Weekly review: 1st – 5th October

Contract: formalities: memorandum

A party is sufficiently named in a memorandum if identified as the person who made a certain payment where there is extrinsic evidence to identify the person who made the payment (Carr v Lynch).

Leases: repair: implied covenants

Apart from express contract, a tenant owes no duty to the landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husbandlike, or what is the same thing, a tenantlike manner (Warren v Keen).

Non-derogation from grant

The scope of the implied covenant ‘must be such as, in view of the surrounding circumstances, was within the reasonable contemplation of the parties at the time when the transaction was entered into, and was at that time within the grantor’s power to fulfil.’ (Harmer v Jumbil (Nigeria) Tin Areas Ltd).

Non-derogation from grant

The express terms of the lease and the surrounding circumstances at the date of the lease will be highly relevant in determining whether an act amounts to a derogation from grant. Where the action complained of is the use of the landlord’s retained land, the tenant cannot complain of uses to which the retained land could reasonably be put after the grant of the lease.

‘When assessing what the parties to a contract actually or must have contemplated, one should focus on facts known to both parties and statements and communications between them. A fact which could only have been known to one party could not, save in very unusual circumstances, be a legitimate part of the factual matrix. A thought locked away in the mind of the parties, or even perhaps of both parties, cannot normally be a relevant factor when assessing the parties’ understanding. In English law at any rate, contract is concerned with communication as well as mutuality’. (Neuberger J.) (Platt v London Underground Ltd).

Non-derogation from grant

A construction of the lease terms that would oust the operation of non-derogation in its entirety should be rejected (Petra Investments Ltd v Jeffrey Rogers plc)

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