Gregor Fisken v Carl

It is trite that, as a matter of general principle, where there has been a breach of contract, only parties to the contract are entitled to bring a claim. Identifying parties to the contract is therefore important.1 One would think that this is a straightforward exercise. Perhaps not. Middlemen are often involved in brokering deals between two contracting parties. An agent may sign the contract, without qualification, on behalf of his (undisclosed) principal. In such a case, who are the proper parties to the contract? The Court of Appeal discussed this question in Gregor Fisken Ltd v Bernard Carl.2

A contract for the sale and purchase of a rare supercar, a Ferrari 250 GTO Series 1 coupé, lay at the heart of this dispute. That the car was sold without its original gearbox was reflected in the purchase price. Under the contract, the defendant seller had undertaken to use his best efforts to recover and deliver up the missing original gearbox.