Yes, I agree the remuneration well above market rate is relevant. I think the question is whether he can be regarded as having ‘taken the risk’ of non-payment in circumstances where the property didn’t sell for 6.5million because of a mistaken valuation that didn’t come to light until after the service had been rendered.

 

He was to receive a payment well above market rate. On his construction of the contract he was never bearing any risk – either he got a massive uplift or he got paid the going rate for the work he was doing.

 

In my view that is the distinction with the Hylane case. Once the agent had failed to secure a price above £35k and the defendant refused to sell, the mandate fell away and a new contract, remunerating him on a flat market rate was put in place instead. If the property had eventually sold for more than £35k (recall that it ultimately sold for £31k, more than was offered at the auction) he would not have got anything more than the market rate. He had ceased to gamble and instead accepted a lower risk remuneration package.

 

 

 

That’s also my interpretation, Fred (i.e. that they think that (5) is the correct interpretation). Rather harsh on Mr Barton.

 

I’ve copied Tim L’s comment beneath Tim P’s to keep them in a thread and respond to check I understand the difference between an ‘only if’ and an ‘iff’ construction (5 vs 6). Am I right that the distinction between (5) and (6) matters only when it comes to working out what obligation is precedent or subsequent upon what?

 

So: if the propositions are (and are they?) ‘there is an obligation to pay’ (oP) and ‘there was a relevant introduction’ (I), then am I right that:

• only if means that IàoP, such that if it’s not the case that oP then it’s not the case that I;

and that

• Iff means IßàoP meaning you can contrapose both ways

?

 

The biconditional won’t be correct if the obligation to pay was precedent to the obligation to perform, but the strict conditional is possible even if there was an initial obligation to pay.

 

Meaning: on no view can (6) be correct because on no view was Barton entitled to anything prior to an introduction. If there is any reference to ‘if and only if’ then, it must be an imprecision of expression.

 

I take it that the majority must think the that it’s (5) since there is no other way to make sense of the suggestion that an obligation to pay would be inconsistent with the contract’s express terms.

 

 

Congrats Rob!

I don’t think it would change the result (which seems dubious).
If the contract provided for payment and that payment isn’t made as promised, I tend to think there can still be a failure of condition/failure of basis (cf. the High Court of Australia in Mann v Paterson). This is supported by, e.g., Pavey & Matthews and other cases where restitution for a failure of condition has been awarded where the price was earned but not paid.

Best,

 

Tim

 

From: "Liau,TH" T.H.Liau@lse.ac.uk
Date: Tuesday, 31 January 2023 at 16:39
To: Matthew Hoyle MHoyle@oeclaw.co.uk, Jason W Neyers jneyers@uwo.ca, obligations obligations@uwo.ca
Subject: RE: The Laws of Restitution

 

I’ve only very briefly skimmed the case. But what the ‘contract provided’, and therefore whether there was any room for restitution, would have surely depended on whether the agreement was that:

1. Mr Barton was to receive £1.2 million if the property was sold for £6.5 million to a purchaser introduced by him
2. Mr Barton was to receive £1.2 million only if the property was sold for £6.5 million to a purchaser introduced by him
3. Mr Barton was to receive £1.2 million if and only if the property was sold for £6.5 million to a purchaser introduced by him
4. Mr Barton was to receive payment if the property was sold for £6.5 million to a purchaser introduced by him
5. Mr Barton was to receive payment only if the property was sold for £6.5 million to a purchaser introduced by him
6. Mr Barton was to receive payment if and only if the property was sold for £6.5 million to a purchaser introduced by him

 

Unfortunately this was not unpacked all that clearly. Based on the result, it seems to me the majority must have decided either on 5. or 6. (despite the wording in the judgment sometimes indicating the other formulations).

Best

Tim

 

 

 

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The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.

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