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Dies V. British Mineral And Financing Company Notes

BCL Law Notes > Restitution of Unjust Enrichment BCL Notes

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DIES V. BRITISH INTERNATIONAL MINERAL

AND

FINANCE COMPANY

FACTS Mr. Quintana, the plaintiff, being minded to buy a large quantity of Mauser rifles and the appropriate ammunition, entered into a contract with the defendant corporation, the terms of which are set out in the two letters dated November 14, 1936. In substance, the contract provided for the sale by the defendant corporation to Mr. Quintana of a number of Mauser rifles and a quantity of ammunition at the price of 270,000l. The goods were stated in the contract to be destined for Turkey. Delivery was to be made by December 15, 1936, which date was extended by mutual agreement, and it appears for the mutual convenience of both of the contracting parties, to January 15, 1937. As regards the price, 100,000l. was paid on or about November 14, 1936, and the plaintiff, Mr. Quintana, was to provide for the balance of the purchase price by means of an irrevocable credit to be opened in favour of the defendant corporation with a bank in Prague. Mr. Quintana paid to the corporation the sum of 100,000l. and no more, and it is this sum or part of this sum that the plaintiffs claim to be entitled to recover in this action. Notwithstanding the fact that he had made this substantial payment, for reasons which have not been disclosed to me Mr. Quintana was unable to take delivery of any of the rifles or ammunition sold to him. It is admitted in the statement of claim that the contract was broken by Mr. Quintana in that he never paid the additional 100,000l. or opened the additional credit of 35,000l., and was never ready or willing to take delivery. By a letter dated February 4, 1937, the defendant corporation, as they were lawfully entitled to do in view of the breach or breaches of contract by Mr. Quintana going to the root of the contract, elected to treat the contract as being at an end in the sense that it ceased to impose any obligation of further performance on either party. The relevant forfeiture clause in the contract provided: "If from any cause whatsoever independent of our volition (or will) and particularly a case of force majeure the performance of the present sales contract shall be rendered impossible we should have to refund to you the whole of the payments which you should have made to us with the exception of the sum of 6750l." (now admittedly 13,500l. by reason of the enlargement of the contract) HOLDING The plaintiff has no contractual right to recover

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