1) In 1893 the Harvey v Facey case was heard in the UK Judicial Committee of the Privy

Council on appeal from the Supreme Court of Jamaica the previous year. The

appellants, Harvey and another solicitor with whom he was in partnership1, had in the

previous year been successful in his appeal to overturn the original decision of J

Curran who had found in favour of the respondents, Facey and his wife.

The dispute between the two parties was whether a contract of sale had been

established over the course of 3 telegrams – Harvey suggesting it had and Facey

suggesting it had not. The sale in question was Bumper Hall Pen with which Facey

was also in negotiations of sale to the town of Kingston. Harvey therefore sued for the

performance of what he believed to be a valid contact and also for an injunction

against the sale of Bumper Hall Pen to the town of Kingston. However the

respondents pleaded section 4 of the 1667 Statute of Frauds in response. Their

argument was that a contract of sale of property could only be formed when in writing

and signed2. The dispute itself centred on the 2nd telegram and the timeline of the three

was as follows:

An enquiry as to whether Facey would sell Bumper Hall Pen and a request that

he send his lowest sale price. (H to F)

Reply stating that the lowest price would be £900 for the property. Crucially

this was the limit of his response and he gave no answer to the enquiry as to

whether he would sell or not. (F to H)

The third and final telegram stated an agreement to purchase the property for

the sum of £900 stated. (H to F)

From this Harvey took that the 2nd telegram constituted a formal offer of sale and that

his acceptance was enough to guarantee a binding contract between the two parties.

On the contrary Facey was of the opinion that there were 2 questions posed by Harvey

in the 1st telegram. Firstly, will you sell? Secondly, what is your lowest price?

Therefore; he thought he had answered only the 2nd question by giving a cash price

and this was not an acceptance to sell. The trial court determined that the telegram

could constitute a written agreement so Facey’s line of argument with the Statute of

Frauds was unsuccessful as it was determined that a telegram met the criteria of being

written and signed. However this proved to be inconsequential as the court held in 1 As per stated by Lord Morris2 Section 4 Statute of Frauds

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favour of Facey due to the fact that within a written agreement the offer could not be

implied – it must be a certainty. Harvey then appealed to the Supreme Court of

Jamaica who reversed the decision and so the case was finally settled in the UK

Judicial Committee of the Privy Council.

The Supreme Court of Jamaica ordered that 40 shillings should be paid by Facey to

Harvey to cover the appeal cost but they failed to establish that Facey had power to

sell the property. Harvey’s solicitors took the line that Facey’s wife was a mere

trustee of the property and, as it was purchased by Facey himself, he did not need her

permission. Despite this being failed to be established, it was governed by the

Supreme Court of Jamaica that a binding contract had been formed. Therefore the 40

shilling fine was attributed to Facey for compensation costs for both court cases due

to a breach of this contract as it appeared he did not have the right to agree to a sale

without the permission of his wife. This lack of authority to sell meant Facey had

breached the contract but Harvey was still unable to buy Bumper Hall Pen.

The case was then settled in front of Lord Morris who provided the final verdict. Lord

Morris gives a detailed account3 of the trial history and most of the potentially

important factors initially before concluding that the respondent’s defences were

inconsequential due to the fact that the lordships agreed with the initial reasoning of

Mr. Justice Curran:

They determined that no contract could be drawn from the telegrams.

Upon analysis of the all-important split in the two questions from the 1st

telegraph, it was taken that “Telegraph lowest cash price...” referred only to

the 2nd question so, by way of replying with his lowest cash price, this is all

that Facey committed to.

Held that Facey only committed to a lowest price of sale and not to a contract

of sale.

Lord Morris continued with a statement revealing that should Mr. Facey then have

replied yes or equivalent in a 4th telegram then that would be construed to be an

answer to the other question of whether Facey would actually sell Bumper Hall Pen.

Thus should this have been answer then the court would have sided with Harvey but 3 Judgement of Lord Morris in Harvey v Facey 1893

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there was no 4th telegram of acceptance so Facey was awarded the costs of appeal to

the Supreme Court and to the UK Judicial Committee of the Privy Council.

2) There is a legal dispute between Moira and Mr. Biggs regarding a conservatory that

Moira wanted constructed and the details were arranged via an exchange of letters.

This scenario very much mirrors the case of Mathieson Gee Limited v. Quigley 1952.

Mr. Biggs and Moira met to verbally discuss an arrangement and then followed this

by an exchange of letters. There is nothing to influence the legal position of either

party with the exchange of letters in a theoretical sense – postal rule dictates that the

offer stated by Mr. Biggs in the letter is accepted as soon as Moira posts her

acceptance. Therefore it would appear that a contract has been formed instantaneously

as Moira posts her letter, “the post must be used…the acceptance is complete as soon

as it is posted”4. However therein lies the key issue because in fact there was no

contract between the two parties upon closer inspection. Granted there is the

unconditional acceptance of an offer from Mr. Biggs by Moira but, crucially, there is

no consensus in idem or meeting of the minds, so to speak, which is required for a

valid contract. The law allows the judgement of the contract but in cases in which the

parties fail to create a legal contract due to a lack of consensus in idem the court

cannot then create one as Lord Loreburn states, “It is not enough for the parties to

agree in saying there was a concluded contract if there was none, and then to ask a

judicial decision as to what the contract in fact was. That would be the same thing as

asking us to make the bargain, whereas our sole function is to interpret it5”. To reach

this meeting of the minds it is not necessary to have every minute detail agreed upon

but the essentials must be agreed, an example being the price in a contract for sale of

goods.

In this scenario it is a contract for services provided by Mr. Biggs to Moira so the

‘essentials’ are price, date of delivery and the extent of service provided by Mr. Biggs.

It is the latter which sees the legal position of the two differ: Mr. Biggs states the price 4 Judgement of Lord Herschell in Henthorn v Fraser [1892]5 Judgement of Lord Loreburn in Houldsworth v Gordon Cumming

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and material quantity that will be delivered and that he will offer his “cooperation as

required to ensure that your conservatory will be built according to plan and on

time”6. Moira accepts the date of material delivery and the price but also accepts,

“your offer to build my conservatory”7. The dispute is very similar to the given case

in the question here in that an offer of cooperation has been construed differently by

the parties leading to them both forming a contract which, to each individual, meant

something different and they believed that the other also believed what they did. In

the given case Lord Normand states, “It can and ought naturally to be read as

assuring the appellant that the respondents will co-operate in selecting the right kind

of plant for the work on which it was to be used from time to time and supplying it in

good order and fit for the work to be done8”. While the exact nature of the cases

cannot be substituted, the statement gives clear direction as to how to approach such a

situation. Thus it would be adjudged that Mr. Biggs offer should be read as above but

the cooperation mentioned should have been taken as an indicator that he would

provide the materials in a good condition, suitable for her conservatory and on time.

However this certainly does not mean that Mr. Biggs legal position is stronger than

that of Moira – she accepted an offer of what she perceived to be a delivery and then

the construction of her conservatory.

This will lead to an objective judgement to test what an objective party would think

was the case in; appellant’s, respondent’s and neutral’s position. In this case it is

objectively clear that there is no agreement on the disputed ‘essential’ and so there is

no contract – this mirrors a judgement of Lord Normand, “...when the parties to a

litigation put forward what they say is a concluded contract and ask the Court to

construe it, it is competent for the Court to find that there was in fact no contract and

nothing to be construed9”. Consequently despite the parties in this scenario believing

they had an agreement and suing for performance of payment in Mr. Biggs case for

the materials and, in Moira’s case, responding that Mr. Biggs did not complete his

obligations, they cannot use contract law due to non-existence of contract. While this

settles the issue of their respective legal positions regarding what they thought was a

valid contract between them, this leaves them still in an unsatisfied legal relationship.

6 Quotation lifted from question given7 Quotation lifted from question given8 Judgement of Lord Normand in Mathieson Gee (Ayrshire) Limited v. Quigley 19529 Judgement of Lord Normand in Mathieson Gee (Ayrshire) Limited v. Quigley 1952

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Mr. Biggs has no payment for the materials delivered and Moira has had no benefit

from the scenario. A different area of law is Unjustified Enrichment which could

potentially offer a legal solution to the 2 legal positions: Mr. Biggs made a delivery

under a false belief that a contract existed and it would be upon investigation in this

area of law that reparations could perhaps be made.

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