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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Entores Ltd v Miles Far East Corporation [1955] EWCA Civ 3 (17 May 1955) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1955/3.html Cite as: [1955] 2 All ER 493, [1955] EWCA Civ 3, [1955] 2 QB 327, [1955] 3 WLR 48, [1955] 1 Lloyd's Rep 511 |
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COURT OF APPEAL.
B e f o r e :
LORD JUSTICE BIRKETT
and
LORD JUSTICE PARKER
____________________
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____________________
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn. London, W.C.2.)
appeared on behalf of the Appellants (Defendants).
MR MAURICE LYELL, Q.C. and MR DENNIS LLOYD (instructed by Messrs Smiles & Co.)
appeared on behalf of the Respondents (Plaintiffs).
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
The relevant Telex messages in this case were as follows:
8th September, 1954:
"Offer for account our associatesMiles
![]()
Far
![]()
East
Corporation Tokyo up to 400 tons Japanese cathodes sterling 240 longton c.i.f, shipment Mitsui Line September 28th or October 10th payment by letter of credit. Your reply Telex Amsterdam 12174 or phone 31490 before 4 p.m.invited".
"Accept 100 longtons cathodes Japanese shipment latest October 10th sterling 239. 10. 0. longton c.i.f. London/ Rotterdam payment letter of credit stop please confirm latest tomorrow".
"We received O.K. Thank you".
9th September, 1954:
"Regarding our telephone conversation a few minutes ago we note that there is a query on the acceptance of our bid for 100 tons payment in sterling and you are ascertaining that your Tokyo office will confirm the price to be longton we therefore await to hear from you further".
10th September, 1954:
English company: "Is the price for the sterling cathodes understood to be for longton by Japan as you were going to find this out yesterday?". Dutch company: "Yes, price 239.10.0. for longton".
When a contract is made by post it is clear law throughout the common law countries that the acceptance is complete as soon as the letter is put into the post box, and that is the place where the contract is made. But there is no clear rule about contracts made by telephone or by Telex. Communications by these means are virtually
instantaneous and stand on a different footing.
The problem can only be solved by going in stages. Let me first consider a case where two people make a contract by word of mouth in the presence of one another. Suppose, for instance, that I shout an offer to a man across a river or a courtyard but I do not hear his reply because it is drowned by an aircraft flying overhead. There is no contract at that moment. If he wishes to make a contract ? he must wait till the aircraft is gone and then shout back his acceptance so that I can hear what he says. Not until I have his answer am I bound. I do not agree with the observations of Mr Justice Hill in Newcomb v.
De Roos (1859) 2, Ellis & Ellis at page 275.
In all the instances I have taken so far,
the man who sends the message of acceptance knows that it has not been received or he has reason to know it. So he must repeat it. But suppose that he does not know that his message did not get home. He thinks it has. This may happen if the listener on the telephone does not catch the words of acceptance, but nevertheless does not trouble to ask for them to be repeated: or the ink on the teleprinter fails at the receiving end, but the clerk does not ask for the message to be repeated: so that the man who sends an acceptance reasonably believes that his message has been received. The offeror in such circumstances is clearly bound, because he will be estopped from saying that he did not receive the message of acceptance. It is his own fault that ho did not get it. But if there should be a case where the offeror without any fault on his part does not receive the message of acceptance - yet the sender of it reasonably believes it has got home when it has not - then I think there is no contract.
In a matter of this kind, however, it is very
important that the countries of the world should have the same rule. I find that most of the European countries have substantially the same rule as that I have stated. Indeed they apply it to contracts by post as well as instantaneous communications. But in the United States of America it appears as if instantaneous communications are treated in the same way as postal communications. In
view
of this divergence, I think we must consider the matter on principle: and so considered, I have come to the
view
I have stated, and I am glad to see that Professor Winfield in this country (55 Law Quarterly Review, 514) and Professor Williston in the United States of America (Contracts I S. 82, 239) take the same
view.
Apart from the contract by Telex, the Plaintiffs put the case in another way. They say that the contract by Telex was varied
by letter posted in Holland and accepted by conduct in England: and that this amounted to a new contract made in England. The Dutch company on 11th September, 1954, wrote a letter to the English company saying:
"We confirm having sold to you for account of our associates in Tokyo: 100 metric tons: electrolitic copper in cathodes: £239. 10s. 0d. for longton c.i.f. U.K./Continental main ports: prompt shipment from a Japanese port after receipt of export licence: payment by irrevocable and transferable letter of credit to be opened in favour ofMiles
![]()
Far
![]()
East
Corporation with a first class Tokyo Bank. The respective import licences to be sent directly without delay to
Miles
![]()
Far
Last Corporation."
The variations
consisted in the ports of delivery, the provisions of import licence and so forth. The English company say that they accepted the
variations
by despatching from London the import licence and giving instructions in London for the opening of the letter of credit, and that this was an acceptance by conduct which was complete as soon as the acts were done in London.
I am not sure that this argument about variations
is correct. It may well be that the contract is made at the place where first completed, not at the place where the
variations
are agreed. But whether this be so or not, I think the
variations
were accepted by conduct in London and were therefore made in England. Both the original contract and ensuing
variations
were made in England and leave can properly be given for service out of the jurisdiction.
I think the decisions of the Master and the Judge were right and I would dismiss the appeal.
LORD JUSTICE BIRKETT: I can state very
briefly my agreement with the Judgment just delivered by my Lord.
Entores
Ltd. wished to bring an action against
Miles
Far
East
Corporation for damages for breach of contract.
Entores
Ltd. are a company registered and resident in England, the registered office being in the City of London.
Miles
Far
East
Corporation are a corporation with headquarters at 150 Broadway, New York, in the State of New York. In September of 1954 a series of communications passed between
Entores
and
Miles
by means of an equipment called Telex Service, consisting of a teleprinter and signalling unit and certain necessary subsidiary apparatus possessed by both parties. The communications are
virtually
instantaneous, for the moment one party types out the message the other party ought to be receiving it in the ordinary course of things.
Entores
Ltd. claim they entered into a contract with
Miles
for the purchase of copper cathodes and they seek to issue a writ claiming damages for the breach of the contract by
Miles.
They were given leave to serve notice of a writ upon the Defendants in New York out of the jurisdiction. This appeal is against a decision of Mr Justice Donovan dismissing the appeal against the Order giving leave.
"If A makes an offer to B, there is a concluded contract when B has done all that he can do to communicate his acceptance by approved methods".
As was said by Lord Justice Lindley in Carlill v.
Carbolic Smoke Ball Co. (1893, 1 Queen's Bench, 256, at page 262):
"Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be notified".
At page 269 in the same case Lord Justice Bowen said:
"One cannot doubt that, as an ordinary rule of law, an acceptance of an offer ought to be notified to the person who makes the offer, in order that the two minds may come together. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to English law - I say nothing about the laws of other countries - to make a contract".
Since, however, the requirement as to actual notification of the acceptance is for the benefit of the offeror he may waive it and agree to the substitution for that requirement of some other conduct by the acceptor. He may do so expressly as in the advertisement cases by intimating that he is content with the performance of a condition. Again he may do so impliedly by indicating a contemplated method of acceptance, for example, by post or telegram. In such a case he does not expressly dispense with actual notification, but he is held to have done so impliedly on grounds of expediency. Thus in Adams v.
Lindsell (1818) 1 Barnewall and Anderson, 683, the Court pointed out that unless this were so
"no contract could ever be completed by the post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not to be bound till after they had received notification that the defendants had received their answer and assented to it. And so it might go on ad infinitum".
Again in Dunlop v.
Higgins (1848) 1 House of Lords Cases, 381, the Lord Chancellor, Lord Cottenham, pointed out at page 400 that
"Common sense tells us that transactions cannot go on without such a rule"
and in Harris' case, (1872) 7 Chancery Appeals, 587. Lord Justice Hellish at page 594 referred to the mischievous consequences which would follow in commerce if no such rule was adopted. To the same effect is the Judgment of Lord Justice Thesiger in Household Fire Insurance Co. v.
Grant, (1879) 4 Exchequer Division, 216, in which he points out that where the parties are at a distance the balance of convenience dictates that the contract shall be deemed complete when the acceptance is handed to the Post Office.
Where, however, the parties are in each other's presence or, though separated in space, communication between them is in effect instantaneous there is no need for any such rule of convenience. To hold otherwise would leave no room for the operation of the general rule that notification of the acceptance must be received. An acceptor could say: "I spoke the words of acceptance in your presence, albeit softly, and it matters not that you did not hear me", or: "I telephoned to you and accepted and it matters not that the telephone went dead and you did not get my message". Though in both these cases the acceptor was using the contemplated or indeed the expressly indicated mode of communication there is no room for any implication that the offeror waived actual notification of the acceptance. It follows that I cannot agree with the observations of Mr Justice Hill in Newcomb v.
De Roos, (1889) 2 Ellis & Ellis at page 275.
So far as Telex messages are concerned, though the despatch and receipt of a message is not completely instantaneous the parties ' are to all intents and purposes in each other s presence just as if they were in telephonic communication, and I can see no reason for departing from the general rule that there is no binding contract until notice of the acceptance is received by the offeror.
I would accordingly dismiss the appeal.
MR DENNIS LLOYD: I would ask your Lordships that the appeal should be dismissed with costs.
LORD JUSTICE DENNING: Yes, appeal dismissed with costs in any event.
(Their Lordships conferred).
LORD JUSTICE DENNING: On the whole we do not think that we ourselves should give leave to appeal.