Couchman v Hill
Court of Appeal
Citations:  KB 554;  1 All ER 103;  LJR 295; [1947-51] CLY 9199.
The defendant put up a heifer for auction. The auction sale catalogue described the heifer as ‘unserved’. It also stated that the sale would be subject to the auctioneers standard conditions, and that all lots must be taken regardless of any faults or errors of description. The standard conditions similarly stated that lots were sold ‘with all faults, imperfections and errors of description.’
The claimant asked both the defendant and the auctioneer to confirm that the heifer was unserved. Both answered ‘yes’. The claimant bought the heifer. It later turned out to be with calf. This was dangerous given the heifer’s young age. The heifer died as a result.
The claimant sued both the defendant and the auctioneer for breach of warranty. The defendant and auctioneer relied on the terms of the catalogue and standard conditions as excluding their liability for errors of description.
- Could the defendant and auctioneer rely on the exclusion clause?
The Court of Appeal held in favour of the claimant. The claimant, by asking for confirmation of the heifer’s status, made an offer for a contract warranting that the heifer was unserved. They implicitly made clear that they would only bid if they obtained such a warranty. The defendant and auctioneer accepted this offer, by confirming orally that the heifer was unserved and then accepting the claimant’s bid at the auction.
The parties had therefore entered into a collateral contract with the claimant. This contract did not contain any clause excluding liability for misdescription, and effectively overrode the standard terms and conditions.
This Case is Authority For…
Exclusion clauses in a main contract can be subverted if the parties enter into collateral agreements which do not contain the same clauses.
Scott LJ commented that any term describing a substantial ingredient of the subject matter of the contract is a condition.