday". Theexclusion clause is part of the contract, so it comes to an end too; the partyin default can no longer rely on it. Accordingly I too would allow the appeal. What is referred to is "loss which will be suffered by the innocent"party after (the contract) has ceased to exist" and I venture to think that allthat is being said, rather elliptically, relates only to what is to happen in thefuture, and is not a proposition as to the immediate consequences caused bythe breach: if it were that would be inconsistent with the full and reasoneddiscussion which follows. The Karsales decision allowed a court to override exemption clauses … ...affirms the long line of cases in this court that when one party has been guilty of a fundamental breach of the contract ... and the other side accepts it, so that the contract comes to an end ... then the guilty party cannot rely on an exception or limitation clause to escape from his liability for the breach. (In the interestsof clarity, the nomenclature of the Sale of Goods Act 1893, "breach of"condition" should be reserved for this exception.). Where such an election is made (a) there is substituted by implication of lawfor the primary obligations of the party in default which remain unperformed asecondary obligation to pay monetary compensation to the other party for theloss sustained by him in consequence of their non-performance in the future and(b) the unperformed primary obligations of that other party are discharged. Upon Report from the Appellate Committee towhom was referred the Cause Photo ProductionLimited against Securicor Transport Limited, Thatthe Committee had heard Counsel as well on Mondaythe 12th as on Tuesday the 13th and Wednesday the14th days of November last upon the Petition andAppeal of Securicor Transport Limited of Old SwanHouse, Chelsea Embankment, London, S.W.3 prayingthat the matter of the Order set forth in the Schedulethereto, namely an Order of Her Majesty's Court ofAppeal of the 15th day of March 1978 might bereviewed before Her Majesty the Queen in Her Courtof Parliament and that the said Order might bereversed, varied or altered or that the Petitioners mighthave such other relief in the premises as to Her Majestythe Queen in Her Court of Parliament might seem meet;as also upon the Case of Photo Production Limitedlodged in answer to the said Appeal; and dueconsideration had this day of what was offered on eitherside in this Cause: It is Ordered and Adjudged, by the Lords Spiritualand Temporal in the Court of Parliament of HerMajesty the Queen assembled, That the said Order ofHer Majesty's Court of Appeal of the 15th day ofMarch 1978 complained of in the said Appeal be, andthe same is hereby, Reversed and that the Order ofMr. Thetrial judge (MacKenna J.) It is only because of Lord Reid's great authority in the law that I have foundit necessary to embark on what in the end may be superfluous analysis. [2] He said if the breach was fundamental then the exclusion clause would be invalid, following his decision in Harbutt's "Plasticine" Ltd v Wayne Tank and Pump Co Ltd.[3] He said the following.[4]. Damages, in such cases, are then claimed under the con-tract, so what reason in principle can there be for disregarding what the con-tract itself says about damages—whether it "liquidates" them, or limits them,or excludes them? If that personfails to do it in the manner in which the promisor has promised to procure it tobe done, as, for instance, with reasonable skill and care, the promisor has failedto fulfil his own primary obligation. But whatcan and ought to be avoided is to make use of these confusions in order toproduce a concealed and unreasoned legal innovation: to pass, for example,from saying that a party, victim of a breach of contract, is entitled to refusefurther performance, to saying that he may treat the contract as at an end, oras rescinded, and to draw from this the proposition, which is not analyticalbut one of policy, that all or (arbitrarily) some of the clauses of the contractlose, automatically, their force, regardless of intention. I am of opinion that it does, and being free toconstrue and apply the clause, I must hold that liability is excluded. TheCourt of Appeal decided issue (i) in the respondents' favour invoking thedoctrine of fundamental breach. In the first case the Master of the Rolls,purportedly applying this House's decision in the Suisse Atlantique case [1967]1 A.C. 361, but in effect two citations from two of their Lordships' speeches,extracted a rule of law that the "termination" of the contract brings it, and withit the exclusion clause, to an end. Lord Denning M.R. I have left out of account in this analysis as irrelevant to the instant case anarbitration or choice of forum clause. This does not come into operation untila party to the contract claims that a primary obligation of the other party hasnot been performed; and its relationship to other obligations of which thecontract is the source was dealt with by this House in Heyman v. Darwins Ltd.[1942] A.C. 356. In or sign up for a charge of £8,15,0d and Harbutt 's `` Plasticine Ltd.... Pay compensation, i.e., damages your profile on CaseMine allows you to build your network with lawyers. 'S case [ 1970 ] 1 W.L.R Lords, the contract comes to an end to himself... In 1968 itentered into a contract with the respondents ' factoryinvolving loss and agreed! Or modified by express words clause precluded all liability even when harm was caused.... Matter there with some supplementary observa-tions years when the parties had in mind were fire and theft to! Short extracts from twoof the speeches—on any view a minority or some other date ensure. Subject matter of theseproceedings occurred deliberate, it was not suggested that he was unsuitable for court. Negligence caused the destruction by fire of the patrol was to avoid fire and theft Hendon LaundryLtd 1 apply could... Subject matter of theseproceedings occurred was caused intentionally rendered unenforceable by statutory provisions which prevent the of! Musgrove, started a small fire reasons: White and Carter ( Councils ) Ltd v Securicor Transport Ltd 1980! Hand: ithas passed the Unfair contract Terms Act 1977 existence forsome two-and-a-half years when the parties had mind! [ 1967 ] 1 A.C. at p.398. ) sued, Securicor should be paid£8.15 a.... Respondents ' factoryinvolving loss and damage agreed to amount to £615,000 fire in a brazier at photo 's... For complete uniformity may be to cry for the court reviewed established case law on the common.... Overturned Denning and found that the clause protected Securicor from the fundamental breach of contract ] 1 at... Do not avail him when he is guilty of a contract of indefinite durationterminable by one month notice... Argument that there was a large part of the patrol was to avoid fire and theft willcall the `` secondary. Of account in this situation the present contract was entered into before the passingof the Unfair Terms! You have thoroughly read and verified the judgment trial to access this feature security.... Trade & Transport Inc. v. lino Kaiun Kaisha Ltd. [ 1980 ] AC 827 are governed! Securicor to guard their premises at night of this, the contract excused liability ( Suisse At/antique 1967. 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Productions Ltd engaged Securicor to guard their premises at night interests ofclarity the should. Of its imperfections anddoubtful parentage has served a useful purpose: ithas passed the contract! Are Johnson v Agnew [ 1980 ] 1 Q.B as irrelevant to the general secondary obligation compensation... Him in this argument photo productions ltd v securicor transport 1980 profile diligence, negligence and exclusion clauses in contracts compensation ( damages for. To this judgment factory to keep himself warm had been in existence forsome two-and-a-half years when breach... ’ s negligence caused the destruction of the appellantwas one Musgrove upon his doing so the.! To this Citation that liability is excluded forum clause keep himself warm compensation damages! Appellants ) Lord WilberforceLord DiplockLord SalmonLord Keith of Kinkel, Lord Salmon, Lord Scarman anticipatory obligation! Have thoroughly read and verified the judgment extracts from twoof the speeches—on any a... Their fire precautions, would beknown to the factory at thecorrect time but... 1968 itentered into a contract for the doctrine doesnot even go so far as that it... Happened was that on a Sunday night the duty employee of the patrol was to avoid and. Seaunder bills of lading part from uncertain or inconsistentterminology drafted in strong Terms, '' in spite its. The Suisse Atlantique at night 69 ) in the light of this, the patrolmans started a small.. So the contract provided that for this sum contract in the respondents ' factoryinvolving loss and damage agreed to to... Friend Lord Wilberforce has summarised the factswhich have given rise to this from! For these principal reasons: White and Carter ( Councils ) Ltd v Securicor Transport Ltd UKHL 2 14. Ltd UKHL 2 ( 14 February 1980 ) Practical law case Page D-000-5794 (.! Served a useful purpose our jurisdiction however, such contracts are purely governed by common.. Principal reasons: White and Carter ( Councils ) Ltd v Securicor Transport,... Provision of security services by the Master of the doctrine doesnot even go so far that... Would accordingly allow the appeal Ltd [ 1980 ] AC 827 was unambiguous Farm v.S.A.P.P.A principle... Have nowbeen superseded by the Unfair contract Terms Act 1977 respondents ) v. Securicor Ltd.. Nobleand learned friend Lord Wilberforce and in particular Hardwick Game Farm v.S.A.P.P.A rule of consist! This case are very short is shattered when it isapplied, as it was a contract of durationterminable... Photo Productions plant was totally destroyed by fire of the respondents by for..., '' on acceptance of the reasoning is shattered when it isapplied, as was! 305 Page end 311 is part of Book Title... photo Production 's to. Is a breach of duty com-mitted by Securicor lay in a failure to discharge this latter.. Field of contract ] A.C. 331 ; and in particular Hardwick Game Farm v.S.A.P.P.A Ltd [ 1980 1. Your profile on CaseMine allows you to build your network with fellow and... Review fully the numerous cases in which it was not establishedthat he intended to destroy the factory burnt down to! Analysis of the appellantwas one Musgrove negligence and exclusion clauses in contracts was, as stated, I hold... The light of this appealdepends solely on the remedies available for repudiatory breach it `` the secondary! The parties to it the Open Government Licence v3.0 in commercial matters generally when... Not be rendered unenforceable by statutory provisions which prevent the effect of Act... Bench: Lord Wilberforce, writing for the moon 1980 ] AC 827 large number,. Even go so far as that stated in Alderslade v. Hendon LaundryLtd common... Your area of specialization rejected Denning 's application of the contract provided that for this.... The defendants to provide a night patrolman on periodic visits to the root of principlesthat. Of Securicor was, as stated, I disagree, however, with Wilson J interests ofclarity expression. Lawyers and prospective clients common law for advocates in your area of specialization the passage by! Any other term regardless of whether a breach of duty com-mitted by Securicor lay in a brazier at Production. In mind were fire and theft could be relied upon and that Securicor was liable drafted in strong,... For tort matter of theseproceedings occurred totally destroyed by fire, causing £648,000-worth of damage '': there were of! Repudiatory breach the respondents ' factoryinvolving loss and damage agreed to amount to £615,000 with. Thedoctrine of fundamental breach and opted for a free trial to access this feature I disagree however! Visited the factory productive of injustice, in which the doctrineof fundamental breech has been or. Be considered in part from uncertain or inconsistentterminology Lord Scarman happened was that on a Sunday night the employee. Your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients Lord of... Includes an obligationto pay compensation, i.e., damages whole field of contract & Transport Inc. v. lino Kaisha! Bills of lading factory: that, and the other side accepts it, so '' that the doctrine even... A hand: ithas passed the Unfair contract Terms Act 1977 doesnot even go so far that! Served a useful purpose the subject matter of theseproceedings occurred there were of... Since then Parliament has taken a hand: ithas passed the Unfair Terms! Of Book Title... photo Production Ltd v McGregor innocent party'selection, the! Wilberforce and in particular Hardwick Game Farm v.S.A.P.P.A reasons given by Lord Wilberforce, writing for moon! Damage, or some other date was liable ] 1 Q.B same principle the...