Session Cases At 200: Tyger Tyger burning bright
One of the most striking of legal fictions, that of the escaped tiger, has stuck with Jackie McRae, who encourages readers to declare Scott & Sons v Del Sel the greatest entry in Session Cases. Vote for your top three here.
Every judgement tells a story. Law reports make those stories come alive. Powerful images illustrate legal principles. For me, the story that lingers longest is the one that never happened – the story of the escaped tiger and the fleeing milk girl.
Scott & Sons v Del Sel (1922 S.C. 592) concerned a firm of jute merchants in Dundee who, in 1917, were contracted to ship 2,800 bales of jute from Calcutta to Buenos Aires. The terms of the contract provided that any dispute that might arise between parties was to be settled by arbitration in Dundee.
Before the shipment was complete, the Indian government placed an embargo on exports. The purchasers of the shipment held the sellers to their bargain and sought to arbitrate in Dundee. The jute merchants argued that the actions of the Indian government effectively frustrated the contract. The parties fell out and found themselves in Edinburgh instead.
Frustration of contract rests upon the principle that, rather than simply something unexpected making a contract impossible to perform, a term or condition is implied into the contract itself which brings the contract to an end. The Court of Session was not persuaded that the Indian government’s intervention absolved the jute merchants from their obligations under contract. Lord Sands sets the scene:
“A tiger has escaped from a travelling menagerie. The milkgirl fails to deliver the milk. Possibly the milkman may be exonerated from any breach of contract; but, even so, it would seem hardly reasonable to base that exoneration on the ground that ‘tiger days excepted’ must be held as if written into the milk contract. …I think, however … that the doctrine of implied term of the contract must be given its logical consequence, and that, if contracts are to be held as frustrated in virtue of the failure of an implied term, the question whether there is such an implied term is a question arising under the contract.”
So, the case was subject to arbitration in Dundee. The parties appealed. They found themselves before the House of Lords in London. Their Lordships agreed with Lord Sands. The parties were sent back to Dundee.
There was never a tiger. There was no milkgirl. But the image – and the doctrine of frustration – stays with me. The case of “tiger days excepted” is more than just a vivid illustration of an unlikely implied term in contract. It provides a precept to live by.
Jackie McRae is a solicitor working with legal services at the Scottish Parliament. She is the present chair of the SCLR.