1961 ewca civ 7
Accordingly, it is impossible to determine ahead of time what type of term it is. Mr. Roskill recognised the weight of authority against him in seeking to make seaworthiness a condition of the contract the breach of which, in itself, was to be regarded as fundamental so as to entitle a charterer to accept it as a repudiation of the charter-party and to regard the charter-party as terminated, and he relied more strongly on his second argument. However, modern commercial custom has since established that some breaches, such as failure to meet a "notice of readiness to load" a sea cargo, will always be repudiatory.. It would be unthinkable that all the relatively trivial matters which have been held to be unseaworthiness could be regarded as conditions of the contract or conditions precedent to a charterer's liability and justify in themselves a cancellation or refusal to perform on the part of the charterer. In that case the question to be answered is, does the breach of the stipulation go so much to the root of the contract that it makes further commercial performance of the contract impossible, or in other words is the whole contract frustrated? But it is by no means true of contractual undertakings in general at common law. Walker Morris LLP. What is the yardstick by which this length of delay is to be measured? In the nomenclature of the eighteenth and early nineteenth centuries undertakings of the latter class were called "conditions precedent" and a plaintiff under the rules of pleading had to aver specially in his declaration his performance or readiness and willingness to perform all those contractual undertakings on his part which constituted conditions precedent to the defendant's undertaking for non-performance of which the action was brought. The problems in what event will a party to a contract be relieved of his undertaking to do that which he has agreed to do but has not yet done? ELJ 2018-1__1.korr. This is a question of fact fit for the determination of a jury. I do not see on principle how he can have some unilateral right to withdraw from the contract when the conduct of the other falls short of frustrating the contract. The cases referred to by Lord Justice Sellers illustrate this and I would only add that in the dictum which he cites from. No Acts. (1) The test whether the event relied upon has this consequence is the same whether the event is the result of the other party's breach of contract or not, as Mr. Justice Devlin pointed out in Universal Cargo Carriers Corporation v Citati. The cases referred to by Lord Justice Sellers illustrate this and I would only add that in the dictum which he cites from Kish v. Taylor (1912 Appeal Cases page 604, at page 617) it seems to me from the sentence which immediately follows it as from the actual decision in the case and the whole tenor of Lord Atkinson's speech itself that the word "will" was intended to be "may". In Bradford v. Williams (1872) 7 Exchequer, page 259, a case in which a ship's captain refused to load at the place stipulated for the month of September, 1871, but was willing to load at a port he was permitted to select prior to that month and it was held that the breach of the charter-party by the shipowner went to the root of the contract and the charterer was right in his refusal to load, Baron Martin said with much point. Those considered in the arbitration can now be reduced to two" (as in the present appeal) "first, the conception of a reasonable time, and secondly, such delay as would frustrate the charter-party....In my opinion the second has been settled as the correct one by a long line of authorities". Ampurius Nu Homes Holdings Ltd v Telford Homes (Creekside) Ltd  EWCA Civ 577; Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd  EWCA Civ 7; Sabic UK Petrochemicals Ltd & ors v Punj Lloyd Ltd & anor  EWHC 2916 (TCC) Post navigation. Last Update: 21 July 2019 Ref: 262811 . It is, with all deference to Mr. Ashton Roskill's skilful argument, by no means surprising that among the many hundreds of previous cases about the shipowner's undertaking to deliver a seaworthy ship there is none where it was found profitable to discuss in the judgments the question whether that undertaking is a "condition" or a "warranty"; for the true answer, as I have already indicated, is that it is neither, but one of that large class of contractual undertakings one breach of which may have the same effect as that ascribed to a breach of "condition" under the Sale of Goods Act and a different breach of which may have only the same effect as that ascribed to a breach of "warranty" under that Act. If, however, one party by his conduct frustrates the contract, the law says that the other party may treat the contract as at an end. The common law evolves not merely by breeding new principles but also, when they are fully grown, by burying their ancestors.