J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078

Oral promise overrode existing written contract conditions


The plaintiffs imported machines from Italy to England. The defendants were their forwarding agents. In terms of the contractual arrangements between the parties, the defendants had complete freedom regarding the transport of the goods to England. The defendants proposed a change in the method of transportation and gave the plaintiff an oral assurance that the machines would be shipped in containers carried under deck. No written provision was made for this change. One of the machines was packed on deck (rather than under deck) and was lost at sea.


The plaintiff sought damages. The defendants denied liability. At first instance, it was held that the oral assurance was not a legally binding warranty which could operate collaterally to the contract.


The Court of Appeal held that the oral assurance to ship future goods under deck constituted an enforceable contractual promise. This oral promise overrode the standard contract conditions because the promise was made in order to induce the plaintiffs to agree to the goods being carried in containers. Furthermore, the defendants were unable to rely on any exemptions in the written contractual terms. The Court referred to numerous authorities in which oral promises had been held binding despite the existence of written exempting conditions (e.g. Mendelssohn v Normand [1970] 1 QB 177). Therefore, because the defendants had promised to ensure that the goods would be shipped in containers which were stored under deck and this promise was broken by shipping the goods in containers on deck, they were liable for the loss. The plaintiff’s appeal was accordingly allowed.

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