Collateral Contract
Def-Eng
-English courts have used the concept of collateral contract to validate the variations of the terms in
the main contract in order to circumvent 避开 the problem of the parole evidence rule.
- A collateral contract is a separate contract that exists side by side with the main contract and
overrides any inconsistent terms in the main contract.
英国是用 collateral contract concept[附属的合约] 去认同对 terms in main contract 的改革
Collateral contract 用来解决 parole evidence rule 的问题
附属合约= 分开的合约 然后是在 main contract 旁边 同时的 ; 会代替掉那些在 main contract inconsistent 的
term
Collateral=overrode written term [English position]
J Evans & Sons (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 2 AER 930
Held – The plaintiffs were entitled to damages for breach of contract for the following reasons—
(i)The oral assurance given by the defendants that goods in containers would be shipped under deck
amounted to an enforceable contractual promise that any goods thereafter entrusted by the plaintiffs
to the defendants for carriage to England in containers would be shipped under deck. The assurance
was (per Lord Denning MR) binding as a collateral contact for, where a promise or assurance as to
the future had been given to another with the intention that he should act on it by entering into
a contract, and he was thereby induced to enter into the contract, the promise or assurance was
binding as a collateral warranty; Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd[1965] 2
All ER 65 applied.
Alternatively (per Roskill and Geoffrey Lane LJJ) the oral assurance amounted to an express term of
the contract of carriage; that contract (per Roskill LJ) was partly oral, partly written and partly by
conduct and in those circumstances the court was entitled to look at all the evidence to
determine the bargain struck between the parties. It followed that the defendants were liable for
breach of the oral promise unless they could rely on the printed conditions incorporated into the
contract (see p 933 d to f, p 934 j to p 935 e and p 936 b and c, post).
(ii) The defendants were not entitled to rely on the printed conditions to exempt them from liability
for breach of the oral promise that the container would be carried under deck. The printed conditions
were repugnant to the oral promise for, if they were applicable, they would render the promise
illusory. Accordingly the oral promise was to be treated as overriding the printed conditions (see p
933 g to j, p 935 g and p 936 g to j, post); dictum of Lord Denning MR in Mendelssohn v Normand Ltd
[1969] 2 All ER at 1218 applied.
Dt 给 Pt 口头保证 oral assurance 就是 在 containers 的 goods 会被 shipped under deck [但是 dt 就是没有
under deck 弄到那个货物不见掉 掉去海]
这个 oral assurance 就是算是 enforceable 的 contractual promise 来的
Lord Denning 说会这样是因为这个未来的 promise/assurance 就是已经给对方了
然后 Intention 就是要这样 act,然后双方才会 entering contract
所以 pt 就是被 induced 进去 enter contract. 你没有 promise 根本就不会 enter
所以这个 promise 就是 binding 作为 collateral 的 warranty
第二种说法就是 这个 assurance/promise 就是算是 carriage contract 的 express term 来的
这个 contract 是一部分 oral 一部分写 一部分有事看 conduct
所以这个情况下, court 就可以看全部的 evidence 去决定 parties 之间的 bargain 是什么
所以 dt 算是 liable 因为 breach 了 oral promise
除非他们可以 rely 在合约写的 conditions
但是 dt 是不可以 rely on printed conditions 去排除 liability 的
因为 printed conditions 是跟 oral promise 不一致 repugnant 的 如果 printed conditions 是可以被允许, 那么
就会让这个 oral promise 很多余
Oral promise 是被 treated as 大过那个 printed conditions
Malaysian courts have also used the concept of collateral contract.
Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 2 MLJ 16
in a tenancy agreement, the landlord orally agreed that the tenant could occupy the premises for as
long as they wished upon payment of RM14,000/-.
The parties then entered into 2 other written agreements but the oral agreement was not mentioned.
Later when problems arose, the Raja Azlan Shah J as he then was) said that an oral promise given at
the time of the contract which induced the parties to enter into an agreement override any
inconsistent subsequent agreement.
The oral evidence did not offend the existing extrinsic evidence rule because the oral evidence was
not imported. Instead, it constituted a separate contract which existed side by side with the
main agreement.
Thus, the oral evidence sought to be admitted by the tenant was allowed.
在一个租约的 contract
屋主答应租客 要住多久都可以 只要付款 RM14K
之后就签 written agreement 但是 oral agreement 没有放进去
一个口头答应在签约的时候有的 , 吸引 party 去
之后有问题了, judge 讲
签约 会超越任何的接下来 不 consistent 的 agreement
这个 oral evidence 没有影响现在的 extrinsic evidence rule 因为没有 Import oral evidence 我们现在没有说
有 oral evidence 开始可以被认同了...
他只是算是一个分开的合约 side by side 在主要合约的旁边
所以 tenant 要 admit 的 oral evidence 是被准许的 炸到~~~~~
C/f
Industrial & Agricultural Distribution Sdn Bhd v Golden Sands Construction Sdn Bhd [1993] 3 MLJ
433
the dt had bought 2 excavators 挖掘机 unsuitable he could return them.
2 months after the purchase, the dt returned the excavators.
The pt refused to accept the excavators and sued the dt for the payment.
The dt argued that under the oral representation, the pt agreed to accept the excavators.
The issue was whether the oral representation was admissible.
The High Court held that the oral representation could not amount to a collateral contract because it
had the effect of destroying the main contract. The judge said that a collateral contract by its very
nature exist side by side with the main contract. It does not have the effect of substituting main
contract.
A collateral contract merely confers on other rights which have not been incorporated into the main
contract but such rights must relate to the rights and obligation which already exist in main contract.
There cannot be a collateral contract without a main contract in existence.
dt 买了 2 个挖掘机 如果不适合可以退还
买了两个月后, dt 退还 excavators
Pt 不要接受 sued dt 叫他还钱
dt 说 oral representation, pt 答应接受哪个 excavator 的
Issue= oral representation 可以不可以算数呢?
Held: oral representation 不能算是附属的 contract 因为会摧毁原本的 contract
Malaysia position
---> collateral contract 意思就是在 main contract side by side 的合约
然后不能有 substituting main contract 的效果
----> 只能是给别人 rights 然后是还没有 incorporated 去 main contract 的
---> 但是又要是有关系到 main contract 已经存在的 rights and obligation.
Quote both and said for the court to decide which to be followed.
• Eushun Properties Sdn Bhd & Ors v MBF Finance Bhd [1992] 2 MLJ 137
• Kandasami v Mohamed Mustafa [1983] 2 MLJ 85
• Tan Chong & Sons Motor Co. Sdn. Bhd. v. Alan Mcknight (FC) [1983] CLJ Rep 394
