GRIFFITH V BRYMER, 1903, 19 TLR, 434.

Facts of the case-

In the case of Griffith v brymer. The action bought by murray Griffith against col W.E. brymer for the
recovery of £100.

In this case the Edward VII crowned in westminister abbey on June 26, 1902 following a coronation
procession from Buckingham palace to abbey. Mr brymer who has house on the street from where
the procession will pass. On June 24, 1902 mr Griffith enter into a verbal agreement with Messrs.
Pope, Roach, and Co., mr brymer’s agents that they want the room in mr brymer house for the
purpose to see the coronation procession of the king at 11 a.m on June 26, 1902. Mr Griffith made a
cheque in favour of mr brymer of 100 pounds. After that on June 26, 1902 at 10 a.m the information
came that the coronation procession was postponed because of the surgery of the king Edward VII
but both the plaintiff and defendant were unaware of the material fact that the procession was
postponed because of the surgery. The plaintiff contended that as both the parties under the
misconception that the coronation procession of the king will happen on June 26, 1902 so therefore
plaintiff will be entitled to recover 100 pounds from defendant.

Principle involved-

When both the parties to the contract are mistakenly unaware of the material fact to the contract
then contract stands void (bilateral mistake of fact).

Issues-

1. whether mr griffith will be entitled to recover 100 pounds from mr brymer?

2. whether contract is void?

Contentions-

Plaintiff side-

Mr. Duke, K.C., and Mr. J. R. Atkin appeared from plaintiff side contended that as both the parties to
the contract unaware of that the coronation procession was postponed because of the surgery of
the king so here both the parties are unaware of the material fact to the contract so here plaintiff
entitled to recover 100 pounds from defendant.

Here the case cited from plaintiff side are " Clark v. Lindsay " and " Blakeley v. muller ".

Decision-

Mr justice wright held that the principle of Coutourier v hastie applied in this case and expressed his
agreement with the law as laid down by Mr. Justice Channell in " Clark v. Lindsay " that this contract
is made on the supposition that nothing will happen which made the performance of the contract
impossible but here supposition converts into mis supposition of the facts which makes the contract
void so here court said that mr Griffith is entitled to recover 100 pounds from me brymer.
Cases referred in this case-

COUTOURIER V HASTIE
Facts of the case-

In this case the plaintiffs, the merchants of Smyrna bought an action to recover the amount of cargo
which will sold by defendants on the behalf of plaintiff. On January 1948 the plaintiff take a vessel at
Salonica on chartered basis to transport cargo of 1180 quarters of corn to England. On 22 February
1948 the master of the ship signed a bill of lading that the cargo will be delivered to plaintiffs assigns
in England. on 1st may 1948 mr Messrs Bernoulli the plaintiff’s agent in England appoints the corn
factors (defendants) on the basis of del credere commission and send them bill of lading and other
important documents related to cargo. On 15 may 1948 the defendants enter into a contract with
mr AB Callender to sell the whole cargo to them. But some how Mr AB Callender know that on 22
april 1948 ship master unloaded the cargo because cargo get so much heated and on the behalf of
the plaintiff in bona fide manner sold the cargo to some other persons in tunis as aresult Mr AB
Callender repudiate the purchase.

Principle involved-

When both the parties to the contract are mistakenly unaware of the material fact to the contract
then contract stands void (bilateral mistake of fact).

Issues-

Whether defendants are liable?

Whether plaintiffs can recover the amount of cargo from defendants?

Decision-

The decision of lower courts affirmed by the house of lords.

In this case court said that when both the parties enter into a contract on may 15, 1948 both the
parties are unkown to the fact that on 22 april 1948 the ship master sold the cargo at tunis so when
both parties entering into a contract on 15 may the consideration from one side doesn’t exists so the
contract is void and defendants are not liable to pay a sum of money to plaintiffs.

Cases consider this case-

GREAT PEACE SHIPPING LTD V TSAVLIRIS SALVAGE INTERNATIONAL) LTD

Facts of the case-

in this case the company Tsavliris salvage international ltd offered the salvaging facilities to the
vessels who need help in the south Indian ocean by contacting with the ships or vessels which are
most close to the sinking ship. there is a ship cape provindence who is sinking in the ocean due to
structural damage in the ship contracts with tsavliris slavage ltd who search in the GPS the nearest
ship and found the great peace ship which is 35 miles away from the cape provindence. Tsavliris
salvage ltd enters into a contract with the great peace to help in saving the crew and cargo of cape
provindence. In fact, due to mistake of tasvliris salvage ltd it is found that great peace ship is 400
miles away from cape provindence. As their urgent need of help to cape provindence because it was
sinking the tsavliris salvage ltd cancels the contract with great peace shipping ltd and contact
another ship for the assistance of cape provindence.
Principle involved-

When one party to the contract mistakenly unaware about the material facts to the contract the
contract is voidable at the option of other party unilateral (mistake of fact).

Issues-

Whether tsavliris salvage international ltd is liable for the breach of contract with great peace
shipping ltd?

Decision-

in this case court held that in Griffith v brymer when both the parties to the contract are in common
mistake then contract is void but in the above case unlike Griffith v brymer there is a mistake of
tsavliris salvage ltd in estimating the distance and on the other side there is no mistake of great
peace shipping ltd. So, in this case tsavliris salvage international ltd is liable for the breach of
contract and court introduce the principle that when one party to the contract in a mistake then
contract is voidable at the option of other party.

LAWS RELATED TO THE CASE OF GRIFFITH V BRYMER

definition of mistake-

mistake defined as “when both the parties to the contract are under the mistake of the essential fact
to the agreement, the agreement is void”.

Explanation-

When an opinion as to the value of thing which forms the subject matter of the agreement is not to
ne deemed a mistake as to a matter of fact.

Section 20 will come into play-

1. when both the parties to the agreement are under the common mistake.

2. there is a mistake related to the matter of fact

3. the fact on which parties to the contract are under mistake must be essential to the agreement.

Bilateral mistake-

Bilateral mistake is defined under section 20 that when both the parties to the contract are under
mistake to the fact essential to the agreement that agreement is void. It was further added a
declaration in section 22 that when one party to the contract under a mistake as to the matter of
fact then it is not essential that contract become voidable. For example that the govt sold the right
of fishery for one year to the person who bid highest in the auction but plaintiff think that he got the
right of fishery for 3 years and bid highest in the auction but the right is only for 1 year so here the
contract is not void because here the one party to the contract is under the mistake of fact so this is
“unilateral mistake”. The nature of unilateral mistake is provided under section 22 is best explained
in the case of Haji Abdul Rahman Allarakhia v Bombay and Persia steam navigation co. in this case
the plaintiff chartered a streamer which was on sail at jedda on 10 august 1892 (fifteen days before
haj) but plaintiff believed that 10 august 1892 corresponded to fifteenth of haj. And defendants
contracted on the basis of English date i.e. 10 august 1892. After some time plaintiff know about that
he mistakenly calculated the fifteen days after haj completed on 10 august 1892 but actually fifteen
days after haj completed on different date so he filed case in the court for the ratification of Charter
party. So, in this case Court said that there is unilateral mistake from the side of plaintiff so he will
not get any relief.

As we know section 20 defines that when both the parties to the contract are under mistake to the
fact then that agreement is void. So that mistake of both the parties can be “mutual” or “common”.
Mistake is classified in “mutual”, “common” and “unilateral” mistake is adopted by Cheshire and
fitfoot, THE LAW OF CONTRACT. The common mistake is explained in very detailed manner.
Common mistake means when both the parties makes the same mistake. And both the parties know
the intention of each other and accept it. In common mistake both parties to the contract mistaken
about the underlying or fundamental fact. For example, A and B doing contract with each other but
unaware of that the subject- matter of the contract doesn’t exist.

In common mistake the contract is void when parties to the contract are under mistake related to
subject matter of the contract. This type of mistake occurred in Griffith v brymer in this case both
parties to the contract are unaware about the postponement of coronation procession which is the
main subject matter of the contract so the contract become void. In couturier v hastie when both the
parties entering into a contract the subject matter of contract doesn’t exists but both parties
unaware of that fact which makes the contract void. In strikland v turner one party pay the amount
of annuity for the life of person who is already dead so here the contract become void. In Galloway v
Galloway parties to the contract signed the separation deed under the mistake of fact that they both
are married so here contract is void.

Mistake as to subject- matter-

Non-existent of subject matter-

This concept of mistake is best explained in the case of Gustavus couturier v Robert hastie by the
house of lords. In this case the plaintiff sends the cargo through a chartered vessel to England. in
England plaintiff agent appoint the person as corn factor on del credere commission to sold that
cargo to another person. Corn factor enter into a contract with other person to sold the cargo of
corn but before this contract the cargo was sold by ship master because cargo was heated so here
the contract between the corn factor and other person becomes void because of the non-existent
of subject matter of contract.

So, in mistake as to subject matter the non-existent of subject matter rendered the contract void.

impossibility of performance and frustration-

subsequent impossibility- (S. 56)

the second paragraph of section 56 explains the concept of subsequent impossibility of performance
of contract which means that when the parties to the contract makes the contract there is a
possibility of the performance of contract but due some subsequent happened event renders the
contract void. For example, in case of Griffith v brymer the event of coronation procession is fixed
but due the urgent surgery of the king the procession will postpone so this makes the performance
of contract impossible so the contract between Griffith v brymer becomes void. One more example
where the is made for the import of goods but due to subsequent notification of the govt. govt
forbidden the the import of goods which makes the contract void because of the impossibility of
performance of contract.
Frustration of contract-

In case of taylor v Caldwell the music hall is destroyed in fire which makes the performance of
contract impossible because of disappearance of subject matter. The principle is not only limited to
physical impossibilities. It also extends to the contracts in which the performance is physically
possible but the objects which are in the minds of parties are not possible to perform. The example
of this principle is explained in well-known coronation cases. In krell v henry the defendant enters
into a contract with plaintiff who has a house on the from where coronation procession will pass.
Defendant paid a part of rent of house in advance but later the procession was abandoned as a
result defendant refused to pay the remaining amount. In this case of krell v henry the court held as
the real object of the contract is the view of coronation procession for both the parties and the
happening of coronation procession is the foundation of the contract. As coronation procession
abandoned which makes the contract frustrated as a result the plaintiff is not entitled to recover the
remaining amount.

This doctrine of frustration is also applied in the case of Griffith v brymer in which the object which
is in the minds of the parties are impossible to perform because the very foundation of this contract
that is happening of coronation procession is not fulfilled which makes the contract frustrated and
here plaintiff can recover the 100 pounds from the defendant.
 WITH V O’ FLANAGAN, 1936, CH, 575
Facts of the case-

On January 1, 1934 a medical agency introduced the plaintiff to the defendant for the purchase of
medical practice of defendant then the medical agency represents that medical practice is for sale
and earning 2000 pounds per annum and Dr o’ Flanagan want to sell his medical practice for 2 years
for 4000 pounds. In the time period between January, 1934 and 1 may 1934 when contract was
signed dr o’ Flanagan become seriously ill from time to time and in his absence his practice was
managed by the locum tenens as a result the earning of his medical practice fall off considerably it
appears that earning in last 3 weeks before 1 may 1934 is 5 pounds a week on an average and 10 to
15 pounds of payment came from single patient. In this case as Dr o’ Flanagan who know that in the
period between January to may the earning was considerably fall off but this change in
circumstances do not informed to plaintiff by the defendant. Plaintiff when take possession of the
practice in the evening of 1 may 1934 he knows about that earning was fall off then he stayed there
for 2 to 3 days he observed that no private patient came there and the earning of last 3 weeks was 5
pounds a week on an average. Plaintiff also observed that this low earning represents that the
representation made by the defendant that his medical practice is doing at the rate of 2000 pounds
per annum is untrue and plaintiff brought an action against the defendant in the court for the
recession of contract.

Procedural history-

Lower court gave the decision in the favour of defendant and gave the reason that this contract not
the contract of uberrimae fidei. This contract is ordinary contract in which plaintiff have to prove
that the representations made by defendant which induced the plaintiff to act upon is untrue at the
time when it was made but in this case representation was true when it was made so action of
plaintiff failed.

Principle involved-

“if a statement has been made which is true at the time, but which during the course of the
negotiations becomes untrue, then the person who knows that it has become untrue is under an
obligation to disclose to the other the change of circumstances.”

Issues-

1. whether the decision of lower court is correct?

2. whether the change in circumstances must be informed to plaintiff?

Contentions-

Plaintiff side-

1. plaintiff solicitors contended that it is the duty of the defendant to inform the plaintiff the change
in circumstances between January 1934 and 1 may 1934 when contract was signed.

2. the cases cited by plaintiff regard to this change in circumstances are Traill v. Baring, In re Scottish
Petroleum Co, Davies v. London and Provincial Marine Insurance Co. This rule is of general
application and is not confined to cases uberrimae fidei, such as contracts of insurance.
Respondent side-

Respondent side contended that as the thing best explained by lower court that when at the time of
representation was made to the plaintiff the average earning of the is 2000 pound per year which is
true. So, my client is not liable.

Decision-

Judgement was not affirmed.

The decision in the case of with v o’ Flanagan given by 3 judges LORD WRIGHT M.R., ROMER L.J. and
CLAUSON J.

1. decision given by LORD WRIGHT M.R.

In this case the LORD WRIGHT M.R. stated that plaintiff in my opinion established the representation
of facts and also established that the material alteration was taken place between the period when
the representations were made and when the contract was signed. They also established that there
is no communication by Dr o’ Flanagan regarding the change in circumstances. Lord Wright M.R.
stated that defendant must communicated the change in circumstances to the plaintiff.

The case cited by LORD WRIGHT M.R. and principle of cited applied in this case.

a. Davies v London & Provincial Marine Insurance Co. in which justice FRY J. stated that-

"that the change of circumstances ought to have been stated to the intending sureties, and that the
agreement must be rescinded and the money returned to the sureties."

"Where parties are contracting with one another, each may, unless there be a duty to disclose,
observe silence even in regard to facts which he believes would be operative upon the mind of the
other; and it rests upon those who say that there was a duty to disclose, to shew that the duty
existed."

b. Traill v Baring in which justice Turner L.J. stated that-

"I take it to be quite clear, that if a person makes a representation by which he induces another to
take a particular course, and the circumstances are afterwards altered to the knowledge of the party
making the representation, but not to the knowledge of the party to whom the representation is
made, and are so altered that the alteration of the circumstances may affect the course of conduct
which may be pursued by the party to whom the representation is made, it is the imperative duty of
the party who has made the representation to communicate to the party to whom the
representation has been made the alteration of those circumstances; and that this Court will not
hold the party to whom the representation has been made bound unless such a communication has
been made."

LORD WRIGHT M.R. cited the above cases and explained that the when representations was made to
induce the person to take particular action and afterwards that representations become untrue
because of change in circumstances then the party who made the representations has the duty to
inform the other party about the change in circumstances.

Lord also that with due respect to learned judges the plaintiff has established his case and there
ought to be a declaration rescinding the contract.
2. decision given by ROMER L.J.

Justice ROMER L.J. stated that the facts of the case stated that change in circumstances must be
informed to the plaintiff by the defendant. He also stated that there are so many authorities to
support this statement but I don’t think any authority is necessary because it seems to me, so
obviously consistent with the plainest principles of equity.

It is plain from the evidence of the two plaintiffs who were called, who intended purchasing the
practice and entered into the practice on May 1, that the practice was a dead one. Under those
circumstances, with the greatest respect to Bennett J., it appears to me that the plaintiffs are
entitled to succeed in the action.

Cases referred in the case of with v o’ Flanagan-

TRAILL V BARING
Facts of the case-

The Privy Council Assurance Society having granted a policy for £3,000 on the life of LT, proposed to
plaintiffs, who were another assurance society, that they should take £1,000 part of the risk, and
stated that they had reassured the life for £1,000 with a third office, but that they intended to retain
the remaining £1,000 themselves. Plaintiffs accepted, but before the reassurance with them was
effected, defendants changed their intention and disposed of the whole risk, but omitted to inform
plaintiffs thereof. The reassurance with plaintiffs was then completed: Held the policy of reassurance
with plaintiffs was rendered void by this misrepresentation, and it must be delivered up to plaintiffs,
and this although no fraud of any kind was otherwise established against defendants.

Decision-

In the case trail v baring the court said that if one party made representations to induce other party
to take particular action and afterwards due to change in circumstances the representation
previously made becomes untrue then it is the duty of the party who made the representation to
inform the change in circumstances to the other party.

Words of justice TURNIG L.J. in this case was-

"I take it to be quite clear, that if a person makes a representation by which he induces another to
take a particular course, and the circumstances are afterwards altered to the knowledge of the party
making the representation, but not to the knowledge of the party to whom the representation is
made, and are so altered that the alteration of the circumstances may affect the course of conduct
which may be pursued by the party to whom the representation is made, it is the imperative duty of
the party who has made the representation to communicate to the party to whom the
representation has been made the alteration of those circumstances; and that this Court will not
hold the party to whom the representation has been made bound unless such a communication has
been made."

DAVIES V LONDON & PROVINCIAL MARINE INSURANCE CO

Facts of the case-
LAWS RELATED TO THE CASE OF WITH V O’ FLANAGAN
Definition of misrepresentation-

Misrepresentation means and includes-

1. the positive assertion, in a manner not warranted by the information of the person making it, of
that which is not true, though he believes it to be true.

2. the breach of duty without any intention to deceive or to gain any advantage from the person.

3. when one party to the agreement innocently causing mistake to the substance of the thing which
is subject of the agreement.

Constructive fraud-

Any breach of duty which brings an advantage to the person committing it by misleading the other
to his prejudice is a misrepresentation. This clause almost satisfied the requirement of cases called
court of equity- cases of constructive fraud. “Constructive fraud in which the person has no intention
to deceive the other person but circumstances are that he automatically derives benefit from the
transaction this person is equally answerable to like those persons who intentionally deceive the
other person”. For example, In case of

Khandu Charan Polley v Chanchala Bhuinya the plaintiff signed the deed without read the table of
contents as he has no time to read. While signing the deed the defendant said this is nothing but
contained the formal matters settled between them but in reality, the deed contained the release
paper of the defendant. In this case court said that there is no obligation the defendant to the
plaintiff what was written in this deed. But here plaintiff show trust on the defendant so here the
defendant legally binds to disclose all the facts contained in the deed so here court set aside the
deed.

In with v o’ Flanagan also the defendant made representations was true when it was made but when
contract was signed the representation become untrue but the defendant nothing informed about
that change to the plaintiff so here in this case also the defendant not intentionally deceive the
plaintiff but circumstances are that defendant automatically derives benefit from that so the
principle of constructive fraud applied by LORD WRIGHT M.R. in this case.

Change in circumstances-

This concept is defined both in misrepresentation and fraud. In this concept of change in
circumstances court said that change in circumstances must be communicated to the other party
otherwise it constitutes misrepresentation and fraud. There are many cases in which this concept
was explained for example in case of Esso petroleum Co Ltd v Mardon