unlikely that such a breach of the contract terms could be argued to render the goods ‘defective’ in some way. They would not be defective in England (or Scotland) under section 14 of the Sale of Goods Act 1979, which concerns the quality of goods, and there would thus be no entitlement on the buyer’s part to a reduction in price.113 Nor would they be defective under German law. Under §433 of the BGB a seller is obliged, among other things, to procure the thing for the buyer free of material and legal defects, the concepts of material and legal defects being explained at §§434 and 435. As the goods shipped from the wrong port would still be suitable for the use intended under the contract, and for customary uses, they would not be materially defective under §434; and, as third parties could assert no rights over the goods, they would also be free of legal defect under §435. As the goods would not be defective, §441 on reduction of the price of the goods for defects would also be inapplicable, this provision allowing for a reduction in price in case of reduced value, the reduction to be ‘in the proportion in which the value of the thing free of defects would, at the time when the contract was entered into, have had to the actual value’.114

In the DCFR, the Filley problem would again boil down to whether or not the port of embarkation were part of the description of the goods. Article IV.A.-2:301 provides that goods do not conform with the contract unless, inter alia, they are of the description required by the contract, and are packaged in the manner required by the contract. The Commentary to the DCFR gives no hint as to the likely application of the relevant rules to a case like Filley, but, as suggested earlier, a modern court is unlikely to adopt the narrow point of view that the port of embarkation was intended by the parties as part of the description of the goods. A finding that it was would arguably ratify bad faith on the buyer’s part.

5.  Injunction (interdict)

Traditionally, the Common law and mixed systems have provided for separate remedies to enforce positive obligations (obligations to do something) and negative obligations (obligations not to do something). The former are enforced by specific performance (or specific implement as it is sometimes called), or, in the case of monetary sums, actions for an agreed

113So far as consumer contracts are concerned, SOGA, s. 48C stipulates simply that the price is to be reduced to an ‘appropriate amount’, without saying how the calculation of such an amount is to be undertaken.

114§441(3) BGB.

price, the latter by injunction (or interdict as it is sometimes called). Injunction/interdict is also the appropriate remedy to prevent any action (whether obligatory in nature or not) which would put a party in contravention of an obligation it owes.115 A perfectly valid claim may be, and frequently has been, defeated by a litigant’s choice of the wrong remedy. To avoid refusing claims for such a procedural nicety, there may be sense in the suggestion that all claims to enforce duties, whether of a positive or negative type, ought to be amalgamated in to a single remedy. German Law takes such an approach, providing for a single procedural remedy (the Leistungsklage) applicable in all cases in which a party is seeking enforcement of an express obligation of another to do or not to do something.116 This approach is also adopted by the PECL 117 and the DCFR.118

The question of whether actions to amalgamate both positive and negative obligations into a single remedy is an interesting one, though not of primary relevance for the present examination of the value of promises. Of greater relevance is perhaps the more fundamental question of whether it ought to be possible, as it presently is, to prevent by injunction threatened acts by B in favour of C which are merely inconsistent with an express promise made by B in favour of A. That it should be possible might seem to be so obviously the case as not to merit consideration, but given the traditional approach of some legal systems to construing promises strictly in accordance with the reasonable objective impression conveyed only by the words used, it is surely at least questionable to hold that a party who has promised merely to do x should also be held tacitly to have promised not to do y, an act inconsistent with x. Although most legal systems do adopt such an attitude119 through the grant of injunctions to prevent a threatened occurrence of y from taking place, it is perhaps somewhat inconsistent that, if the likelihood of y occurring is not discovered ahead

115For instance, in South African law, interdicts are available not only to ensure compliance with a negative contractual duty but also ‘to restrain the debtor from doing something which may prevent him from complying with his duties’ (Van der Merwe et al., Contract, p. 387).

116Anticipated actions which would be inconsistent with the obligation in question may be prevented by use of an injunction (Unterlassungsklage).

117Specific performance is available to enforce obligations ‘to do or not to do an act’: see comment A to Art. 9:102 of PECL.

118The DCFR simply states that the creditor is entitled to enforce specific performance of ‘an obligation’, without specifying whether it is to do or not to do something.

119Indeed, in a slightly different context (one not involving a third party), the principle of preventing acts inconsistent with a prior promise is the whole basis of the law of promissory estoppel.

of time, but B simply goes ahead and does y, it does not necessarily follow that y is held to have no legal effect. Take, for instance, a case where B has a contract to sell his car to A. If A discovers that B, in contravention of his contractual duty to sell the car to A, is about to sell the car to C, A can prevent this act by means of an injunction. On the other hand, if A merely subsequently discovers that B has entered into such a contract with C, the contract between B and C is not deemed to be void, as one might expect; on the contrary, it is a valid contract, albeit one that will put B in the unenviable position of having to breach either his contract with A or C. This position often strikes law students as puzzling: why should B, who has already promised to sell to A, still be allowed validly to contract to sell to C also? The injustice of this being permitted seems even greater when it is explained that A can prevent ahead of time an inconsistent promise from being given effect to, but cannot prevent C from taking the benefit of such a promise if performance has already been effected in C’s favour.120 An explanation sometimes offered for this apparent discrepancy of approach is that this simply demonstrates that the law is compelled to take account of the reality of transactions which have already happened. That, however, seems less convincing an explanation when one considers that purported transfers of stolen goods are treated as wholly invalid regardless of the ‘reality’ of what has occurred.

What position then ought the law to adopt in relation to these issues? It certainly seems reasonable that a promise by B to A to do x should be taken to mean that B is also bound not to do y, an act inconsistent with x. One can explain this either by reference to an implicit or tacit further promise by B (along the lines of ‘I promise to do x. I also promise not to do y’) or by reference to an external limitation on B’s promissory capacity, given the nature of B’s first promise, imposed by the requirements of justice. Either seems feasible, though the latter explanation has the benefit of avoiding the use of a legal fiction. If such a restriction on B’s promissory capacity seems reasonable, however, then it would also seem reasonable to deal with such a limitation consistently by holding that B can not only be injuncted from doing y but also that any attempt to do y should be treated as invalid so long as the prior promise to do x remains in force. Such a conclusion would not agree with the position adopted in many legal systems, however, where the contrary view is taken that, while B may be injuncted

120Except in limited cases: for instance, in terms of the UK Sale of Goods Act 1979, some (but not all) transfers of goods to third parties in contravention of A’s rights can be prevented by A even after the purported transfer has occurred.