J Murphy & Sons Ltd v Johnston Precast Ltd [2008] EWHC 3024 (TCC)
The construction of a contract and liability for breach
Facts
The claimant was a main contractor for works which requested the defendant sub-contractor to tender for the supply of a pipe for the purpose of carrying water. The claimant faxed the defendant with an order for the pipe which referred to conditions overleaf. The defendant then sent an acknowledgement to the claimant containing a copy of its own terms and conditions and proceeded to make the pipe. The pipe was delivered and subsequently laid in foam concrete. However, four years later, the pipe burst. On excavation, it was discovered that a void around the pipe had increased the pressure on it to levels that it could not sustain. The claimant argued that the fax constituted the contract and that the subsequent acknowledgement did not incorporate the defendant’s terms and conditions into the contract. It further argued that the contract contained an implied term under section 14 of the Sale of Goods Act 1979 that the pipe would be fit for purpose in connection with installation using foam concrete.
Issues
The issues in this context were the point at which the contract was entered into, the terms implied into it and whether the defendant was in breach.
Decision/Outcome
It was held that the contract was entered into at the point that the fax was received because this was the time that both parties treated the contract as being in existence. The defendant’s terms were not incorporated and the claimants ‘terms overleaf’ were to be disregarded because they were never sent. There was agreement in respect of the specification of the pipe and there was no implied term that the pipe would be fit for purpose in a foam concrete environment. The defendant did not know that this was the manner of installation and even if it had, had no reason to believe that it would affect the efficacy of the pipe. In any event, it was the void that caused the leak and this could not have been anticipated. Therefore, there was no breach of contract and the defendant was not liable.
Updated 19 March 2026
This case note accurately summarises the decision in J Murphy & Sons Ltd v Johnston Precast Ltd [2008] EWHC 3024 (TCC), which remains good law as a first-instance authority on contract formation (the “battle of the forms”) and the implied term of fitness for purpose under section 14 of the Sale of Goods Act 1979.
Readers should be aware of one important legislative development: the Sale of Goods Act 1979 has been largely superseded, in the context of business-to-consumer contracts, by the Consumer Rights Act 2015. However, as this case concerned a commercial contract between two businesses, section 14 of the Sale of Goods Act 1979 remains the applicable provision in that context, and the article’s reference to it is therefore still correct. The 1979 Act continues to govern business-to-business contracts for the sale of goods.
The broader principles on battle of the forms discussed in this case should also be read alongside the Supreme Court’s consideration of contract formation principles more generally, though no subsequent authority has directly overruled the outcome here. The article remains substantially accurate for its stated purpose.
