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Date: Mon, 20 Oct 2003 13:42:34 +0100 From: Andrew Tettenborn Subject: Contract exam case?
Likers of, and examiners in, contract law might have some fun with a case from last month, Ministry of Sound v World Online [2003] EWHC 2178 (Ch). MOS (an entertainment group) arrange a 2-year sponsorship deal with WOL. WOL is to pay about £1.2m in instalments over the period, and in exchange MOS is to promote a brand link with WOL on its website etc and to distribute (in its magazine & elsewhere) some 1.3 WOL access CDs to be produced by WOL. WOL, in breach of contract, only produces 650,000 CDs at the beginning, & none thereafter. WOL suggests that the transaction has fallen through, & refuse to pay the final instalment. MOS say the deal is still on foot, come up clutching the report of White & Carter v McGregor & sue for the instalment as money due. WOL say MOS can't perform as agreed (since there aren't any CDs left to distribute), and so can't claim the price for services it hasn't performed in full. It is, they say, limited to damages for such loss as it can prove. N. Strauss QC (deputy judge): On principle White & Carter applies. The fact that MOS can't perform in full without WOL's cooperation is irrelevant since the obligations on both sides are independent as in Pordage v Cole. And they have an interest in performing (apparently). Two further points: 1. Strauss refused summary judgment on the basis that WOL might have a counterclaim for *partial* failure of consideration, thus creating circuity of action. 2. Strauss also suggests that the claim is for specific performance, even though it's for a contractual debt (!!) and thus subject to all the traditional specific performance bars.
Andrew Andrew
Tettenborn MA LLB Tel:
01392-263189 / +44-392-263189 (international) Snailmail:
School of Law,
[School homepage: http://www.ex.ac.uk/law/
]
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