The Gazette 1961

A hire-purchase agreement negotiated by a dealer,

D., between a finance company, F., and the hirer,

H., provided that H. should take on hire from its

owner, F., a second-hand car, paying £125 deposit

and 30 monthly hire charges of £14

K)S.

id.

and

finally having an option to purchase for £i. The

finance company never saw the car, which had certain

apparent minor defects, and which D. agreed to put

right. The agreement provided that "No warranty

whatsoever is given by (F.) as to the age, state or

quality of the goods or as to fitness for any purpose

and any implied warranties and conditions are also

hereby expressly excluded." The car had so many

minor defects that it could not be used on the roads

and after about three months from delivery H.

rejected the car. F. sued H. for arrears of instalments

and damages and H. counterclaimed for the deposit

and instalments paid by him as money paid on a

consideration which had totally failed.

Held

that H.

was entitled to reject the car because F. was in

fundamental breach of the implied condition of

fitness and the exception clause did not protect F.

Accordingly, F. was not entitled to instalments or

damages for any time after rejection, but that the

consideration had not totally failed, so that H. was

not entitled to recover what he had paid and must

pay the instalments down to rejection. Yeoman

Credit

Apps. (1961) 2 All E.R. 281 Court of

Appeal (Pearce Harman & Davies L.J.J.).

Intoxicating Liquors Consumption

during prohibited

hours

supper licence—drink "ancillary" to meal.

(Licensing Act, 1953 s. 104 (i)

(a).).

The descrip–

tion in s. 104 (i)

(a)

of the Licensing Act, 1953, of

"premises

bona fide

used .

. for . . providing .

substantial

refreshment

to which

the

sale of

intoxicating liquor is ancillary" for which a supper

licence can be granted does not refer to the sale and

supply being ancillary to the total business done on

the premises, but is a description of the kind of meal

or refreshment which the premises must be

bona fide

intended to be used to provide. In other words, it

is descriptive of the meal.

It must not be a sale of

liquor under the cloak of meals but there must be

bona fide

meals to which the drink is ancillary.

considering an application by a club for a supper

licence, justices, on finding that the total receipts from

the sale of drink exceeded those for the sale of meals,

held that the drinks were not ancillary to the meals

and refused the licence.

On an application for

mandamus

held

that it must issue, as, applying the

proper test there was, on the facts, no doubt that the

provisions of the section were satisfied:

Liverpool Licensing Justices,

ex.

p. Tynan (1961)

i W.L.R. 837; 2 all E.R. 363 Divisional Ct.

Landlord and Tenant Act,

1954

new lease—occupation

by landlord premises required for. (Landlord and Tenant

Act,

1954,

3o(f)Cg).

In Aperbar

German (1961) 177 Estates Gazette

197 Dankwerts J.

held

that landlords who in resisting

an application for a new lease claimed that they

wished to use a restaurant for their business as

solicitors had not shown a firm and settled intention

to do so as the restaurant premises were unsuitable

for their business without reconstruction and they

had neither applied for planning permission nor

obtained estimates for work to be done.

'Northern Ireland—Vendor and purchaser—specific per

formance.

In Buckley

Irwin (1960) N.I. 98, the defendant,

who was regarded as a person who would require

protection and guidance in carrying out compara–

tively simple business affairs, agreed after a casual

conversation with the defendant to sell his farm and

tractor to him. In an action for specific performance

of the agreement or alternatively for damages for

breach of contract, McVeigh J. regarded the price

agreed as a substantial undervalue but not necessarily

as of such nature that without more evidence fraud

could be inferred but he refused to make an order

for specific performance on the ground that the

bargain was unethical and infringed the principles

of fairness which a court of equity requires to be

observed. Damages for breach of contract were

also refused on the ground that an agreement can

be rescinded on grounds other than actual fraud

and this includes a transaction in which the court is

of the opinion that it is unconscientious for a person

to avail himself of a legal advantage which he has

obtained.

Patents and designs—Patent—infringement.

(Eire) In Rawls and American Tire Machinery

Inc.

Irish Tyre and Rubber Services (1960) I.R. II,

the plaintiffs sought an injunction to restrain the

defendants from infringing a patent granted in

respect of an invention for individually re-lugging

worn or damaged lugs on the treads of heavy duty

or off-the-road tyres. On the question whether,

having regard to common general knowledge in the

art at the time of the patent, there was any inventive

ingenuity in the alleged invention or whether it

was a mere workshop improvement, Budd, J.

held

that for this purpose common general knowledge

must be taken as meaning common general know–

ledge in the Republic of Ireland and that, as the

alleged invention was a commercial success, supplied

a want, was widely used and superior to what went

before, it was an invention as distinct from a work-