Gregor Fisken Ltd v Carl (Rev 1)

Where a person signs a contract without qualifying the capacity in which they sign, the signature normally identifies them as a contracting party. A heading describing the signer as an agent will not displace that result unless the document makes agency clear. Background evidence may clarify an uncertain identity, but cannot contradict a clear contract. In a sale of specific goods, property may pass when intended even though the seller lacks possession. A buyer's right to examine goods does not necessarily require shipment to a preferred location. Contractual delivery obligations depend on the agreement. A recovery clause providing no additional compensation may still entitle the seller to separate remuneration for recovery efforts. Specific performance may be made conditional on payment where the goods are unique.

Gregor Fisken Ltd contracted with Bernard Carl for the purchase of a Ferrari 250 GTO. The contract described Gregor Fisken Ltd as agent for an undisclosed principal, although no principal existed. The car's original gearbox was absent and was later recovered from a third party.

Gregor Fisken Ltd sought specific performance requiring delivery of the gearbox. The High Court held that it was a contracting party, that the contract remained in force, and that the gearbox had to be shipped to London. It rejected Carl's claim to the additional US $500,000 payment. The appeal concerned contractual identity, sale of goods issues, passing of property, examination and delivery, remuneration, repudiation and the appropriate remedy.

Disposition. Males LJ, with whom Simler LJ and Peter Jackson LJ agreed, dismissed the appeal subject to varying the practical operation of the specific-performance order.

1. Contracting party. The signature principle is an established rule of objective construction. An unqualified signature ordinarily makes the signer a contracting party, and a description in the heading as agent does not prevail unless the document otherwise makes clear that the signer acted only as agent. Gregor Fisken Ltd signed without qualification, and the bill of sale also confirmed the sale to it. The court applied Hamid v Francis Bradshaw Partnership [2013] EWCA Civ 470 and The Elikon [2003] EWCA Civ 812. Extrinsic evidence may clarify an unclear identity, but cannot contradict a clear contract. The ex turpi causa argument was unavailable because it had not been pleaded or supported by findings below.
2. Sale, title and examination. The agreement was a sale of goods under section 2(1) of the Sale of Goods Act 1979. The US $44 million price was consideration for the GTO and its original gearbox; the US $500,000 payment was remuneration for recovery efforts. Under section 17, property in the gearbox passed on Completion. Gregor Fisken Ltd was entitled under section 34(1) to a reasonable opportunity to examine it, but examination could occur at Canepa's premises in California. Carl was not obliged to ship it to Italy or pay for that shipment.
3. Delivery and remuneration. Clause 7.6 required Carl to make the gearbox available for collection wherever it was located, rather than deliver it to London. Clauses 7.6 and 7.7 did not exclude the separate remuneration provisions in clauses 7.8 to 7.11. The US $500,000 payment therefore applied whether recovery was from Canepa or another third party and became payable when Gregor Fisken Ltd was in receipt of the gearbox.
4. Repudiation. Gregor Fisken Ltd's email, although mistaken as to who should bear the cost of shipment to Italy, was an attempt to resolve matters and did not show an intention not to be bound. Its litigation position disputing the US $500,000 payment was likewise not repudiatory. The contract remained in force.
5. Remedy. Specific performance was appropriate because the gearbox was unique. Under section 52 of the Sale of Goods Act 1979, the order could be made conditional. Gregor Fisken Ltd was to be released from its undertaking on payment of US $500,000, interest and Carl's cost of shipping the gearbox from California to London. Carl remained responsible for the US $25,000 paid to Canepa.

The court also gave obiter guidance that lists of issues should identify principal issues in a structured way, and that strong judicial encouragement to mediate merits careful consideration.

• Court of Appeal (Civil Division): In [2021] EWCA Civ 792, the appeal was dismissed subject to variation of the specific-performance arrangements.
• High Court of Justice, London Circuit Commercial Court: In [2020] EWHC 1385 (Comm), HHJ Pearce held that the contract remained in force, Gregor Fisken Ltd could enforce it, delivery was required to London, and Carl was not entitled to the additional US $500,000.