McCutcheon v. David MacBrayne, Ltd.; (House of Lords, 1964); CB 461; Notes 48
- Facts: Ps brother contracted w/D to send car to mainland via ship, ship sank. P says D should be liable b/c D failed to deliver the car. Ship sank b/c of negligent navigation. Risk agmt drawn up, but not given to P, who only signed receipt, given conditions on back of receipt. D says past conditions should apply.
- Terms: ferry car transportation agreement.
- Breach: ferry sinks; car is lost.
- Issue: does a ‘risk note’ previously signed by P for a prior instance hold P to those terms in this agreement?
- Rule: The fact that P had signed contract w/risk agmt in the past does not affect this specific transaction when form not used unless proof of actual/constructive knowledge of terms. Doctrinally, this is a duty to read—incentive for people to try to make an informed decision.
- Holding: Court says that here where the formalities weren’t followed, D would not get the benefit of something that wasn’t more than a formality. The court held that unless P signed a ‘risk note’ for this agreement the prior agreement would not hold P to those terms in this transaction. Judgment for P.