The Moorcock

The Moorcock (1889) 14 PD 64 is a

leading English contract law case which
created an important test for identifying
the main terms that the law will imply in
commercial, or non-consumer,
agreements, especially terms that are
"necessary and obvious...to give business
efficacy". Terms shall not be implied
merely because they appear "desirable and
reasonable". The case has been widely
cited in later cases and is narrowly
distinguished.[1]

The Moorcock

Court Court of Appeal

Citation(s) (1889) 14 PD 64

Court membership

Judge(s) sitting Bowen LJ

Keywords

Implied term, business efficacy

Facts
The owners of the ship called The
Moorcock contracted for space at a wharf
owner's jetty in order to unload The
Moorcock's cargo. While docked, the tide
went down to a point where the hull of the
ship hit a ridge, causing damage to the
ship. The plaintiff argued that the
wharfingers were responsible to ensure
that his vessel would remain safe while
docked. The wharf owners, in their
defense, claimed that there were no
provisions in the contract to ensure the
vessel's safety and that they could not
have foreseen the damage caused to the
vessel. The issue before the Court was
whether there can be any implied warranty
given the circumstances. The trial court
found that there was an implied warranty.

Judgment
The Court held for the ship owner, ruling
that there was an implied term that the
wharfingers had taken reasonable steps to
ascertain the state of the riverbed
adjacent to the jetty (not, as often stated,
an implied term that the jetty would be a
safe place to dock).[2] If the wharfingers
had taken such responsibility, then they
would have discovered the ridge of rock
and would have been under the duty to
warn the shipowners of the potential
hazard. Failure to warn would have been
actionable in tort. Therefore, this very
restricted term was sufficient to provide
protection to the shipowners as it would
have been necessary to give the
contracted business efficacy. Bowen LJ
stated that any implied warranties must be
based on the presumed intentions of the
parties. An implied warranty may be read
into a contract for reasons of "business
efficacy", and in order to maintain the
presumed intention of the parties. As
Bowen LJ said:

"In business transactions such

as this, what the law desires to
effect by the implication is to
give such business efficacy to the
transaction as must have been
intended at all events by both
parties who are business men;
not to impose on one side all
perils of the transaction, or to
emancipate one side from all the
chances of failure, but to make
each party promise in law as
much, at all events as it must
have been in the contemplation
of both parties that he should be
 responsible for in respect to
those perils or chances."

Bowen LJ looked at the presumed risks of

the agreement and who was expected to
bear them. The wharfingers were in such a
position that they could have discovered
there was a risk of damage to the ship,
and would have been in the best position
to judge the safety of the vessel.

See also
English contract law
Implied terms in English law

References
 1. Davies on Contract
2. See reference to this case in Smith v.
Burnett (https://en.wikisource.org/wiki/Smi
th_v._Burnett/Opinion_of_the_Court) , US
Supreme Court 173 US 430

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