ESU-Essex Court Chambers National Mooting Competition

Semi Finals Problem (Moot of 2001/2002)

BACKOFF v WIMBERS LTD
House of Lords

Wimbers Ltd are an established sports manufacturers specialising in tennis equipment. T. Hanmen Enterprises, who claimed to be a tennis coaching school, sent Wimbers an order for 100 top-quality tennis racquets. The order was on T. Hanmen Enterprises headed notepaper and was accompanied by a glossy brochure promoting the tennis school. In fact, no such firm existed and the brochure was a sham. Wimbers were aware however that the renowned tennis player, Tom Hanmen, had retired from professional sport in order to set up coaching schools. Wimbers Ltd supplied the racquets to the address on the headed notepaper.

Wimbers are subsequently visited by a woman who says that she is Anna Kutscomas, Tom Hanmen's former Wimbledon coach, and that she is acting as a representative for T. Hanmen Enterprises. She entered into negotiations with Wimbers Ltd for the purchase of 'Robocoach'-an extremely expensive automatic ball-serving machine. Wimbers' sales representative contacted the Lawn Tennis Association, who confirmed that Tom Hanmen's coach had indeed been Miss Anna Kutscomas. The salesman accepted a cheque in payment for the equipment.

Both the racquets and the 'Robocoach' were subsequently bought by Boris Backoff. Wimbers Ltd received no payment from T. Hanmen Enterprises for the racquets and the business cannot be traced. Also, the cheque for the 'Robocoach' was dishonoured and Wimbers Ltd have been unable to trace Anna Kutscomas. Wimbers Ltd therefore brought the present action against Boris for the return of the goods.

At trial it was established that Tom Hanmen had not in fact yet set up a coaching school though Wimbers Ltd had assumed he had. Forteighall J held:

  1. That following the decision in Cundy v Lindsey (1878) 3 App Cas 459, there was no contract between Wimbers Ltd and T. Hanmen Enterprises as Wimbers Ltd did not intend to accept an offer to purchase from the rogue firm, but from a coaching school run by the genuine Tom Hanmen.
  2. That applying the principle in Ingram v Little [1961] 1 QB 396 no property passed to Anna Kutscomas as the mistake as to her identity was crucial to the contract.
The Court of Appeal (Net, Line and Clay LJJ.) dismissed Boris Backoff's appeal but granted him leave to appeal to the House of Lords.

Boris Backoff appeals on the following grounds:

  1. That the case of Cundy v Lindsey can be distinguished, and that on the basis of the authority of King's Norton Metal Co Ltd v Edridge Merrett & Co Ltd (1897) 14 TLR 98 there was a valid contract between Wimbers Ltd and T. Hanmen Enterprises.
  2. That applying the principle established in Lewis v Averay [1972] 1 QB 198 Anna Kutscomas did receive good title to Robocoach, which she passed to the appellant.


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