Breach of contract
Appellant Buyer contracted to purchase sand from seller By terms of contract, buyer was supposed to order a minimum amount of sand from the seller every month & make payment within 60 days of delivery Payment by buyer for all the months were late and the seller received payment only after it had sent reminders to the buyer. The buyer also repeatedly failed to order the requisite contractual quantities every month (buyer's breach) The seller subsequently stopped supply of sand to the buyer (20 July) in order to pressure the buyer to pay the outstanding invoices. (seller's breach) When the buyer still failed to pay, the seller informed the buyer that it treated its conduct as amounting to a repudiation of the contract and the seller purported to accept the repudiation by a letter dated 14 September 2006 The buyer denied the allegations of under-ordering and late payment. Instead, the buyer claimed that the seller had repudiated the contract by making short deliveries Holding Did the non-payment by the buyer entitle seller to terminate the contract? — No [32] Whether or not the innocent party is legally justified in terminating the contract depends on whether one of the situations set out in RDC Concrete has been satisfied [52] Situation 2 of RDC: There was no evidence that delayed payments constituted a renunciation Seller's argument would be more persuasive if buyer did not pay seller at all The fact that seller accepted late payments from buyer suggests that it did not consider the conduct of buyer as a renunciation of the contract [53] Situation 3a of RDC: There was no evidence construing the Contract (including cl 8 therein) in the light of the surrounding circumstances as a whole that cl 8 was intended by the parties to be a condition Although it was a mercantile transaction, the court thought that the parties did not intend it to be a condition, especially because of the brevity of the clause — indicating that parties wanted it applied with some flexibility & leeway Furthermore, time of payment was not of the essence in the contract, see s10(1) of Sale of Goods Act Although seller gave the buyer notice, that notice cannot make a non- essential term of the contract a condition [57] Situation 3b of RDC: Hongkong Fir approach Clear that failure to pay on time did not deprive seller of substantially the whole benefit of the contract
Alliance Concrete Singapore Pte Ltd v Comfort Resources Pte Ltd [2009] 4 SLR(R) 602, [54]- [57] (Phang JA)
STATUTE CLASSIFYING CONDITION Parties contracted for the sale and purchase of timber staves cut to 8/16 inch thickness Goods were cut to 9/16 inch thick instead Holding Parties allowed to reject the goods & terminate contract even though their real reason for termination was to escape what turned out to be a bad bargain Reasoning Lord Buckmaster: "If the article they have purchased is not in fact the article that has been delivered, they are entitled to reject it, even though it is the commercial equivalent of that which they have bought" Lord Atkin: "The simple question is whether the goods when shipped complied with the implied condition (see the Sale of Goods Act, 1893, s. 13) that they should correspond with the description. ... If the written contract specifies conditions of weight, measurement and the like, those conditions must be complied with." However, also conceded: "No doubt there may be microscopic deviations which business men and therefore lawyers will ignore".
Arcos Ltd v Ronaasen [1933] 1 AC 470
CONDITION BY CONSTRUCTION A charterparty described the ship was "now sailed or about to sail" Time of contracting was Mar 29, ship did not sail until almost a month later. In May, Dfs became aware of date of sailing. On June 16 they issued a letter to the Pfs saying they would load the ship but claim damages for the breach of the time clause Dfs gave up right to terminate when they sent that but the "now sailed or about to sail" clause could be considered a condition precedent Made this decision based on LIKELY effect of such a breach on the venture as a whole Holding If not for the letter, HOL would have held the delay as a condition Reasoning (to why it would read it as a condition if not for the letter) There is no way of deciding that question except by looking at the contract in the light of the surrounding circumstances, and then making up one's mind whether the intention of the parties, as gathered from the instrument itself, will best be carried out by treating the promise as a warranty sounding only in damages, or as a condition precedent by the failure to perform which the other party is relieved of his liability. In order to decide this question of construction One of the first things you would look to is, to what extent is the promise likely to affect the substance and foundation of the adventure which the contract is intended to carry out i.e. If the term is wholly important ... the parties must have intended for it to be a condition?
Bentsen v Taylor [1893] 2 QB 274, 280-281
NO SUBSTANTIVE PERFORMANCE IF PRIMARY PURPOSE NOT FULFILLED Bolton installed central heating for £560 in Mahadeva's house Central heating was defective — house was heated inadequately ... & fumes were given off, making presence in living room uncomfortable Bolton refused to correct it for £174 but sued for payment Mahadeva refused to pay any money at all. Bolton was entitled to nothing as there had been no substantial performance It is only when there is substantial performance that courts will award full payment minus the consequence of the breach Reasoning How to determine what is substantial performance? In considering whether there was substantial performance I am of opinion that it is relevant to take into account both The nature of the defects The proportion between the cost of rectifying them and the contract price Application If a central heating system when installed is such that it does not heat the house adequately and is such, further, that fumes are given out, so as to make living rooms uncomfortable, and if the putting right of those defects is not something which can be done by some slight amendment of the system, then I think that the contract is not substantially performed Furthermore, the sum of £174 was about 1/4 of the entire contract sum ... could not be that substantial performance had been carried out
Bolton v Mahadeva [1972] 1 WLR 1009 Facts
CONDITION BY MERCANTILE CONTEXT Buyer agreed to buy soya bean meal from sellers Sellers required by 30 June 1975 to lead goods on board a ship at a port sellers have to nominate Contract provided (cl 7) that buyers should give sellers "at least 15 consecutive day" notice of probable readiness of vessel and approximate quantity required to be loaded Last day for buyer to give requisite notice was June 12 ... buyers didn't give notice until 17 June, by which there was less than 15 days of loading period Sellers declared buyers to be in default & claimed damages for termination of contract on teh grounds that the term as to the giving of notice was a condition Holding Term as a condition ➔ Sellers could terminate Reasoning Courts tend to interpret time clauses in mercantile contracts as conditions In a mercantile contract where one party had to perform so that the other party is able to perform another term (condition precedent) that is essential to the contract The term as to the time of the performance of the former obligation would be treated as a condition Condition precedent: You need to notify me 15 days before ... so I may conduct essential things like nominate a port and load the ship ... and because what I do is essential, the timing for you to notify me so I may do those things is a condition. Lord Wilberforce ➔ Using the Hongkong Fir approach to determine if breach the timing of notification warrants termination is wrong ... because "a mercantile contract is totally different in character"
Bunge Corporation New York v Tradax Export SA [1981] 1 WLR 711 Facts
ENTIRE CONTRACT Sailor agreed to go on a voyage (10 weeks) Sailor was to be paid a sum of money (4x the average) for the voyage if he completed the voyage and continued to do his duty as a second mate Sailor died after 7 weeks on the 10 week voyage Wife sued for the payment Holding Wife could not claim payment — as this was an entire obligation Part performance was no performance at all - completion of the journey was a condition precedent to the obligation to pay.
Cutter v Powell (1795) 6 Term Rep 320, 101 ER 573
Charterers of 3 ships made deductions from hire payments which shipowners regarded as unjustified In retaliation, shipowners threatened to revoke the authority of Charterers to sign bills of lading on behalf of the masters of the vessels + instructed masters to issue "claused" bills of lading instead of bills with "freight pre-paid" Clause 9 provided that charterers were to sign bills of lading stating the freight had been correctly paid.This put the charterers in a commercially impossible situation. The charterers treated the owners actions as a termination of the charter party. The term breached was not a "condition" but an innominate term And since the threat of the owners would deprive the charterers of substantially the whole benefit of the charter, charterers could terminate (anticipatory breach) Reasoning Lord Wilberforce at 1000: No doubt that "masters would refuse to issue bills of lading freight pre-paid and not "claused" so as to refer to the charters, prima facie went to the root of the contract as depriving the charterers of substantially the whole benefit of the contract ... It was in fact the owners' intention to put irresistible pressure upon the charterers ... through the action they threatened to take. If the charterers had not given way, the charters would have become useless for the purpose for which they were granted"
Federal Commerce and Navigation v Molena Alpha Inc (The "Nanfri") [1979] AC 757, 778-779
CONDITION BY JUDICIAL PRECEDENT BUT WAIVER OF CONDITION Pf agreed to sell Df cotton yarn in specified quantities at specified intervals All deliveries were supposed to be completed by 15 Nov 1918 Pf was late in his deliveries & fell short of specified quantities each time Df complained but still accepted late deliveries ... thereby leading Pf to believe his contract still subsisted On 13 March 1919, Df, having given no previous notice requiring delivery in any reasonable time, wrote to Pf cancelling order and refused to accept subsequent deliveries. Pf sued Df for damages for refusing to take the remainder of the yarn Df argued that since 15 Nov 1918 was over, he could terminate the contract Holding Although time of delivery was of the essence of the contract ... Df by his letter had waived his rights to insist that delivery had to be completed on 15 Nov The letters between parties implied a new agreement that delivery might be made within an extended and reasonable period Df had not right to terminate Reasoning Timing of delivery is a condition by judicial precedent Per McCardie J: "In ordinary commercial contracts for the sale of goods the rule clearly is that time is prima facie of the essence with respect to delivery" "Now, if time for delivery be of the essence of the contract, as in the present case, it follows that a vendor who has failed to deliver within the stipulated. period cannot prima facie call upon the buyer to accept delivery after that period has expired. He has himself failed to fulfil the bargain and the buyer can plead the seller's default and assert that he was not ready and willing to carry out his contract. However, since facts are different — deviation from judicial presented allowed Df had waived the condition that the good should be delivered by 15 November by way of their letters (even though letters were written after 15 November). Thus Df debarred from asserting that the condition was still operative and binding and insisting on original terms.
Hartley v Hymans [1920] 3 KB 475 (McCardie J) Facts
SUBSTANTIVE PERFORMANCE Mr Isaac employed Mr Hoenig to decorate and furnish his flat for £750 When the work was done, there were problems with a bookcase and wardrobe, which would cost £55 to fix Mr Isaac refused to pay the £350 outstanding. Mr Isaac was anxious to insist that the Pf could only sue on a quantum meruit, as he had made a bad bargain - felt the contract price was unreasonably high - and wanted simply to pay a reasonable price for all the work which had been done. Mr Hoenig sued for payment Holding Contract was substantially performed Contractor was entitled to the contract price, less deduction for the defects £55 Reasoning The fact that the contract was a lump-sum contract did not necessarily mean that entire performance was a contract precedent to payment. Denning LJ: "When a contract provides for a specific sum to be paid on completion of specified work, the courts lean against a construction of the contract which would deprive the contractor of any payment at all simply because there are some defects or omissions. The promise to complete the work is, therefore, construed as a term of the contract, but not as a condition. It is not every breach of that term which absolves the employer from his promise to pay the price, but only a breach which goes to the root of the contract, such as an abandonment of the work when it is only half done. Unless the breach does go to the root of the matter, the employer cannot resist payment of the price. He must pay it and bring a cross-claim for the defects and omissions, or, alternatively, set them up in diminution of the price. The measure is the amount which the work is worth less by reason of the defects and omissions, and is usually calculated by the cost of making them good..."
Hoenig v Isaacs [1952] 2 All ER 176
Contract for hire of vessel for 24 months Seaworthy clause: ship to be "fitted in every way for ordinary cargo service" Ship was unseaworthy (engine was old & operation needed supervision, engine room understaffed, workers were inefficient) Repairs had to be carried out ... this left only 17 months during which ship was available for charterers Charterers (Pf) wanted to terminate as there had been a steep fall in freight rates Holding Seaworthiness clause was not a condition The test for whether the aggrieved party had a right to terminate was whether the breach would deprive the aggrieved party pf "substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings". Since the term of "unseaworthiness" is very large ... the solution here is not to consider whether the clause was a condition or a warranty ... but rather to consider the effects (i.e. couldn't ascertain whether parties intended for it to be condition / warranty)
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha [1962] 2 QB 26, [1961] 2 All ER 257 (Diplock LJ)
DIVISIBLE CONTRACT Pf & Df entered into contract where Pf would supply Df with min. 5000 tons of manganese ore monthly & were to be paid $6.50 per ton for operations at the mine Pf claimed for payment for work & labour Df denied liability because Pf did not supply Df with manganese ore according to specifications of not less than 5000 tons per month Holding Contractual obligations were divisible Reasoning There was no evidence that payment was not to pass until whole of contract had been fulfilled "This is clearly not a contract in which the consideration is one and entire nor is it so stated therein, nor can it be gathered by necessary inference that no consideration is to pass from one party till the whole of the obligations of the other party have been fulfilled. The contract seems to resolve itself into a number of considerations for a number of acts to be paid for at the agreed rates per ton..."
Tong Aik (Far East) Ltd v Eastern Minerals & Trading (1959) Ltd [1963] MLJ 322
CONDITION BY EXPRESS TERMINATION CLAUSE: UNREASONABLE CONSEQUENCE Df was appointed sole distributor of Pf's panel presses in the UK for a period of 4.5 years. Clause 7(b) of the agreement provided that "It shall be a condition of this agreement that (i) [Wickman] shall send its representatives to visit [the six large UK motor manufacturers] at least once in every week for the purpose of soliciting orders for panel presses..." Df failed to make weekly visits on a few occasions; Pf terminated agreement immediately, claiming that Df was in breach of a condition under clause 7(b). Holding The term was not a condition, even though it had been expressly stipulated to be so. Reasoning Lord Reid at 251: "Use of the word 'condition; is an indication-even a strong indication-of such an intention but it is by no means conclusive. The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result, the more unlikely it is that the parties can have intended it, and even if they do intend it the more necessary it is that they shall make that intention abundantly clear." Lord Wilberforce (dissenting — supported by Singapore): Cautioned against rewriting parties intentions — at 262 "The use as a promissory term of "condition" is artificial, as is that of "warranty" in some contexts. But in my opinion this use is now too deeply embedded in English law to be uprooted by anything less than a complete revision." And at 263: "The arbitrator's finding that these breaches were not "material" was not, in my opinion, justified in law in the face of the parties' own characterisation of them in their document."
L Schuler AG v Wickman Machine Tools Sales Ltd [1973] 2 ALl ER 39 (Lord Reid & Lord Wilberforce
WAYS TO IDENTIFY CONDITION Wong was managing director & CEO of Man Financial (Brokerage company) Wong was told to resign with immediate effect & an agreement was reached Wong was prohibited from Soliciting employment of certain employees from Man Financial for 7 mths Participating in or rendering advice to competitor for 7 mths Wong was to be given compensation provided he did not breach these terms Right before Wong was due to be paid compensation, Man Financial found out he had breached clauses in the agreement & declined to provide compensation Wong sued the company One of the issues was whether one of the clauses breached was found to be a condition, where Man Financial could terminate the contract Law on factors classifying term as a condition (1) Statute (2) Parties expressly state it is a condition (based on intentions ... not just label) (3) Availability of precedent (but courts are free to depart from foreign rulings) (4) Mercantile / Commercial contracts (esp. where it relates to timing) (5) [174]: The factors "are not exhaustive" ... "The actual decision as to whether or not a contractual term is a condition would, indeed, depend very much on the particular factual matrix before the court."
Man Financial (S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR 663,
CONDITION BY JUDICIAL PRECEDENT On May 25, 1965, shipowners let the steamer Mihalis Angelos to the charterer for voyage. Shipowners stated in the charter-party (i.e. contract) that the ship was "expected ready to load under this charter about July 1, 1965." There was a cancelling clause in case the vessel was not ready to load by July 20, 1965 Owners had no reasonable grounds to expect that the vessel would have been ready to load on July 1, because on May 25, 1965, the Mihalis Angeloswas in the Pacific on her way to Hong Kong, and could not reasonably be expected to reach to Haiphong till about July 13 or 14 Charterers sought to terminate the contract as the Vietnam war had broken out and charterer no longer had goods to ship Holding The "expected readiness" clause was a condition and, the owners having broken it in that on May 25, 1965, they could not reasonably have expected that the ship would be ready to load in Haiphong on July 1, 1965, the charterers were entitled to terminate the contract on July 17, 1965 Reasoning The charterers motivation to terminate was irrelevant The reason why charterers could terminate was because the "expected readiness" clause was a condition on the grounds that this had been settled by its own previous decisions Megan LJ Certainty in the law + measure of uniformity "It is surely much better, both for shipowners and charterers (and, incidentally, for their advisers)... to be able to say categorically: "If a breach is proved, then the charterer can put an end to the contract" rather than "ponder if breach went to the root of the contract" "Where justice does not require greater flexibility, there is everything to be said for, and nothing against, a degree of rigidity in legal principle"
Maredelanto Compania Naviera v Bergbau-Handel GmbH (The "Mihalis Angelos") [1971] 1 QB 164 (Megaw LJ)
PRI V SEC OBLIGATIONS Pf contracted with Df for night patrol service of Pf's factory for 4 visits a night One of Df's employees entered the factory, lit a fire to keep warm, burnt down factory There was exemption clause in contract ... which Df sought to rely on, which excluded Df from any loss suffered due to fire Pf argued that Df could not apply exemption clause because Df had committed a fundamental breach Holding Df could rely on the exception clause Reasoning Courts have the flexibility to give effect to exception clauses at common law even where a fundamental breach has occurred. In other words, a fundamental breach of contract does not necessarily and automatically destroy the efficacy of an exception clause because, whilst the primary obligations come to an end, the secondary obligation (to pay damages) remains and an exception clause might cover this last-mentioned liability.
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
4 SITUATIONS FOR TERMINATION June 2003, Sato (Pf) was appointed by LTA as the main contractor for a station Pf invited suppliers to submit quotations for the supply of concrete & eventually contracted with RDC concrete LTA instructed Sato to suspend RDC's supply of concrete due to the concrete showing an unacceptable amount of cube failure During suspension, Sato obtained its concrete from another supplier at rates higher than those stipulated in its contract with RDC Later, LTA approved Sato's request to allow RDC to resume concrete supply ... but RDC failed on at least 42 occasions to supply concrete ordered citing reasons such as shortages of raw materials & plant breakdowns Sato had to purchase concrete from alternative suppliers at higher rates Pursuant to contract with RDC, Sato deducted the cost differentials incurred from outstanding amounts due to RDC RDC maintained that it was not liable for these cost differentials because of the force majeure clauses Due to non-payment by Sato, RDC suspended supply of concrete ➔ Sato terminated the contract on the following grounds (i) That Df had continuously fallen short in supply and/or was unable to supply the concrete when ordered (ii) That Df's supply was unable to meet LTA's requirements Issue we are concerned with: (e) Whether Sato Kogyo was entitled to terminate the contract after RDC's suspension. Holding Courts allowed Sato to terminate the contract (pursuant to cl 8 of the contract) RDC was unable to provide uninterrupted supply as promised under the contract Cl 8: "In the event that your supply is unable to meet LTA's requirements, or you are unable to continue your supply, Sato Kogyo (S) Pte Ltd reserves the right to terminate your contract and retain and use both the retention sum and any outstanding payment due to you to seek for alternative source of supply ..." Situation 1: Where contract clearly and unambiguously provided for events pursuant to which a party was entitled to terminate the contract Situation 2: Where a party, by his words or conduct, clearly conveyed to the other party that it would not perform its contractual obligations at all Situation 3a: Where there was a breach of a term which the parties had designated as so important that any breach would entitle innocent party to terminate Situation 3b: Where the breach in question would deprive the innocent party of substantially the whole benefit of the contract
RDC Concrete v Sato Kogyo [2007] 4 SLR(R) 413, [89-113] (Phang JA)
CONDITION BY STATUTE Section 61(1) of Sale of Goods Act "warranty" means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated. Section 12(2) to 12(5) of Sale of Goods Act There are implied warranties (2) goods are free ... from any charge or encumbrance not disclosed or known to buyer before contract is made + buyer will enjoy quiet possession of goods (3)-(5) just conditions which state that anything unknown to buyer must be disclosed by seller Section 12(1), 13(1), 14(2), 14(3) and 15(2) There are implied conditions 12(1) ➔ Implied condition that seller has a rights to sell the goods 13(1) ➔ Where sale of goods by description ➔ Implied condition that goods will correspond with the description 14(2) ➔ Sells goods in course of business ➔ Implied condition that goods supplied are of satisfactory quality ... defined as (2A) Standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price, and all other relevant circumstances (2B) Includes state & condition of goods (fitness for the purpose which goods are commonly supplied, appearance and finish, freedom from minor defects, safety, durability) (2C) This condition does not extend when (a) Quality is specifically draw to buyer's attention before the contract is made (b) Buyer examines the goods before the contract is made, which that examination ought to reveal (c) In a sale by sample, what would have been apparent on a reasonable examination of sample 14(3) ➔ Where buyer makes known to the seller or the credit-broker ... there is an implied condition that the goods supplied are reasonably fit for that purpose whether or not that is a purpose for which such goods are commonly supplied Except where circumstances show buyer does not rely / unreasonable for him to rely on the skill or judgment of the seller or credit-broker 15(2) ➔ Contract for sale by sample ➔ Implied condition that (a) the bulk will correspond with the sample in quality Restricts non-consumer buyer's right to unreasonable reject goods for slight breach (1)(a)Where buyer would have the rights to reject goods by reason of breach ... but (b) the breach is so slight that it would be unreasonable for buyer to reject them, then, if buyer does not deal as consumer, the breach is not to be treated as a breach of condition but may be treated as a breach of warranty (2) This section applies unless a contrary intention appears in, or is to be implied from the contract (3) It is for seller to show that a breach fell within subsection 1(b)
Sale of goods act
CONSTRUCTION OF CONTRACT CLASSIFYING CONDITION Pf was the exclusive distributer of Deuter products thought agreement with Df (Deuter) There was a clause saying that products in competition with Df cannot be sold by Pf without prior written consent from Df This clause could be activated if Pf failed to sell US$1m of Df's goods ... and it got activated but ... Pf sold competing products without obtaining Df's written consent & Df terminated the agreement on those grounds Pf argued that his breach was not so serious as to entitle Df to terminate the agreement Holding Pf won — the clause was not a condition Reasoning Whether the non-competition clause is a condition Pf pleaded that it was not a condition & that it was a warranty which did not deprive Df of substantially the whole benefit that it intended to obtain It is therefore important to bear in mind the fact that the primary focus should be centred on ascertaining the intention of the contracting parties themselves by construing the actual contract itself (including the contractual term concerned) in the light of the surrounding circumstances as a whole. Non-Competition Clause was not a "cast iron prohibition against competing products" but was, rather, a "way of saying" that the Respondent wanted to ensure that the Appellant purchased at least US$1 m worth of its goods annually.
Sports Connection v Deuter Sports [2009] 3 SLR 883, [27-64] (Phang JA)
QUANTUM MERIT: MUST HAVE CHOICE TO ACCEPT Pf contracted with Df to build 2 houses & stables upon Df's land for a lump sum When buildings were in unfinished state, Pf claimed he had no money to continue with work & abandoned the contract Df built the remainder of house himself, using Pf's materials (which had been left on the land after Pf abandoned contract) Pf sought to claim on a quantum merit basis Holding Pf allowed to claim for the cost of the materials Pf not allowed to claim for rest of his performance Pf allowed to claim for cost of materials Df had an option to use the materials ➔ Restitutionary claim allowed Pf not allowed to claim for rest of performance AL Smith LJ: "When the buildings were still in an unfinished state the plaintiff... abandoned the contract. Under such circumstances, what is a building owner to do? He cannot keep the buildings on his land in an unfinished state for ever. (i.e. the building owner DID not have an option to accept or reject the partial performance - he had no choice but to accept it)
Sumpter v Hedges [1898] 1 QB 673
DIVISIBLE CONTRACT Df contracted with Pf where Pf was to command the vessel to explore the river Niger. Contract stated that Pf was to be paid a fixed pay every month Halfway along the journey, Pf refused to proceed further & abandoned the vessel Pf sued for his salary for the length of time which he commanded vessel Holding Allowed Pf to claim his salary up till the point that he abandoned the vessel Divisible contract — there was a cause of action for unpaid salary as each month arouse. Pollock J: The defendant's letter represented a counter-offer whose terms "supersede[d] or explain[ed] those of the previous letter of the defendant. There "per month" means "each month," or "monthly"; and gives a cause of action as each month accrues, which, once vested, is not subsequently lost or divested by the plaintiff's desertion or abandonment of his contract." Otherwise unjust result: "Further, if this meaning is not given, the result would be, that had the plaintiff died, or the voyage failed at the last moment, nothing would be payable by the defendant, because, according to his contention, the performance of the entire work contracted for was a condition precedent to the right to receive anything. This cannot have been intended."
Taylor v Laird (1856) 1 H&N 266, 25 LJ Ex 329