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EN
A prime example of a case where the objective approach was side-stepped was in Hartog…
Upon the seller’s refusal to deliver the hare skins on the basis of per pound pricing,…
At first sight, the decision sits uneasily with the Court of Appeal’s later decision…
“I am satisfied that it was a mistake on the part of the defendants or their servants which caused the offer to go forward in that way, and I am satisfied that anyone with any knowledge of the trade must have realised that there was a mistake.”(17)…
It must be noted, however, that English courts will not be too willing to consider…
Additionally, subjective considerations may have a role to play in the construction…
“What is accepted by counsel on both sides is that where, as here, the court is concerned with an oral agreement, the test remains objective but evidence of the subjective understanding of the parties is admissible in so far as it tends to show whether, objectively, an agreement was reached and, if so, what its terms were and whether it was intended to be legally binding. Evidence of subsequent conduct is admissible on the same basis. In the case of an oral agreement, unless a recording was made, the court cannot know the exact words spoken nor the tone in which they were spoken, nor the facial expressions and body language of those involved. In these circumstances, the parties’ subjective understanding may be a good guide to how, in their context, the words used would reasonably have been understood. It is for that reason that the House of Lords in Carmichael v National Power Plc [1999] 1 W.L..R 2042 held that evidence of the subjective understanding of the parties is admissible in deciding what obligations were established by an oral agreement.”(18)…
