316 / 322
GAZETTE
JULY/AUGUST 1984
parties as to essential elements of the
alleged contract or contracts; (2) that it
was true to say that the contract or
contracts in issue would not be
enforceable by action unless, for the
purposes of Section 4 of the Sale of
Goods Act 1893, Tradax had accepted
part of the goods sold and actually
received the same, or there existed a
sufficient note or memorandum in
writing of the alleged contract or
contracts signed by I.G.B. or their agent
on their behalf. Gannon J. in the High
Court had drawn attention to a letter of
21 April 1978 written by the Secretary of
the I.G.B., who is also the Solicitor of the
latter, to Tradax purporting to repudiate
the alleged contract or contracts. The
Secretary had in the first paragraph of
this letter referred to the telex from
Tradax to I.G.B. dated 24 March 1978
"confirming the agreed terms of the
above-mentioned two contracts for
20,000 tonnes and 5,000 tonnes
respectively of Irish Feeding Barley and
which provided for payment by letter of
credit maturing on 1 May 1978". Gannon
J. had concluded that this letter coupled
with the telex of 24 March 1978
constituted a sufficient note or
memorandum of the contract(s) made on
23 March 1978. The majority of the
Supreme Court held that Gannon J. had
been correct in so holding. Griffin J. and
Henchy J. noted, furthermore, that even
if no sufficient note or memorandum had
come into existence the requirements of
the above-mentioned Section 4 had been
complied with because Tradax had
accepted and received part of the goods
amounting to 1,871 tonnes to the value of
£180,560; (3) that (McCarthy J.
dissenting) the contention put forward by
I.G.B. that the letter or letters of credit
ought to have been opened or established
at the latest, by the first day of the
contractual delivery period, (which in this
case was 1 April 1978), and that failure on
the part of Tradax in this regard resulted
in a breach of a fundamental term of the
contract entitling I.G.B. to repudiate
same, was to be rejected. O'Higgins C.J.
summarised the position thus:
"Although the persons negotiating the
terms of the contract were not familiar
with all the technicalities of
documentary credit, they were of one
mind that payment for the barley
purchased was to be by a letter of
credit for each lot, maturing on 1 May
1978.
This date was specified notwith-
standing that the shippingperiodfor the
shipments from New Ross was to run
from 1 April 1978 until 30 June 1978.
This case is therefore to be
distinguished from the run of cases of
sales based on payment by
documentary credit, where the
furnishing by the buyer of the
documentary credit is a precondition
of the shipping or delivery of the
goods by the seller."
The cases that had been cited by I.G.B.
in support of their argument were the
English cases of
Pavia and Company
S.P.A.
-v-
Thurman-Neilsen
[1952] Q.B.
84;
Sinason-Feicher Inter-American Grain
Corporation -v- Oilcakes and Oilseeds
Trading Co.
[1954] I.W.L.R. and
lan
Stach Ltd.
-v-
Baker Bosely Ltd.
[1958] I
All ER 542.0'Higgins C.J. opined that the
facts of the latter mentioned cases were
distinguishable from those of the present
case in that they all involved transactions
relating to international trade and
envisaged a payment machinery
operating over the whole of a shipping
period. The machinery for payment in the
present case, by way of contrast, operated
"on a single day with a single payment
and it is specifically recognised that it
cannot operate for the first month of the
delivery or shipping period". The
majority of the Supreme Court (McCarthy
J. dissenting) were not prepared to imply
a term that the letter of credit of the kind
actually opened by Tradax on 24 April
1978 ought to have been opened by 1
April (the commencement of the drawing
period). Not only would it be impracti-
cable for the parties to have agreed to
such a term but the subsequent actions
and conduct of I.G.B. and Tradax belied
the existence of a common intention that
such a term would implicitly form part of
the contractual arrangement which they
had entered into. The absence of such a
term did not, in any event, affect the
business efficacy of the transaction.
(The
Moorcock Case
[1889] 14 P.D. 64,
Shirlaw
-v-
Southern Foundries
[1939] 2 All ER
124,
Reigate
-v-
Union Manufacturing
Company (Ramsbottom)
[1918] I.K.B.
592, and
Ward
-v-
Spivack Ltd.
[1957]
L.R. 40 considered) Higgins C.J.
concluded that all that could be implied
into the contractual arrangement entered
into in the present case was that Mr.
Fitzpatrick, the Managing Director of
Tradax, "on behalf of his company
should take reasonable and proper steps
to finance the opening of a letter of credit
which would mature for payment of £2.4
million on 1 May. If he had been dilatory
in securing the transfer of funds to his
own company or otherwise acted as if the
contractual obligation would not be
honoured, there might have been grounds
for complaint by the Defendants".
I.G.B. were accordingly not justified in
cancelling their contract with Tradax on
21 April 1978.
McCarthy J., in his dissenting
judgment, considered that the crucial
factor in the circumstances was not May
1, the date of actual payment, but rather
that I.G.B. could look forward to such
payment on that date. If it were the
situation that the letter of credit was
merely to be opened on that date, and
opening requires notification to the
drawer, then this would mean that the
documentary credit could not in theory
have been drawn upon, at the start of
banking hours on that day. McCarthy J.,
consequently considered that, to the
extent that it be accepted that a valid
contract was entered into on 23 March
1978, a term necessarily implied therein
was that a letter of credit or letters of
credit . . . would be opened at a bank in
Ireland before the 1st day of drawing
down fromthe Edenderry Store or not
less than five days before the date of
arrival of a ship at New Ross for the f.o.b.
transaction, whichever date be the earlier.
McCarthy J. thus reached the conclusion
that as Tradax had failed to comply with
the above mentioned term which he
considered to be fundamental to the
contract, I.G.B. had been justified in
sending a letter on 21 April 1978
repudiating the earlier contract of 23
March 1978.
Tradax Ireland Limited
-v-
Irish Grain
Board Limited - Supreme Court, 18
November 1983 [1984] ILRM 471.
Edwina Dunn
PLANNING/PRESCRIPTIVE
RIGHTS/NUISANCE
SUMMARY OF DECISION
No intention to deliberately flout the
Planning Law in the erection of a
galvanised shed — no mandatory
injunction granted for the removal of the
structure — bona flde effort made by
Defendant to eliminate nuisance —
Plaintiff entitled to damages for nuisance
by noise and dust.
The Plaintiff was an elderly lady living
on her own in an attractive residence in
Navan. Her next-door-neighbour set
about erecting a structure along the line
of the dividing wall of the two back
gardens and within hours a massive
corrugated iron workshop was obscuring
the landscape at the back of her house.
The Plaintiff sought interlocutory relief
and by Order of the High Court, dated 8
October, 1979, an undertaking on the
part of the second-named Defendant,
Patrick Reilly, was given whereby he
undertook not to do any further building
work and not to use any of the new
buildings and premises for his joinery
business but remaining at liberty to use
the old buildings for such joinery
business. When proceedings were
commenced against him he applied for
permission to build and this Application
was rejected by the Local Urban District
Council but, on Appeal to An Bord
Pleanala, permission was granted subject
to conditions requiring the Defendant to
reduce the length of the building by 15'/
2
feet so as to set it back some distance from
the Plaintiffs premises and also requiring
steps to be taken to suppress the level of
dust and noise emanating from the
structure. One of the most effective ways
of complying with the requirements of An
Bord Pleanala with regard to noise and
dust was to substitute or superimpose
blockwork in place of or over the
XIV