Long v Lloyd [1958] EWCA Civ 3 (19 May 1958)

A lorry buyer discovered major defects after purchase. The seller offered to split repair costs, which the buyer accepted. The lorry broke down again. The court held that by accepting the offer and using the lorry, the buyer affirmed the contract.

Facts

The plaintiff, a haulage contractor, saw an advertisement for an Albion lorry which described it as being in ‘exceptional condition’. The defendant seller made further oral representations, including that the lorry was capable of 11 miles to the gallon. The plaintiff purchased the lorry for £850, paying a deposit. On the first journey, numerous serious defects became apparent: the dynamo failed, there was an oil leak, a wheel was cracked, and the fuel consumption was only five miles per gallon. The plaintiff contacted the defendant, who offered to pay half the cost of a reconstructed dynamo. The plaintiff agreed to this. Two days later, the plaintiff undertook a longer journey during which the lorry broke down completely due to more severe defects. The plaintiff then sought to rescind the contract and recover his payments, alleging misrepresentation.

Issues

The central legal issue was whether the plaintiff had lost his right to rescind the contract due to affirmation. Specifically, the court had to determine if the plaintiff’s actions after discovering the initial defects—namely, accepting the defendant’s offer to pay for half of the dynamo repairs and subsequently using the lorry for a business journey—constituted an affirmation of the contract, thereby barring rescission.

Judgment

The Court of Appeal allowed the defendant’s appeal, overturning the County Court’s decision in favour of the plaintiff. The judgment was delivered by Pearce L.J.

The court first considered whether the description of the lorry as being in ‘exceptional condition’ was an actionable misrepresentation or mere commendatory praise. It held that it was a representation of a specific fact:

Here was a lorry described as ‘in exceptional condition’, and although in a sense that is a laudatory expression, it does seem to us to be a representation of a specific fact – that this lorry was in exceptional condition.

However, the court found that even if there was an innocent misrepresentation giving a right to rescind, the plaintiff had affirmed the contract through his conduct. The crucial act of affirmation was not the discovery of the initial faults, but the plaintiff’s actions thereafter. The second journey, undertaken after the plaintiff knew of the lorry’s defects and had accepted the defendant’s offer to split repair costs, was deemed a final acceptance of the vehicle.

Pearce L.J. concluded:

In my judgment, the plaintiff’s acceptance of the defendant’s offer to pay half the cost of the reconstructed dynamo and his taking the lorry away on the long journey to Rochester amounted to a final acceptance of the lorry; that is to say, an affirmation of the contract. He had had ample opportunity by the end of the second journey to test the lorry, to find out its defects, and to make up his mind.

The court reasoned that this second journey was not merely a further test drive but an act of ownership, inconsistent with the right to reject the lorry. By using the lorry for his business after having knowledge of significant defects, the plaintiff had implicitly decided to keep the lorry and affirmed the contract, thereby losing his right to rescind it.

Implications

The decision in Long v Lloyd is a key authority on the doctrine of affirmation in contract law. It establishes that a party’s right to rescind a contract for misrepresentation can be lost through conduct that demonstrates an intention to continue with the contract. The case illustrates that accepting a benefit under the contract (such as the seller’s contribution to repairs) or continuing to use the goods after discovering the misrepresentation can constitute an unequivocal act of affirmation. It serves as a caution to purchasers that upon discovering a defect that may give rise to a right of rescission, they must act promptly and avoid any conduct that could be interpreted as accepting the goods and affirming the contract.

Verdict: The defendant’s appeal was allowed. The judgment of the County Court was set aside and the plaintiff’s claim for rescission was denied.

Source: Long v Lloyd [1958] EWCA Civ 3 (19 May 1958)