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Raffles v Wichelhaus

(1864) 2 H & C 906; [1864] EWHC Exch J19; 159 ER 375

Overview

Plaintiff agreed to sell defendant cotton described as arriving ‘ex Peerless from Bombay’. However, there were in fact two ships named the Peerless leaving from Bombay with a cargo of cotton. The plaintiff intended to refer to one of the ships and the defendant the other. The defendant refused delivery.

Court held that there was no contract because of ambiguity in the contract and because of evidence that the parties intended to refer to different ships – therefore no consensus ad idem.

Facts

Plaintiff agreed to sell defendant cotton described as arriving ‘ex Peerless from Bombay’. However, there were in fact two ships named the Peerless leaving from Bombay (one in October and one in December) with a cargo of cotton. The plaintiff intended to refer to one of the ships and the defendant the other. The defendant refused delivery.

The defendant argued:

There is nothing on the face of the contract to shew that any particular ship called the "Peerless" was meant; the moment it appears that two ships called the "Peerless" were about to sail from Bombay there is a latent ambiguity, and parol evidence may be given for the purpose shewing that the defendant meant one "Peerless" and the plaintiff another. That being so, there was no consensus ad idem, and therefore no binding contrac

Argument

The defendant argued that there was no 'consensus a idem' and therefore no binding contract:

There is nothing on the face of the contract to shew that any particular ship called the "Peerless" was meant; the moment it appears that two ships called the "Peerless" were about to sail from Bombay there is a latent ambiguity, and parol evidence may be given for the purpose shewing that the defendant meant one "Peerless" and the plaintiff another. That being so, there was no consensus ad idem, and therefore no binding contrac

Held

Court held that there was no contract because of ambiguity in the contract and because of evidence that the parties intended to refer to different ships.

Pollock CB: It is like a contract for the purchase of wine coming from a particular estate in France or Spain, where there are two estates of that name.

There was no consensus ad idem.