Robertson v Wait (1853) 8 Ex. 299

Contract law – Shipping – Privity of contract


Robertson chartered for a ship, owned by the defendants, to cargo goods from Liverpool to Calcutta. There was a clause in the agreement between the parties which consigned the ship to E & Co. for the homeward freight, on the basis that they would pay commission for this. The defendants consigned the ship to E & Co. for the trip but agreed with another party that they could have the ship for the homeward trip. The plaintiffs brought a claim against the defendants for breaching their contract but did not establish the terms of the commission structure within the sub-agreement.


The overriding question for the court was whether the plaintiffs, in this instance, could claim for the breach of the contractual terms between the defendant and E & Co., despite the fact that the plaintiffs were not a party to the agreement. Further to this, the court had to consider the grounds of the plaintiff’s appeal on the basis that they could not explain or define the commission structure which was a feature of their agreement with E & Co.


The court held that the term in the contract was for the benefit for E & Co. and on this basis, as the plaintiffs had the agreement with E & Co., they were able to act as trustees to recover the benefit of the agreement. The court’s decision was unaffected by the fact that the commission structure, which had supposedly been agreed by the parties, could not be clearly defined.