Gregor Fisken Ltd v Carl (Rev 1) [2021] EWCA Civ 792 (28 May 2021)

A dispute arose over a rare Ferrari 250 GTO gearbox separated from the car sold for $44 million. The buyer sought specific performance to obtain the gearbox. The Court of Appeal held that the buyer was entitled to the gearbox but must pay the seller $500,000 plus shipping costs, affirming contractual interpretation principles regarding agency and signature.

Facts

The Appellant, Mr Bernard Carl, sold a rare 1962 Ferrari 250 GTO to the Respondent, Gregor Fisken Limited (GFL), for US $44 million. The car’s original gearbox had become separated and was held by a third party, Canepa, in California. The contract provided that if the Seller recovered the gearbox, he would deliver it to the Buyer, and if formal legal correspondence or litigation was required to secure its recovery, the Seller would be entitled to a fee of US $500,000. The contract described GFL as acting ‘as agent for an undisclosed principal’, but GFL signed without qualification and no such principal existed. Following recovery of the gearbox, the parties disputed the terms of delivery, examination, and payment, leading to litigation.

Issues

1. Standing to Sue

Whether GFL, having contracted ‘as agent for an undisclosed principal’ when no such principal existed, was a party to the contract entitled to enforce it.

2. Application of Sale of Goods Act 1979

Whether the contract for the gearbox constituted a sale of goods within the meaning of the Act.

3. Passing of Property

Whether property in the gearbox passed to GFL on Completion.

4. Place of Delivery

Whether the Seller was obliged to deliver the gearbox to GFL’s premises in London or merely tender it for collection in California.

5. Entitlement to US $500,000

Whether the Seller was entitled to the additional payment of US $500,000 for recovering the gearbox.

6. Repudiation

Whether GFL’s conduct amounted to repudiation of the contract.

Judgment

Standing to Sue

The Court of Appeal upheld the principle from The Elikon and Hamid v Francis Bradshaw Partnership that an unqualified signature prevails over a description as agent in the heading. Lord Justice Males stated:

“The signature cases demonstrate that where a person signs a contract with no qualification as to the capacity in which he signs, he will be a party to the contract unless the document makes it clear that he contracted as an agent.”

GFL was therefore a contracting party entitled to enforce the contract.

Sale of Goods Act

The Court held that the contract was a contract for the sale of goods including the gearbox, falling within section 2(1) of the Sale of Goods Act 1979.

Passing of Property

The Court disagreed with the judge below, holding that property in the gearbox passed to GFL on Completion pursuant to clause 5 of the contract. There was no reason to suppose a different intention regarding the gearbox.

Place of Delivery

The Court held that the Seller’s obligation under clause 7.6 was to make the gearbox available for collection by the Buyer wherever it was located, not to ship it to London. Males LJ stated:

“The natural meaning of those words, in my judgment, is that the Seller is required to make the gearbox available for collection by the Buyer wherever it may be.”

Entitlement to US $500,000

The Court disagreed with the judge below and held that Mr Carl was entitled to the US $500,000 fee under clause 7.10, as the clause applied regardless of whether the gearbox was recovered from Canepa or another party.

Repudiation

The Court held there was no repudiation by GFL. The email of 21 February 2018 was sent in an attempt to resolve the dispute and did not amount to repudiation.

Implications

This case reaffirms the long-standing signature principle in English contract law: an unqualified signature will generally bind the signatory as a principal party, regardless of descriptions elsewhere in the contract suggesting agency status. The case also illustrates the application of Sale of Goods Act provisions regarding passing of property and delivery obligations. The Court’s comments on the failure to mediate and the complexity of the list of issues provide useful guidance on litigation conduct and case management.

Verdict: The appeal was dismissed and the order for specific performance was affirmed, but varied so that GFL must pay Mr Carl US $500,000 plus US $6,410 shipping costs, with interest, before being released from its undertaking to store the gearbox.

Source: Gregor Fisken Ltd v Carl (Rev 1) [2021] EWCA Civ 792 (28 May 2021)