“Kett v. Shannon”- Intro
- Significant Irish Supreme Court decision
- concerns principles regarding actual and apparent authority
- liability of owner, for negligent 3rd party, who was lent a car without P’s express permission
- clarified the limits of apparent authority in Ireland
“Kett v. Shannon”- Facts and Dispute
English- owns garage- sells Fiat to Shannon- defective- Shannon returns- given Renault by English as temporary replacement- 3 days later- English needs Renault for new customer- Shannon returns Renault- No one there but Toomey, a mechanic- Toomey loans S a Mini WITHOUT ENGLISH’S AUTHORITY- Shannon crashes Mini- injures Kett- S found to be driving under English’s authority in IEHC, appealed to IESC
“Kett v. Shannon”- Judgement
- IESC- Henchy J- Overturned ruling of IEHC- not liable
KLI- Whether Toomy had authority, actual or apparent, to loan Mini - IESC- distinguish and define
NO A.A- no explicit/ implicit permission
No AP.A- No representation made by English to T that Toomey had such authority
Thus, English not liable, did not consent to S’s use of Mini.
“Kett v. Shannon”- Commentary
Reaffirms principles of APA- Relied on “Freeman & Lockyer”- representations made by P to T- relied on “Armagos LTD”- genuine belief of T insufficient- significant implications- underscores importance of clearly defining scope of authority- criticism, fairness perspective- no valid insurance- however, broadly accepted since, prevents undue extension of APA
“Kett v. Shannon”- Conclusion
Provides clarity- strict approach- prevents undue, and frankly unfair, liability of P for unauthorised actions by A- some unfortunate consequences as Kett left without adequate compensation but at the cost of establishing a crucial precedent- still followed today
“Lonsdale v. Howard and Harlam LTD. (2007)”- Intro
- Definitive UK authority- UKHL- Lord Hoffman
- Calculation of compensation, upon termination of agent, under 1993 EU Commercial Agents Directive
- Solved Dilemma;
> Fixed, 2 year, French inspired tariff on agency
> ‘Market Value Test’- Estimates what a hypothetical and reasonable buyer would pay for the goodwill and contacts created by the agency upon termination
“Lonsdale v. Howard and Harlam LTD. (2007)”- Facts and Dispute
-“Lonsdale” had worked for footwear manufacturer “Howard & Harlem” for over a decade.
-Following abrupt termination of agency, “Lonsdale” sought compensation based on the agency’s pre-termination value
- “H & H” argued that factors such as downturn in turnover and market prospects post-termination should proportionately reduce the award
- Thus, UKHL forced to deliberate between French, rigid and formulaic system, or a different approach
“Lonsdale v. Howard and Harlam LTD. (2007)”- Judgement
- UKHL established ‘market-value test’- hybrid approach of commendation and indemnity
- L. Hoffman: ‘Compensation must equal the sum a willing, informed purchaser would pay for the agency’s goodwill and contacts upon the date of termination,
- Test is engineered to automatically include market downturn, falling revenue and future prospects, incorporating all commercial realities to arrive on a ‘rational valuation’
- Drew on regulation 21 of CAD 1993, seeking fair method of compensation and avoiding French windfall tax
- UKHL felt a ‘mechanical and formulaic multiplier’ would ‘over compensate the agent in times of economic boom, and sell them short in periods of economic downturn’
“Lonsdale v. Howard and Harlam LTD. (2007)”- Commentary
“King v. Turnock (2000)”- Suggested UK was adopting rigid, formulaic approach- “Lonsdale” distances this- clarifies compensation should be based on fair market value and not an arbitrary multiplier
“Lonsdale”- Experienced Dissection in Legal-Academic circles…
- Plaudits:
Andrews: Much needed clarity, previously “grappling with uncertainty”
Smith: Alignment with broader principles of compensation- Ensure fairness based on economic realities.
- Critics:
> Laments lack of clear mathematical formula for calculation of comp.
>Disregard, continue to advocate for German- style indemnity
“Lonsdale v. Howard and Harlam LTD. (2007)”- Conclusion
- Ultimately, provides a balanced approach, prioritising market value over rigid formula
- Adopts a ‘hybrid system’ of compensation and indemnity
- Ensures agent is fairly compensated based on market realities
- Remains key authority in UK
- May face distinguishment in IRE, with potential paradigm shift post Brexit
“Harlingdon and Leinster LTD. v. Christopher Hull Fine Art LTD.”- Introduction
- Leading authority on ‘Sale by Description’ under S.13 of the “Sales of Goods Act (1890)” as amended
- Clarifies when a buyer can, and cannot, claim that goods sold did not correspond with their description
- Clarified to what extent reliance on the sellers description is required
- Ultimately, the UKCA ruled that, where a buyer has expertise and makes an independent judgement, they cannot claim breach of description under the 1890/1983 SGA
“Harlingdon and Leinster LTD. v. Christopher Hull Fine Art LTD.”- Facts and Dispute
- Sale of painting from one art dealer to another for £6,000
- Painting was a “Munter”, a German expressionist artist
- Seller attributed it to Munter, but explained that he was unfamiliar with the artists work, knew very little about German expressionism in general, and was himself relying on an old art catalogue which describe it as such (disclaimer)
- Buyer, who himself lacked a depth of knowledge in this regard, inspected the painting himself and determined it was real, with his receipt stating it was a Munter
- Post-acquisition, buyer had the painting examined by experts who deemed it a fake, worth between £50-£100
- Buyer sued for breach of S.13, sale by description.
“Harlingdon and Leinster LTD. v. Christopher Hull Fine Art LTD.”- Judgement
Central Issues- UKCA- Did description of painting as Munter constitute SBD under S.13, and was this description relied upon by the buyer- Ruling centred around;
> Description, or Opinion: Because art attributions are opinions—not factual descriptions—and here the seller’s disclaimer plus the buyer’s expertise meant “Munter” was non‑binding opinion.
> Reliance, Or Lack Thereof: UKCA held that only if the buyer actually relies on description shall S.13 apply; an experienced buyer who inspects and trusts their own judgment, instead of the seller’s description, is not covered by S.13.
“Harlingdon and Leinster LTD. v. Christopher Hull Fine Art LTD.”- Commentary
- UKCA ruling clarifies that, in the absence of reliance on a seller’s description, the buyer cannot claim goods are not as described
> In terms of consumer protection, scholars are divided on whether the ruling weakens CP or impacts it at all:
Smith- 1992- argues decision weakens CP by allowing the seller to avoid liability via disclaimers.
Andrews- 1994- Supports judgement, on basis of ancient principle ‘caveat emptor’, rendering that buyers with expertise should not be able to ignore their own due diligence and later claim misdescription
“Harlingdon and Leinster LTD. v. Christopher Hull Fine Art LTD.”- Conclusion
- Refined application of S.13
- Emphasised description must be relied upon for the claim to succeed
- Highlights the importance of due diligence in commercial transactions
- Remains key precedent, shaping how courts assess reliance, particularly in specialised markets
Aldridge v Johnson (1857) 7 E&B 885- Intro
- Key case in English commercial law, revolving around S.16 of the 1893 Act
- Ultimately decided in UKHL, with Lord Campbell CJ delivering the leading judgement
- In sum, accredited for clarifying the rather niche concept of ownership, and its transfer, in commercial law
Aldridge v Johnson (1857) 7 E&B 885- Facts and Dispute
- Aldridge (P) agreed to purchase 100K of barley from Johnson (D), which was roughly half of his bulk stock
- P was to pay “part in price, and part in beast (bullocks)”, and to provide the requisite marked sacks for storing the 100K of barley
- Post payment, D filled 155 out of 200 of the sacks, storing them separately from the bulk heap and tendering for delivery
- However, in the midst of P pressing for delivery, and D endeavouring (but failing) to secure it, the latter ‘untipped’ the sacks back into the heap, and subsequently went bankrupt.
Aldridge v Johnson (1857) 7 E&B 885- Judgement
-Ruling: UKHL- 2 Options- All or Some: Only barley in the marked sacks passed to P.
-Vesting Moment: Title passed when D appropriated specific bushels into those sacks.
-Decisive Act: D’s loading orders and marking = unequivocal appropriation.
-Residual Bulk: Unascertained remainder stayed D’s property.
-Liberal Delivery: Demonstrable intention + assent (orders to load + specific ascertainment) suffice—even without physical dispatch.
Aldridge v Johnson (1857) 7 E&B 885- Commentary
- Indicates broader interpretation- once goods are SA and UA, buyer’s interest is secured
- Suggests continuous physical segregation is not strictly necessary for the purposes of S.16
- Broadens traditional concepts, and endorses key policy point about mixed goods and vendors
- Andrews “Suggests an early, but flexible and pragmatic, judicial approach”
Aldridge v Johnson (1857) 7 E&B 885- Conclusion
- “Aldridge” broadens the twin imperatives of ‘appropriation’ and ‘ascertainment’ under the 1989 act.
- The flexibility and pragmatism displayed now applies to all B2B transactions, with courts more than willing to account for the actual realities of commercial practice
- Crystallises the importance of SA and UA under commercial law, regardless of permeance
C-310/17 Levola Hengelo BV v Smilde Foods BV- Introduction
- Few copyright cases spark as much curiosity as “Levola bv”, in which the CJEU was asked a rather novel question… is it possible to copyright a food’s flavour?
- At first blush, this may seem fanciful, or potentially even ludicrous, for how does one record flavour in ink or code?
-Yet, what unfurled cut right to the heart of EU harmonisation, and the Berne Convention
C-310/17 Levola Hengelo BV v Smilde Foods BV- Facts and Dispute
- 2007-grower/retailer concocts “Heksenkaas”, a creamy, herb flecked, cheese spread
- 5 years later, its inventor sold all IP related rights to “Levola BV”
- By 2017, rival “Smilde BV” began marketing ‘Witte Wievenkaas”, which Levola argued was near perfect copy, with the same melt in mouth and herby balance
- Levola specifically claimed ‘Smilde” had infringed by ‘copying the overall impression on the sense of taste’, thus turning the question onto whether such an aspect could even be copyrighted
C-310/17 Levola Hengelo BV v Smilde Foods BV- Judgement
- Relying on “Infopaq” and “Sieckmann”, the CJEU emphasised that copyright protects ideas in a fixed form, and not ideas, methods, or sensory experiences.
-The court declared that ideas were simply ideas or methods, with no ‘fixed’ form, as the end result is unpredictable and fluctuates with ingredients, facilities and even the taster’s own palate.
-Relying on research conducted by the Italian Government, the court reinforced their ruling by emphasising that, even with today’s science, flavour can still not be ‘fixed’ in an objective, reproducible and precise medium.
C-310/17 Levola Hengelo BV v Smilde Foods BV- Commentary
- Ensures a protection of expressions, not ideas, drawing a clear line between what one can objectively capture and subjectively taste
- Provides legal certainty for food producers, who are aware that their ideas and methods will not enjoy copyright protection
- Reinforces the principle of fixation, I.e the recording of the work on a stable, perceivable medium, as a central, core, non-negotiable tenant of copyright law
-Faces mixed reaction: Barrington and fidelity, Schmidt and overlooking, Garcia and Sui generis regime to. bridge the gap
