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 ACKNOWLEDGEMENTS

Grateful acknowledgement is made to all the authors and publishers of copyright material
that appears in this book, and in particular to the following for permission to reprint ma-
terial from the sources indicated. Extracts from Law Commission Reports, Consultation
Papers, and Discussion Papers are Crown copyright material and are reproduced under
Class Licence Number C2006010631 with the permission of the Controller of OPSI and the
Queen’s Printer for Scotland.
Cambridge Law Journal and the authors: extracts from Cambridge Law Journal (CLJ):
S Smith: ‘Contracting Under Pressure: A Theory of Duress’, 343 CLJ (1997); and extracts
from L’Estrange v. Graucob, 104 CLJ (1973).
Cardozo Law Review: extract from A W Brian Simpson, Contracts for Cotton to Arrive: The
Case of the Two Ships Peerless, 11 Cardozo L. Rev. 287 (1989).
Estate of A W B Simpson: extract from The Beauty of Obscurity: Raffles v. Wichelhaus and
Busch (1864) in Leading Cases in the Common Law (Oxford University Press, 1995), pp.
138–139.
Estate of P Birks: extract from ‘Equity in the Modern Law: An Exercise in Taxonomy’ (1996)
26 University of Western Australia Law Review 1.
Hart Publishing Ltd (an imprint of Bloomsbury Publishing Plc.): extract from Michael
Spence: Protecting Reliance: The Emergent Doctrine of Equitable Estoppel (Hart, 1999) ©
Michael Spence, 1999, Hart Publishing, an imprint of Bloomsbury Publishing Plc.
Incorporated Council of Law Reporting: extracts from the Law Reports: Appeal Cases
(AC), Chancery (Ch), Industrial Cases (ICR), Kings Bench Division (KB), Queen’s Bench
Division (QB), and Weekly Law Reports (WLR).
Informa Law: extracts from Salmond and Spraggon (Australia) Pty Ltd v Port Jackson
Stevedoring Pty Ltd (The New York Star) [1979] 1 Lloyd’s Rep 298, High Court of Australia.
Reproduced with permission of Informa Law, London.
Informa Maritime & Professional Publishing: extracts from Lloyd’s Maritime and
Commercial Law Quarterly (LMCLQ): N Bamforth: ‘Unconscionability as Vitiating
Factor’, LMCLQ 538 (1995); A Burrows: ‘The Contracts (Rights of Third Parties) Act and
its Implications for Commercial Contracts’, LMCLQ 540 (2000); R Halson: ‘The Offensive
Limits of Promissory Estoppel’, LMCLQ 257 (1999); extracts from Buildings Law Reports
(BLR) and extracts from Lloyd’s Law Reports (LLR).
LexisNexis: extracts from All English Reports (ER) © LexisNexis: Hartog v. Colin & Shields
[1939] 3 All ER 566, King’s Bench Division; Pharmaceutical Society of Great Britain v. Boots
Cash Chemists [1952] 2 All ER 456, Court of Appeal; and extracts from Hugh Collins: The
Law of Contract (4th edn, 2003); Reproduced by permission of RELX (UK) Limited, trading
as LexisNexis.
viii | Acknowledgements

Oxford University Press: Essays on Contract by Patrick S Atiyah (1990) 2527 words from
pp. 179–243. © P S Atiyah 1986; P S Atiyah: The Rise and Fall Freedom of Contract (1979);
P S Atiyah: An Introduction to the Law of Contract (6th edn, 2006); R Brownsword: Contract
Law: Themes for the Twenty-First Century (2nd edn, 2006); Quackery and Contract Law:
Carlill v Carbolic Smoke Ball Company in A W B Simpson: Leading Cases in the Common
Law (1996); R Stevens: Objectivity, Mistake, and the Parol Evidence Rule in A Burrows and
E Peel: Contract Terms (2007); G H Treitel: Some Landmarks of Twentieth Century Contract
Law (2002); S A Smith: Contracts for the Benefit of Third Parties: In Defence of the Third-Party
Rule, 7 OJLS 643 (1997) and extracts from Oxford Journal Legal Studies: S Gardner: Trashing
with Trollope: A Deconstruction of the Postal Rules in Contract, 12 OJLS (1992). © Printed by
permission of Oxford University Press.
Penguin Books Ltd: extracts from R Goode and E McKendrick: Goode on Commercial Law
(5th edn, Penguin Books, 2016), pp. 13–14, copyright © R M Goode 1982, 1995, 2004, 2010.
Reproduced by permission of Penguin Books Ltd.
Singapore Academy of Law: extracts from Chwee Kin Keong v. Digilandmall.com Pte Ltd
[2004] 2 SLR(R) 594 and Gay Choon Ing v. Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332 re-
produced with permission from the Singapore Academy of Law. All rights reserved. No
portion of the case may be used or reproduced without the prior written consent of the
Singapore Academy of Law.
Thomson-Reuters: extract from Lefkowitz v. Great Minneapolis Surplus Stores Inc 86 NW2d
689 (1957) (Supreme Court of Minnesota). Reprinted with permission of Thomson Reuters.
Extract from Waltons Stores (Interstate) Ltd v. Maher (1987) 164 CLR 387, High Court of
Australia. Reproduced with permission of Thomson Reuters (Professional) Australia
Limited, legal.thomsonreuters.com.au. This article was first published by Thomson Reuters
in the Commonwealth Law Reports and should be cited as Waltons Stores (Interstate) Ltd
v. Maher (1987) 164 CLR 387, High Court of Australia. For all subscription inquiries please
phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.
thomsonreuters.com.au/search. The official PDF version of this article can also be pur-
chased separately from Thomson Reuters. This publication is copyright. Other than for the
purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no
part of it may in any form or by any means (electronic, mechanical, microcopying, photo-
copying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted
without prior written permission. Enquiries should be addressed to Thomson Reuters
(Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.
com.au.
Extracts from R Christou: Boilerplate Clauses: Practical Issues (6th edn, 2012); B Coote:
Exception Clauses (1964); Edwin Peel: Treitel on The Law of Contract (14th edn, 2015); and
G H Treitel: Frustration and Force Majeure (2nd edn, 2004); extracts from Law Quarterly
Review: D Friedmann: ‘The Performance Interest in Contract Damages’, 111 LQR 628 (1995);
S A Smith: ‘In Defence of Substantive Unfairness’, 112 LQR 138 (1996); and extracts from
Property, Planning and Compensation Reports (P & CR): Boustany v. Pigott (1995) 69 P &
CR 298, Privy Council © Reproduced by permission of Sweet and Maxwell Ltd, a division of
Thomson-Reuters Limited.
 Acknowledgements | ix

University of Chicago: extract from the Journal of Legal Studies 14:2 (1985) ‘Quackery
and Contract Law’ by A W B Simpson. © by the University of Chicago. All rights reserved.
0047-2530/85/1402-0008$01.50
John Wiley and Sons: extracts from Legal Studies: the Journal of the Society of Public Teachers
of Law: J Adams and R Brownsword: ‘The Ideologies of Contract Law’, 7 Legal Studies 205
(1987); S Bright: ‘Winning the Battle Against Unfair Contract Terms’, 20 Legal Studies
331(2000); and P Luther: ‘Campbell, Espinasse and the Sailors: Text and Context in the
Common Law’, 19 Legal Studies 526 (1999). Reproduced with permission of Blackwell
Publishing.
The Yale Law Journal Company: extract from L L Fuller and William R Perdue Jr: ‘The
Reliance Interest in Contract Damages’, 46 The Yale Law Journal 52 (1936). Reproduced with
the permission of the Yale Law Journal.
The publishers would like to acknowledge everybody who kindly granted us permission to
reproduce extracts and quotations throughout this text. Every effort was made to trace copy-
right holders, but we would be pleased to make suitable arrangements to clear permission for
material reproduced in this book with any copyright holders whom it has not been possible to
contact.
 GUIDE TO USING THE ONLINE
RESOURCES

This book is accompanied by online resources on an open-access website designed to sup-

port the book. The website can be found at:
www.oup.com/uk/mckendrick9e

The online resources that accompany this book provide students and lecturers with ready-
to-use teaching and learning materials. These materials are free of charge and are designed
to maximize the learning experience.
 Guide to Using the Online Resources | xi

Extra material
In-depth material on topics such as illegality and incapacity has been provided in electronic
format for those interested in finding out more about these areas of contract law. A symbol
in the text highlights when additional material can be found as part of the online resources.

Web links
A selection of annotated web links, chosen by the author, have been provided to point stu-
dents in the direction of important research, statistical data, and classic texts to keep them
informed of the developments in contract law, both past and present.

Regular updates
This resource allows students and lecturers to access changes and developments in the law
that have occurred since publication of the book. These are added to the website with page
references to easily enable readers to identify material which has been amended or super-
seded. Updates allow students to stay informed of key developments without having to buy
a new book.

Self-test multiple choice questions

A test bank of 150 multiple choice questions, with answers and feedback, enables students to
test themselves on the material they have learned.
 CONTENTS

Table of Cases xxii

Table of Legislation xxxvi

1 INTRODUCTION 1

1. The Aims of this Book 1

2. The Scope of the Law of Contract 3
3. Transactions 7
4. Transnational Contract Law 8
5. Conflicting Policies 9

PART I FORMATION

2 AGREEMENT: OBJECTIVE OR SUBJECTIVE? 17

1. Introduction 17
2. The Objective Theory Illustrated 20
3. The ‘Snapping Up’ Cases 30
4. The Role of Fault 33

3 OFFER AND ACCEPTANCE 42

1. Introduction 42
(a) General Application 44
(b) The Intention of the Parties 48
(c) The Inter-Related Nature of the Rules 49
(d) The Time at which the Contract was Created 49
(e) Offer and Acceptance and the ‘Will Theory’ of Contract 50
2. Has an Offer Been Made? 52
(a) Advertisements 54
(b) Displays of Goods for Sale in a Shop 61
(c) Tenders 67
(d) Auction Sales 74
3. What Constitutes an Acceptance? 78
(a) Must the Acceptance Coincide Exactly with the Terms of the Offer? 79
(b) Must the Acceptance be Communicated to the Offeror? 93
xiv | Contents

(c) Prescribed Method of Acceptance 97

(d) Can Silence Amount to Acceptance? 98
(e) The Postal Rule 101
(f) Acceptance in Unilateral Contracts 109
(g) Acceptance in Ignorance of an Offer 111
4. Has the Offer Been Withdrawn or Otherwise Terminated? 112
5. Conclusion 119

4 UNCERTAIN AND INCOMPLETE AGREEMENTS 120

1. Introduction 121
2. Cases in Which it Has Been Held that the Agreement is too Vague or
Uncertain to be Enforced 130
3. Cases in Which the Courts Have Held the Agreement to be Valid and
Binding 133
(a) Make Use of the Criteria or Machinery that Have Been Agreed by the
Parties in Order to Resolve the Uncertainty or to Clarify the Word or
Phrase that is Expressed in Vague Terms 133
(b) The Intervention of Statute 138
(c) Severance 138
(d) Implication of Terms 139
4. Conclusion 141

5 CONSIDERATION AND PROMISSORY ESTOPPEL 142

1. Introduction 143
2. Consideration: Its Scope 144
(a) Consideration Must be Sufficient 145
(b) The Pre-Existing Duty Rule 154
(c) Past Consideration 198
(d) Consideration Must Move from the Promisee 207
(e) Establishing the Necessary Link 207
3. Estoppel: Its Scope 212
(a) Estoppel: A Brief Definition 213
(b) Two Leading Cases 214
(c) The Ingredients of Promissory Estoppel 219
(d) The Different Types of Estoppel 224
(e)  Unifying the Estoppels 226
(f) Locating Estoppels 231
4. The Future of Consideration 235
 Contents | xv

6 FORMALITIES 245

1. Introduction 245
2. The Reasons for Formal Requirements 247
3. Formal Requirements in English Contract Law 249
(a) Formal Requirements Which are Sufficient to Render the Promise
Binding 249
(b) Formal Requirements Which are Necessary in Order to Render a
Contract Binding 251
4. The Future of Formal Requirements 257

7 INTENTION TO CREATE LEGAL RELATIONS 259

1. Introduction 259
2. Domestic Agreements 260
(a) The Scope of the Presumption 264
(b) Rebutting the Presumption 266
(c) The Rationale Behind the Presumption 268
(d) The Relationship with Consideration 269
3. Social Agreements 271
4. Commercial Agreements 273
(a) Rebuttal of the Presumption 275
(b) Did the Parties Intend to Contract? 277
5. The Future of the Doctrine of Intention to Create Legal Relations 278

PART II TERMS

8 THE TERMS OF THE CONTRACT 283

1. Introduction 284
2. Two Preliminary Issues 285
3. Terms and Representations 285
(a) Three Illustrative Cases 287
(b) Drawing the Threads Together 296
4. The Parol Evidence Rule 297

9 INCORPORATION OF TERMS 303

1. Introduction 304
2. Incorporation by Signature 304
xvi | Contents

3. Incorporation by Notice 312

4. Incorporation by Course of Dealing and by Custom 321

10 IMPLIED TERMS 328

1. Introduction 329
2. Terms Implied by Statute 329
3. Terms Implied from Usage or Custom 334
4. Terms Implied by the Courts 337
(a) Terms Implied in Fact 337
(b) Terms Implied in Law 346
5. Conclusion 360

11 THE INTERPRETATION OF CONTRACTS 363

1. Introduction 364
2. The Evolution of the Law 364
3. Restatements of the Applicable Principles 366
4. The Scope of the Applicable Principles 371
(a) The Importance of Principles 371
(b) The Objective Nature of the Test 372
(c) The ‘Factual Matrix’ 372
(d) The Exclusionary Rules 373
(e) The Iterative Nature of the Process 375
(f) Something Has Gone Wrong with the Language 376

12 BOILERPLATE CLAUSES 380

1. Introduction 380
2. Boilerplate Clauses and Standard Terms 381
3. Boilerplate Clauses: Some Illustrations 386
(a) General Clause 386
(b) Retention of Title Clauses 386
(c) Price Escalation Clauses 387
(d) Interest 388
(e) Force Majeure Clauses 388
(f) Choice of Law Clauses 390
(g) Arbitration Clauses 391
(h) Jurisdiction Clauses 392
(i) Hardship Clauses 393
(j) Entire Agreement Clauses 394
 Contents | xvii

(k) Termination Clauses 395

(l) Assignment 395
(m) Exclusion and Limitation Clauses 395

13 EXCLUSION CLAUSES 396

1. Introduction 397
2. Interpretation 399
(a) Excluding Liability in Negligence 402
(b) Fundamental Breach 404
(c) Limitation Clauses 406
(d) Indirect or Consequential Loss 407
3. The Unfair Contract Terms Act 1977 408
4. Two Illustrative Cases 430
5. Conclusion: Defence or Definition? 440

14 UNFAIR TERMS IN CONSUMER CONTRACTS 444

1. Introduction 445
2. Part 2 of the Consumer Rights Act 2015 446
3. Enforcement 468

15 GOOD FAITH 472

1. Introduction 472
2. Walford v. Miles 474
3. Good Faith: The Negative View 480
4. Good Faith: The Neutral View 482
5. Good Faith: The Positive View 484
6. Good Faith in the Performance of a Contract? 488

PART III SETTING THE CONTRACT ASIDE

16 MISTAKE 499

1. Introduction 500
2. Mistake: The Difficulties 501
3. Mistakes and Formation 503
(a) Knowledge of a Mistake as to the Terms of the Contract 503
(b) Latent Ambiguity 504
xviii | Contents

(c) Mistake as to Identity 505

4. Common Mistake 519
5. Mistake in Equity 535
6. Reform? 542
7. Rectification 544
8. Non Est Factum 550

17 MISREPRESENTATION 557

1. Introduction 558
2. What is a Misrepresentation? 559
(a) Statements of Opinion 562
(b) Statements of Intention and Inducement 565
(c) Statements Made by Conduct 567
3. Duty of Disclosure 570
4. Rescission 575
(a) What is Rescission and When is it Available? 575
(b) Loss of the Right to Rescind 581
5. Damages 586
(a) Section 2(1) of the Misrepresentation Act 1967 587
(b) Common Law Negligence 597
(c) Deceit 597
(d) Section 2(2) of the Misrepresentation Act 1967 598
(e) Rescission and an ‘Indemnity’ 602
6. Exclusion of Liability for Misrepresentation 603

18 DURESS 607

1. Introduction 608
2. Duress of the Person 609
3. Duress of Goods 614
4. Economic Duress 616
5. Conclusion 630
(a) Lack of Consent 630
(b) Illegitimacy 633

19 UNDUE INFLUENCE 635

1. Introduction 636
2. Three-Party Cases 639
 Contents | xix

3. Two Leading Cases 640

4. The Post-Etridge Cases 655

20 UNCONSCIONABILITY AND INEQUALITY OF BARGAINING POWER 662

1. Introduction 662
2. Unfairness in the Cases 664
3. The Role of Statutes 668
4. A General Principle? 669
5. The Search for Coherence 671

21 FRUSTRATION AND FORCE MAJEURE 680

1. Introduction 681
2. Construction of the Contract 691
3. Foreseeable Events 693
4. Self-Induced Frustration 696
5. Frustrating Events 703
(a) Impossibility 703
(b) Illegality 703
(c) Frustration of Purpose 704
6. The Effects of Frustration 713
7. The Basis of Frustration 726

PART IV REMEDIES FOR BREACH

22 BREACH OF CONTRACT AND TERMINATION 737

1. Introduction 738
2. What is a Breach of Contract? 738
3. The Existence of a Right to Terminate 741
(a) Breach of a Condition 742
(b) Breach of a Warranty 757
(c) Breach of an Intermediate Term 758
(d) Making the Choice 764
(e) Termination Clauses 768
(f) The Relevance of Good Faith 772
(g) Some Comparative Reflections 774
4. Election 776
xx | Contents

5. Loss of the Right to Terminate 777

6. Anticipatory Breach 779

23 DAMAGES 791

1. Introduction 792
2. Damages: The Different Measures 793
3. The Performance Interest 802
4. The Reliance Interest 825
5. The Restitution Interest 832
6. Non-Pecuniary Losses 834
7. The Date of Assessment 845
8. Limiting the Protection of the Performance Interest 847
(a) Remoteness 847
(b) Mitigation 872
(c) Contributory Negligence 875
9. Negotiating Damages and Account of Profits 880
10. Punitive Damages 887
11. Agreed Damages Clauses 888
12. Deposits and Part Payments 895

24 SPECIFIC PERFORMANCE 901

1. What is Specific Performance? 901

2. Specific Performance and the Adequacy of Damages 902
3. The Range of Factors to Which the Courts Will Have Regard 905
(a) Personal Service Contracts 906
(b) Mutuality 908
(c) Undue Hardship 909
4. Co-operative Insurance Society Ltd v. Argyll Stores (Holdings) Ltd 911
5. Injunctions 922
6. Future Directions 923

PART V THIRD PARTY RIGHTS

25 THIRD PARTIES 929

1. Introduction 930
2. Contract Structures 931
 Contents | xxi

3. Third Parties and the Acquisition of Contractual Rights 933

(a) The General Rule at Common Law: Third Parties Have No Right of
Action 934
(b) The Rights of the Promisee 940
(c) The Exceptions to Privity 958
(d) Third Parties, Exclusion Clauses, and Exclusive Jurisdiction Clauses 968
(e) The Case for Reform 982
(f) Contracts (Rights of Third Parties) Act 1999 989
4. Third Parties and the Imposition of Liabilities 1006
5. Conclusion 1010

Online Resources: Additional Chapters 1013

Incapacity 1013
Illegality 1013
Index 1015
 TABLE OF CASES
Where extracts from cases are reproduced, the relevant page numbers are shown in bold.
A v Bottrill [2002] UKPC 44, [2003] 1 AC 449 … 888
A Roberts & Co Ltd v Leicestershire County
Council [1961] Ch 555 … 546
A Schroeder Music Publishing Co Ltd v Macaulay
[1974] 1 WLR 1308 … 7
Actionstrength Ltd v International Glass Engineer-
ing IN.GL.EN SpA [2003] UKHL 17, [2003] 2
AC 541 … 255–6
Adams v Lindsell (1818) 1 B & Ald 681 … 101
Adderley v Dixon (1824) 1 Sim & St 607 … 902
Addis v Gramophone Co Ltd [1909] AC 488 … 887
Adler v Dickson [1955] 1 QB 158 … 981
AEG (UK) Ltd v Logic Resource Ltd [1996]
CLC 265 … 319, 398
African Export-Import Bank v Shebah Exploration
& Production Co Ltd [2017] EWCA Civ 845,
[2017] BLR 469 … 412
African Minerals Ltd v Renaissance Capital Ltd
[2015] EWCA Civ 448 … 378
Ailsa Craig Fishing Co Ltd v Malvern Fishing
Co Ltd [1983] 1 WLR 964 … 406
Air Transworld Ltd v Bombardier Inc [2012]
EWHC 243 (Comm), [2012] 1 Lloyd’s Rep
349 … 427
Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR
1326 … 219, 220, 221
Al Nehayan v Kent [2018] EWHC 333
(Comm) … 495
Albazero, The [1977] AC 774 … 958
Albert v Motor Insurers’ Bureau [1972]
AC 301 … 272–3
Alec Lobb (Garages) Ltd v Total Oil (Great Britain)
Ltd [1983] 1 WLR 87 … 633, 665
Alev, The [1989] 1 Lloyd’s Rep 138 … 176, 608
Alf Vaughan & Co Ltd v Royscot Trust plc [1999] 1
All ER (Comm) 856 … 633
Alfred McAlpine Construction Ltd v Panatown
Ltd [2000] UKHL 43, [2001] 1 AC 518 … 392,
803, 812–20, 821–5, 843, 931, 951–2, 955, 957,
958, 985
Ali v Petroleum Company of Trinidad and Tobago
[2017] UKPC 2, [2017] ICR 531 … 345
Allcard v Skinner (1887) 36 Ch D 145 … 637,
640–3, 644, 653, 657, 659
Alliance Bank v Broom (1864) 2 Dr & Sim
289 … 212
Allied Marine Transport Ltd v Vale do Rio Doce
Navegacao SA (The Leonidas D) [1985] 1 WLR
925 … 101
Aluminium Industrie Vaasen BV v Romalpa
­Aluminium Ltd [1976] 1 WLR 676 … 386–7
Amalgamated Investment & Property Co Ltd v
John Walker & Sons Ltd [1977] 1 WLR
164 … 704
Amalgamated Investment & Property Co Ltd v
Texas Commerce International Bank Ltd [1982]
QB 84 … 224, 225, 226, 483
Amiri Flight Authority v BAE Systems plc [2003]
EWCA Civ 1447, [2004] 1 All ER (Comm)
385 … 427
Anangel Atlas Compania Naviera SA v
Ishikawajima–Harima Heavy Industries Co Ltd
(No 2) [1990] 2 Lloyd’s Rep 526 … 175
Andrews v Australia and New Zealand Banking
Group Ltd (2012) CLR 205, [2013] BLR
111 … 894
Andrews v Hopkinson [1957] 1 QB 229 … 932
Andrews Bros (Bournemouth) Ltd v Singer and
Co Ltd [1934] 1 KB 17 … 399
Andriciuc v Banca Românească SA (Case
C-186/16) … 450, 454
Anglia Television v Reed [1972] 1 QB 60 … 827–8
Annulment Funding Co Ltd v Cowey [2010]
EWCA Civ 711, [2010] BPIR 1304 … 654
Antons Trawling Co Ltd v Smith [2003] 2 NZLR
23 … 175
Appleby v Myers (1867) LR 2 CP 651 … 725
Araci v Fallon [2011] EWCA Civ 668, [2011] All
ER (D) 37 (Jun) … 922
Arcos Ltd v E A Ronaasen and Son [1933] AC
470 … 744
Ark Shipping Company LLC v Silverburn Shipping
(IoM) Ltd [2019] EWCA Civ 1161 … 765, 768
Arkwright v Newbold (1881) 17 Ch D 301 … 571
Armour v Thyssen Edelstahlwerke [1991] 2
AC 339 … 387
Arnold v Britton [2015] UKSC 36, [2015]
AC 1619 … 363, 366, 368–9, 375, 377, 378
Associated Japanese Bank v Crédit du Nord SA
[1989] 1 WLR 257 … 532, 533, 535–6
Astley v Austrust Limited (1999) 197 CLR 1 … 879
Astley v Reynolds (1731) 2 Str 915 … 615
Astor Management AG v Atalaya Mining plc
[2017] EWHC 425 (Comm), [2017] 1 Lloyd’s
Rep 476 … 495
Astrazeneca UK Ltd v Albemarle International
Corporation [2011] EWHC 1574 (Comm),
[2011] 2 CLC 252 … 406
Atlas Express Ltd v Kafco [1989] QB 833 … 633
Attica Sea Carriers Corporation v Ferrostaal
Poseidon Bulk Reederei GmbH (The Puerto
Buitrago) [1976] 1 Lloyd’s Rep 250 … 787, 788
Attorney-General v Blake [2000] UKHL 45, [2001]
1 AC 268 … 820, 821, 822, 823, 880, 886–7, 888
Attorney-General of Belize v Belize Telecom Ltd
[2009] UKPC 10, [2009] 1 WLR 1988 … 345, 868
Attrill v Dresdner Kleinwort Ltd [2011] EWCA
Civ 229, [2011] IRLR 613 … 174
Attrill v Dresdner Kleinwort Ltd [2013] EWCA
Civ 394, [2013] 3 All ER 607 … 60, 260, 273
Atwood v Small (1838) 6 C & F 232 … 561
Avery v Bowden (1855) 5 E & B 714 … 780
Avon Insurance plc v Swire Fraser Ltd [2000] 1 All
ER (Comm) 573 … 596

Avraamides v Colwill [2006] EWCA Civ 1533,
[2007] BLR 76 … 992
Avrora Fine Arts Investment Ltd v Christie,
­Manson & Woods [2012] EWHC 2198 (Ch),
[2012] PNLR 35 … 438
Axa Sun Life Services plc v Campbell Martin Ltd
[2011] EWCA Civ 133, [2011] 2 Lloyd’s
Rep 1 … 394, 415
Aziz v Caixa d’Estalvis de Catalunya, Tarragona I
Manresa (Case C-415/11) [2013] 3 CMLR 89 …
448, 450
B & S Contracts and Design Ltd v Victor
Green Publications Ltd [1984] ICR 419 …
389, 616
BHP Petroleum Ltd v British Steel plc [2000] 2
Lloyd’s Rep 277 … 406
Bainbridge v Firmstone (1838) 8 A & E 743 … 150,
153
Baird Textile Holdings Ltd v Marks and Spencer
plc [2001] EWCA 274, [2002] 1 All ER (Comm)
737 … 227, 229, 230, 277–8
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265–9, 271
Banco de Portugal v Waterlow & Sons Ltd [1932]
AC 452 … 873
Bank of Credit and Commerce International SA
v Ali [2001] UKHL 8, [2002] 1 AC 251 … 372,
398, 400, 401, 402, 405
Barbudev v Eurocom Cable Management Bulgaria
EOOD [2012] EWCA 548, [2012] 2 All ER
(Comm) 963 … 133
Barclays Bank plc v Fairclough Building Ltd [1995]
QB 214 … 875–8
Barclays Bank plc v O’Brien [1994] 1
AC 180 … 639, 640
Barry v Davies (Trading as Heathcote Ball & Co)
[2000] 1 WLR 1962 … 74–7, 78
Barton v Armstrong [1976] AC 104 … 609–12,
613, 618, 630, 631
Bates v Post Office Ltd [2019] EWHC 606 (QB) …
319, 495
Bay Hotel and Resort Ltd v Cavalier Construction
Co Ltd [2001] UKPC 34 … 821
Behnke v Bede Shipping Co Ltd [1927] 1 KB 649
… 903
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519–24, 525–6, 535–6, 539, 541
Bence Graphics International Ltd v Fasson UK Ltd
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Borough Council [1990] 1 WLR 1195 … 6,
68–71, 119
Table of Cases | xxiii
Blue v Ashley [2017] EWHC 1928
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Bolton v Madden (1873) LR 9 QB 55 … 207
Borden (UK) Ltd v Scottish Timber Products Ltd
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Bou-Simon v BGC Brokers LP [2018] EWCA
Civ 1525, [2019] 1 All ER (Comm) 955 … 345
Boustany v Pigott (1995) 69 P & CR 298 … 666–7,
668
Bowerman v Association of British Travel Agents
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BP Exploration Co (Libya) Ltd v Hunt (No 2)
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BP Gas Marketing Ltd v La Société Sonatrach
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Bradford Third Equitable Benefit Building Society
v Borders [1941] 2 All ER 205 … 570
Braganza v BP Shipping Ltd [2015] UKSC 17,
[2015] 1 WLR 1661 … 358
Bremer Handelsgesellschaft mbH v Vanden
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133 … 691
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Brimnes, The [1975] QB 929 … 97, 114
Brinkibon Ltd v Stahag–Stahl und
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AC 34 … 95–6, 107
British & American Telegraph Co v Colson (1871)
LR 6 Exch 108 … 106
British Car Auctions v Wright [1972] 1 WLR
1519 … 74
British Columbia Saw Mill Co v Nettleship (1868)
LR 3 CP 499 … 850
British Crane Hire Corporation v Ipswich Plant
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British Fermentation Products Ltd v Compair
Reavell Ltd [1999] BLR 352 … 397–8, 413
British Red Cross v Werry [2017] EWHC 875
(Ch) … 532
British Steel Corporation v Cleveland Bridge and
Engineering Co Ltd [1984] 1 All ER 504 …
6, 91–3, 140
British Sugar plc v NEI Power Projects Ltd (1997)
87 BLR 42 … 371
British Westinghouse Electric and Manufacturing
Co Ltd v Underground Electric Railways Co of
London Ltd [1912] AC 673 … 872
Britvic Soft Drinks Ltd v Messer UK Ltd [2002] 1
Lloyd’s Rep 20 … 423–4, 873
Brogden v Metropolitan Ry Co (1876) 2 App Cas
666 … 101
Bryen & Langley Ltd v Boston [2005] EWCA Civ
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Bunge Corporation New York v Tradax Export SA,
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All ER 1082 … 846
Butler Machine Tool Co Ltd v Ex–Cell–O
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401 … 45, 80–5, 86–91, 119, 386, 387
xxiv | Table of Cases
Byrne & Co v Van Tienhoven & Co (1880) 5 CPD
344 … 105, 107, 109, 113–14, 117
Byron v Eastern Caribbean Amalgamated Bank
[2019] UKPC 16 … 346
C & P Haulage v Middleton [1983] 1 WLR
1461 … 829–31, 832
CCC Films v Impact Quadrant Films Ltd [1985]
QB 16 … 826
C H Giles & Co Ltd v Morris [1972] 1 WLR 307
… 907–8
CTN Cash and Carry Ltd v Gallaher [1994] 4 All
ER 714 … 628, 629
Caledonia North Sea Ltd v British Telecommuni-
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553 … 408
Campbell v Frisbee [2002] EWCA Civ 1374, [2003]
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Campbell Discount Ltd v Bridge [1962]
AC 600 … 894
Canada Steamship Lines Ltd v The King [1952]
AC 192 … 364, 400–1, 404
Canary Wharf (BP4) T1 Ltd v European Medicines
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Car and Universal Finance Co v Caldwell [1965] 1
QB 525 … 579–81
Cargill International Trading Pte Ltd v Uttam Galva
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Carillion Construction Ltd v Emcor Engineering
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Carlill v Carbolic Smoke Ball Company [1893] 1
QB 256 … 49, 55–8, 59, 60, 67, 93, 109, 260
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Carter v Boehm (1766) 3 Burr 1905 … 483
Cavanagh v Secretary of State for Work and
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Cavendish Square Holding BV v Talal El Makdessi
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Central Railway Co of Venezuela v Kisch (1867)
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Centrovincial Estates plc v Merchant Investors
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544–5, 549
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Classic Maritime Inc v Lion Diversified Holdings
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Colour Quest Ltd v Total Downstream UK plc
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Commercial Banking of Sydney v R.H. Brown and
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Commissioner for the New Towns v Cooper
(Great Britain) Ltd [1995] Ch
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Commonwealth of Australia v Amann Aviation
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170 CLR 394 … 230, 232
Compagnie Commerciale Sucres et Denrées v C
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Compagnie Noga d’Importation et d’Exportation
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Compaq Computer Ltd v Abercorn Group Ltd
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Cook v Wright (1861) 1 B & S 559 … 150–1
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Co-operative Insurance Society Ltd v Argyll Stores
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911–19, 920, 926
Another random document with
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But Junior shook his head. "I'm very sorry," he said, "but I can't do it."
And though the crab kept on coaxing and coaxing, he wouldn't give
in.
"Now look here," said Mrs. Sand Witch, "if we keep this up the dinner
will be cold. So run along, Bertha, and maybe after Junior has had a
good dinner he will change his mind."
"No, I won't," said Junior. "And what is more I want to go back to the
beach right off. I told you I was going sailing with my father in a half
hour."
"But," replied Mrs. Sand Witch, as she smacked her lips over the last
of her sandpaper, "that was before you were engaged to be
married."
"I'm not engaged to be married," stormed the boy; "and if I had
known you were this kind of a person I'd never have come down
here."
"Now, now," said Mrs. Sand Witch, "I'm every bit as old as your
mother, and I know what is best for you. You wouldn't like me to
spank you, would you?"
And when she said that, Junior decided he might as well give himself
up for lost. Soon as a person began to say she knew what was best
for you, you might as well make up your mind, you are done for.
"Good gracious!" he said to himself, "whatever shall I do?"
And when dinner was over, and he went into the park again with the
little Sand Witches, he was so depressed he wouldn't play or do
anything; and finally, Ham Sand Witch got tired trying to cheer him
up and went off to play with some other sand witches, leaving Junior
and Lettuce Sand Witch sitting on a bench side by side.
Lettuce Sand Witch, swinging her legs violently, was looking at him.
Then she slid along the bench and snuggled up close. "I'm awfully
sorry," she said. "And I think it's dreadfully mean to make you marry
Bertha. She's not pretty like I am, is she? Wouldn't you rather marry
me?"
And the minute she said that, Junior had a bright idea. He didn't
want to marry Lettuce Sand Witch any more than he wanted to marry
the grateful Bertha, one was as ugly as the other; but maybe if he let
on he wanted to, she might tell him how to get back to the beach. So
he snuggled up to her when she snuggled up to him.
"Maybe I would," he said, smiling at her. "But I couldn't possibly do it
until I asked my mother. You tell me how to get back to the beach,
and if my mother says I can marry you, I'll come right back and do it."
"Oh, will you, really?" cried Lettuce Sand Witch, springing to her feet
and clapping her hands. "Then I'll tell you how to get to the beach, or
at least the way my mother gets there. She stands up straight like
this; holds her nose with her left hand and puts her right hand above
her head; then she blows out her breath instead of drawing it in; and
up she goes. And now, you won't forget to come back?"
"No, indeed," said Junior, "I'll do just as I promised. If my mother tells
me to come back and marry you, I'll do it. And now, good-by, and
thank you very, very much."
The next instant he stood up as straight as he could, grasped his
nose with his left hand, put his right hand above his head, blew out
his breath, and bing—he shot up through the sand, and found
himself right alongside of his bucket and shovel.
He looked about. Everything was just the same. The sun was
shining, people were still in bathing, but nowhere among them could
he see his father, or mother, or sister. And then, presently they came
tearing over the sand toward him.
"You bad boy!" scolded Mrs. Jenks. "Where have you been? We've
been terribly worried! How dare you go off by yourself? Where were
you, I say?"
"Why—why—" began Junior.
Then he stopped. What was the use? He knew they wouldn't believe
him. And if he asked his mother if he could go back and marry
Lettuce Sand Witch as he promised he would ask her, she would say
he was sick or something, and make him go to bed. So he just dug
his toes into the sand and said nothing.
And that is why poor little Lettuce Sand Witch is still waiting
underneath the sand for Junior Jenks to come marry her. And that is
why Junior Jenks keeps looking about so queerly when he plays on
the beach by himself. He is taking no chances of another sociable
sand witch popping up in his neighborhood.
 THE FOUNTAIN OF RICHES
No matter what other mistakes you may make in your lifetime, never
make the mistake of renting a cottage from an ogre. If you do, the
chances are you will bitterly regret it, as did Hak, the aged
woodcutter.
Hak, was an old, old man who lived in a forest with his little
grandson, Omo, whose father and mother were dead; and who
earned his living by cutting down trees and chopping them into
firewood. The cottage that Hak and his grandson lived in belonged to
an ogre, and the rent the old man paid for it was not very much; and
as long as he kept his health and strength, he got along very nicely.
But one day, while cutting down a tree he tripped and fell, and before
he could get out of the way the falling tree struck him and broke his
leg. And after Omo had dragged him back into the cottage all he
could do was to lie on his bed and groan, and wait for the leg to get
well.
"Goodness gracious!" he said to the boy, "What shall we do? I won't
be able to work for days and days, and there will be the rent to pay,
to say nothing of the doctor's bill."
"Well," said Omo, "the rent and the doctor's bill will have to wait. So
don't worry."
"I have to worry," replied the old man. "The doctor may wait for his
bill, but the person who owns this cottage will not wait for his rent; no
sir-ee."
Then he told Omo that the cottage belonged to an ogre. "He let me
have it very cheap, but only for a certain reason. What do you think
that reason was?"
"I don't know," replied Omo. "What was it?"
"That he should be allowed to make you into a dumpling for dessert
if I did not pay the rent every month without fail."
"Oh," said Omo, his eyes very big. "I don't wonder you are worried. It
—it makes me feel worried, too! Why did you ever make such a
bargain?"
"Well," said his grandfather, groaning worse than ever, "I never
thought for a minute that I would ever have my leg broken, and I was
so very, very poor I simply had to have a cottage cheap. But now, I'll
not only lose the cottage, but you also. I guess I might as well die."
"Don't you do it!" responded Omo. "I haven't been made into a
dumpling yet, and I'm not going to be, if I can help it. I'll go into the
city and get the doctor, and while I'm there I'll try to earn enough
money to pay the rent."
But Omo's grandfather only shook his head. "You're a plucky boy,
Omo," he said, "but you'll never be able to do it. How can a boy of
seven earn anything?"
"Well, I can try, can't I?" said Omo. "You can't do anything if you don't
try."
So pulling his cap down over his curls, and tucking some bread and
cheese into his pocket, he set off for town. But when he arrived at
the doctor's office he found that the waiting room was crowded with
people, and that he would have to wait his turn.
"Oh, dear," he sighed, as he sat down next to a little old lady with a
frilled bonnet on her head, "this is most unfortunate. My grandfather
ought to be attended to right away."
"Well, he won't get attended to right away," said the old lady, "I can
tell you that! This doctor charges by the length of time you wait in his
office, so he never hurries. I've been here three months."
"Three months!" cried the boy. "Oh, I couldn't possibly wait three
months, or even three days. I'm in a hurry! I've got to earn enough
money to pay the rent of our cottage, or the ogre who owns it will
turn me into a dumpling and eat me."
And when he said that everybody in the waiting room twisted about
and looked at him. "He seems to have a fever," they said.
"See here," said the old lady, "are you sure you're not sick instead of
your grandfather?"
"I'm perfectly well!" exclaimed Omo, indignantly.
"Then you must be joking," responded the other.
"No, I'm not," said Omo. "I mean every word I said. I'm in great
trouble."
"H'm," said the old lady. She got to her feet. "Come on, let's go
outside! We'll save money by it anyway!"
Then as they walked along the street Omo told her all about his
grandfather's accident, and how important it was that the rent should
be paid.
"Ha!" exclaimed the old lady. "I know that ogre! His name is Gub and
he lives on the hill on the other side of the city. I often used to help
people out of his clutches. I'm a retired fairy godmother—haven't
been in business for years and years—but your story interests me.
I've a good mind to help you!"
"Oh, if you only would!" said Omo, "I'd be awfully obliged. You see,
it's not very pleasant to be made into a dumpling, and have my
grandfather put out of his cottage when he has a broken leg. Please,
please, help me!"
"Well," said the old lady, as she led the way into a little house with a
peaked roof, "I only help people who help themselves. Can you help
yourself?"
"Certainly!" said Omo. "Just offer me something and watch me help
myself."
"Very well then, I will," responded the fairy godmother. Going to a
golden desk in a corner she took from it a silver key. "This is the key
that turns on the Fountain of Riches in the City of Ootch. All you
have to do is to put the key in the keyhole at the base of the fountain,
give three turns to the right, three turns to the left, and one turn in the
middle, and instantly the fountain will commence to spout gold
pieces enough to bury you. But you must promise me this, be sure
and turn the fountain off as soon as you get enough gold pieces to fill
your cap; and be sure and bring the key back to me, for I wouldn't
want that key to be left in Ootch, or that fountain to be left spouting,
for anything."
"Why not?" asked Omo. "What's the use of a fountain if it doesn't
spout?"
"Well, you see I presented that fountain to the city of Ootch because
they named the city after my great aunt's trained cockatoo, but after
the fountain started spouting gold pieces everybody had so much
money they all stopped working, and it almost ruined them. The
butcher stopped selling meat, and the baker stopped baking bread,
and the tailor stopped making clothes. Everybody stopped doing
everything, and pretty soon, although everybody had plenty of
money, you couldn't buy anything because nobody would take the
trouble to keep store when they could get money from the fountain.
So I locked the fountain up and took the key with me. And after the
people of Ootch had spent some of the money they had, and lost the
rest, and could not get any more without working for it, everything
got all right again. And that's the reason I don't want the fountain to
keep on spouting again, or want you to leave the key behind you."
"I should think not," said Omo. "It seems as bad to be too rich as it is
to be too poor. I'll be very careful about shutting the fountain off, and
I won't forget to bring back the key. And now how do I get to the city
of Ootch?"
"Just open my back door," said the fairy godmother, handing him the
key, "step out on the step, and then step off. And I do hope you won't
find it raining, for when it rains in Ootch, it rains cats and dogs."
So Omo opened the fairy godmother's back door and stepped out on
the step, and as he stood there all he saw before him was a pretty
little garden. Then, he stepped off the step, and bing—he was in a
queer looking city, and the garden and the back step, and the
cottage, and the fairy godmother, had all disappeared. And in
addition it was raining cats and dogs; regular, real cats and dogs.
"Ouch!" cried Omo, as a fat maltese fell ker-plunk on his head,
yowling like anything. "Whee!" he yelled, as a fox terrier dropped
with a thud on his shoulder and barked in his ear. And then, as black,
white, brown, yellow cats of every color, and dogs, big, little and
medium, began pouring on him and around him, all howling, and
barking, and spitting at the same time, he made a rush for a small
building, open at the sides but with a dome like roof of metal, where
a man was standing.
"Quite a shower, isn't it?" said the man, as Omo reached the shelter.
"A shower," gasped Omo, "why—why, I think it's much more than a
shower. And—and look what's coming down—cats and dogs!"
 It was raining cats and dogs

"Well," said the other, "why not? That's what always comes down,
isn't it? That is why we build these cat and dog proof pavilions for
use on rainy days. Now if it rained elephants, that would be an
inconvenience."
"I should say so," replied the boy. "But does it always rain like this?"
"Oh, sometimes it's a great deal worse. I remember about two years
ago I was caught in a storm and eight cats, all in one lump, and
fighting as hard as they could, fell right on top of me as I crossed the
street, and I assure you, sir, I almost lost my temper."
"Well," said Omo, "it's lucky they melt as soon as they reach the
ground or you'd have more cats and dogs than you knew what to do
with."
"Quite true," responded the stranger, "and even as it is, it is quite a
nuisance when a storm comes up."
He was an odd looking fellow with a curly beard, a scimitar in his
sash, and a spotted turban on his head. As he finished speaking he
began twisting at his ear with his finger as though he were winding a
clock.
"What's the matter," asked Omo, "is your ear sore?"
"Certainly not! You know as well as I do I'm only winding myself up
so I can start home as soon as the storm passes."
"Oh," cried Omo, "is that it? Well, I don't have to wind myself up
when I want to go anywhere. I'm always wound up."
"You are!" exclaimed the stranger. "Why, I can hardly believe it! I
never heard of anyone being that way! You can't have lived here
very long."
"Oh, no," said the boy, "I haven't lived here a half hour. I only just
came."
Then he asked his companion if this was the city of Ootch, where the
famous Fountain of Riches was located.
"Oh, yes," said the stranger, "this is the city of Ootch all right. And
the Fountain of Riches is here, too, but it's turned off; been turned off
for years. Gee whiz, don't I remember the good old days when it was
turned on. Everybody got so rich we nearly starved to death because
nobody would work to provide things for us to live on. And then all of
a sudden the fountain stopped, and I had to go to work again. I'm a
night watchman. Not that there is much use of watching the night,
because no one ever tries to steal it, but that's the trade my father
taught me, so I'm it. And now, maybe you'll tell me why you ask
about the Fountain of Riches?"
"Well," said Omo, cautiously, "I've heard so much about it I just
thought I'd like to see it while I was here." He didn't think it wise to
tell anything about the fairy godmother giving him the key to the
fountain for fear some one might try to take the key from him.
"Quite so," said the other, "then you'd better come with me. The
shower is over now, and if you want to see the fountain you've got to
get a permit from the Doodab."
"The Doodab! What's a Doodab?" asked Omo.
"A Doodab," exclaimed the Night Watchman, "is the next swellest
person to a Gumshu. Ootch isn't important enough to be governed
by a Gumshu so they put a Doodab over us, and he's a right decent
chap, and very fond of music. Why I've seen him sit by the hour and
push a slate pencil across a slate and go into ecstasies because it
made his blood run cold. You'll probably like him if you don't hate
him. So come along and see for yourself."
Now the Doodab of Ootch was a very, very fat, and a very, very lazy
gentleman. He hated to be bothered about anything at any time. He
wore rings on his fingers and bells on his toes, and he had a big
hoop of pearls through the end of his nose. And he especially hated
to be bothered when he was singing, which is what he was doing as
Omo and the Night Watchman entered his apartment. And this is
what he was singing in a very quivery voice as he accompanied
himself on a slate with an awfully squeaky slate pencil:

The currant cakes were thick upon the bushes;

The pie plants they were swaying in the breeze,
And the river it was made of delicious lemonade.
While the doughnuts all were ripe upon the trees.
We wandered hand in hand about the garden
Where the lollipops were strolling to and fro;
And I always will recall that exciting day in Fall
When we stood and watched the pickled onions grow.

"Well," exclaimed the Doodab, fretfully, "what do you want? It seems

strange I can't embark on a sea of melody without being dragged
ashore like this. What do you want?"
"This boy wants to get a permit to look at the Fountain of Riches,"
said the Night Watchman.
"He wants—What does he want that for?"
"Oh, I just want to see what it looks like," said Omo. "I never saw a
Fountain of Riches before."
"Hum!" said the Doodab of Ootch. "That remark has a very jarring
note in it. And what are you going to do after you've seen the
Fountain of Riches?"
"Why," said Omo, "just—just look at it, of—of course."
"And what are you going to do after that?"
"Why—why, just—just keep on looking at it, I guess," responded the
boy, hardly knowing what to say.
"Nonsense!" said the Doodab, "it won't do any good to keep on
looking at it forever. And besides if you look at it too long the permit
will run out. It only lasts three minutes."
"Three minutes!" exclaimed Omo. "Oh, I couldn't turn the fountain on
and off, and gather up the gold pieces in three minutes." And then he
clapped his hand to his mouth in dismay when he realized what he
had said.
"Ah, ha!" said the Doodab of Ootch, rattling the bells on his toes. "So
you're going to turn it on, eh?"
"Oh, ho!" said the Night Watchman. "And how in the world did you
find out how to turn it on?"
"Oh, I found out!" replied the boy.
"Well," said the Doodab, "I'm mighty glad to hear it, for I'm dreadfully
hard up. My purse is just about empty."
Then he clapped his hands and when his servants entered the room,
he told them to get several large sacks and some shovels, and follow
him. Then having twisted his ear and wound himself up, while the
Night Watchman did the same, he took Omo by one hand and the
Night Watchman by the other, and led the way to the Fountain of
Riches.
"See here," said Omo, as they hurried through the streets, "you two
needn't think you're going to have piles of gold pieces again, for
you're not. I'm only going to turn that fountain on long enough to get
my hat full; and then I'm going to turn it off."
"What!" shrieked the Doodab of Ootch, "you're going to turn it off
before I get my sacks full?"
"Can I believe my ears?" said the Night Watchman. "You can't mean
to turn it off before I get my pockets full? Why—why if it hadn't been
for me you never would have seen the Doodab, or found out where
the fountain was. You must be spoofing!"
"No, I'm not," said Omo. "I'm very sorry, but I promised to turn the
fountain off the minute I got my hat full."
"The minute you get your hat full, eh?" said the Doodab, looking at
Omo slyly. Then he whispered in the Night Watchman's ear, after
which they both laughed merrily.
"What are you laughing at?" asked Omo.
"We're laughing," said the Night Watchman, "to think how you're
going to turn the fountain off after you get your hat full."
By this time they had reached the Fountain of Riches which was in
the center of the public square of the city.
"Are you still determined to turn it off as soon as you get your hat
full?" asked the Night Watchman.
"I have to," said Omo. "I promised."
"Well," said the Doodab, snappishly, "if you want to shut it off you've
got to turn it on first, haven't you? So go ahead!"
So Omo took out the silver key, fitted it into the keyhole at the base
of the fountain, and turned three times to the right, then three times
to the left, and then three times in the middle, and bing—with a clink
and a chink, and a tinkle, the fountain of riches began to spout. And
the minute it did that, the Night Watchman grabbed Omo's cap from
his head, and the Doodab snatched the key from his hand.
"There," said the Doodab of Ootch, hurling the key as far as he
could, "I guess you won't turn off the fountain until you find that key."
"Yes," said the Night Watchman, hurling Omo's cap as far as he
could, "and I guess you won't fill your cap until you find your cap
either. And by the time you do I'll have my pockets full of gold
pieces."
"And," put in the Doodab, "I'll have my sacks full also."
Well, you may be sure Omo was very angry at the trick played on
him, and started after the cap and key as quickly as he could. It did
not take him long to find his cap, but he simply could not find the key.
"See here," he cried, running back to where the Doodab was tying
up the necks of his sacks, which were now filled to bursting, "you've
got to help me find that key. I promised to turn this fountain off and
I'm going to do it."
"All right," said the Doodab, "I'll help you. I've got gold enough here
to last me the rest of my life so I don't care how soon you turn it off."
"Nor I," said the Night Watchman. "I've got all my pockets full, and
my stockings full besides, so stop the old thing whenever you want."
But Omo, and the Doodab, and the Night Watchman, although they
searched and searched, could not find the key anywhere, and all the
while the fountain was spouting gold pieces in a stream a hundred
feet high, and so thick it looked like smoke.
"My sakes!" said the Doodab of Ootch, "I don't know how you'll ever
stop it! I'm sorry I threw the key away now! But, anyhow, the worst
that can happen if the fountain keeps on spouting, is to give the town
a spell of nervous prosperity."
But alas, the Doodab of Ootch did not know what he was talking
about, for the fountain kept on spouting and spouting, faster and
faster; and presently the streets were knee deep in gold pieces. It
was awful.
"Say," said the Night Watchman to Omo, "are you sure you turned
the fountain on all right? It never spouted like this before. We've
always been able to pick up the gold pieces as fast as they came
out."
"Of course I turned it on right," said the boy. "I turned the key three
times to the right and three times to the left, and then once in the
middle."
"No such thing!" shrieked the Doodab. "No such thing! You turned it
three times in the middle! I watched you!"
"Oh," cried Omo, in a horrified tone, "did I? Then—then that's why
the gold is coming out so fast. And it's getting deeper all the time."
"It'll soon be up to our necks!" cried the Night Watchman.
"We are lost!" roared the Doodab. He glared at Omo angrily. "How
dared you turn it on wrong?"
"Well, what did you throw the key away for?" retorted the boy. "If you
hadn't done that, I could turn it off."
And there they stood quarreling, and all the time the gold was getting
deeper and deeper about them. And when at last they decided they
had better go back to the Doodab's palace before they were buried
alive, they found it was too late. The gold pieces were so deep they
could not walk.
"Mercy me!" groaned Omo. "I'll never get back to my grandfather
now. I wish I had never come here!"
"So do I!" snapped the Doodab of Ootch. "Until you came I was
perfectly poor and happy, and now I'm horribly rich and wretched.
Oh, what shall we do?"
And then all of a sudden Omo remembered a whistle the fairy
godmother had given him when she gave him the key. "If you really
need me for anything," she had said, "just blow this whistle; but not
unless you really need me." So Omo put the whistle to his lips and
blew as hard as he could, for he thought if he ever really needed a
fairy godmother he needed one now.
And the minute he blew the whistle there was a flutter and a whirr,
and the fairy godmother, frilled bonnet and all, stood before them.
"Well," she said, "you are in a nice mess, aren't you?"
"It isn't my fault," said the boy. And then he told her how he had tried
to obey her instructions, but could not because the Doodab of Ootch
had thrown the key away. "I did make a mistake turning the fountain
on," he said, "but I could have turned it off all right if the key had not
been taken from me."
"I see!" said the fairy godmother.
Then she told Omo to fill his cap as well as his pockets with gold
pieces. And after he had done it, she gave three clucks like a
chicken does, snapped her finger twice; and bing—all the gold
pieces in the streets of Ootch, all the gold in the Doodab's money
bags, all the gold in the pockets and stockings of the Night
Watchman; all the gold everywhere except that which Omo had,
disappeared, and the Fountain of Riches also.
"There," she said, "that's the best way to settle the matter. And now,
come on, Omo, and get the doctor for your grandfather and pay the
ogre his rent."
"But," howled the Doodab of Ootch and the Night Watchman, "what
do we do? We haven't a cent!"
"You don't deserve any," replied the fairy godmother, sternly. "And as
long as you're howling so about it, I'll just make you and the whole
city disappear as well."
And she did, with three clucks and a snap of her fingers; and the
next moment Omo found himself in the fairy godmother's cottage.
Well, you can easily guess how after thanking his benefactress for
what she had done, he hurried off to the doctor's office. And when
the doctor saw Omo's cap and pockets full of gold, he went with him
at once; and became so interested in Omo's grandfather's case he
took ten years to cure him.
But neither Omo nor his grandfather cared if he did, for they had
plenty of money. And when the ogre came stamping in to collect his
rent, thinking he would not get it and would then make Omo into a
dumpling, Omo just laughed and bought the place from him. And not
only that, but he added another wing to the cottage and laid out a
pretty garden as well, as much like the fairy godmother's as he could
make it. And when he did that the fairy godmother was so pleased
she came and kept house for them.
And now if you want to see a really happy family, just stop and make
a visit at Omo's place in the middle of the forest where his
grandfather used to cut down the trees to make a living, but which he
does not have to do any more, thanks to the Fountain of Riches.
 OBSTINATE TOWN
Of course you know what a postage stamp is: a little, square,
gummed stamp with a picture of George Washington on it. But a
magic postage stamp is a very different stamp indeed. The George
Washington kind you can buy in the drug stores, but the other sort
you cannot buy. They are given to you free of charge, if you don't
look out.
In the autumn, when the leaves are falling, the Poppykoks come to
town. There may be a hundred leaves falling and not one leaf have a
Poppykok on it, and then all of a sudden, another leaf falls on your
shoulder and a Poppykok is sitting on it, and then—bing—the
moment he lands on your shoulder he jumps off the leaf and pastes
a magic postage stamp on your cheek, and then—off you start for
Obstinate Town by special delivery, that is, you do if you happen to
be a boy that always wants his own way. But if you are not that kind
of a boy, you need not worry.
However, the boy this story is about was one of the kind who wanted
his own way. No matter what he was told to do he wanted to do
something else. Otherwise, he was a very nice little chap, and his
name was Prince Zep, the only son of a wealthy and powerful king.
Of course being a prince he was allowed to have his own way much
more than was good for him, and was so used to it, he never thought
anything about how unpleasant it might make things for other
people.
And so, it is not surprising that one afternoon late in the Fall he was
caught, and sent off to Obstinate Town by special delivery.
Now Zep never guessed, any more than you have, that there was
such a place as Obstinate Town, or such things as Poppykoks or
magic postage stamps. And so, as he strolled through the Royal
Park that afternoon scudding his feet through the dried leaves that
covered the way, he had not the slightest idea that anything was
going to happen to him, until quite unexpectedly, a big, red maple
leaf fell on his shoulder, and from it stepped a Poppykok in his bright
scarlet coat and breeches, and with his magic postage stamp neatly
curled up in a roll in his hand. And before Zep could even gasp, the
Poppykok had pasted the stamp on his cheek, leaped from his
shoulder to the ground, and stood before him, smiling cheerfully.

The Poppykok pasted a magic postage stamp on his cheek

"There you are," said the Poppykok, "a good job, well done. Bon
voyage!"
"Bon what?" began Zep, "I—I—"
"That's all right," responded the Poppykok, "you don't know where
you're going, but you're going. Good-by! I'll see you later!"
And then Zep felt himself leap into the air and start off with a whiz.
And the more he whizzed, the more he whizzed, until it seemed as
though he would never stop whizzing.
"My gracious," he thought, as well as he could as he hurried along,
"what on earth has happened to me, and where, oh where, am I
going? This is really dreadful!"
And indeed it was for a little while. But presently he began to get
used to the whizzing, and finally found himself descending in a
graceful curve before a large and ornate building that looked very
much like a palace. And sure enough that is exactly what it was, and
sitting on the steps of the palace waiting for him was the very same
Poppykok that had started him off on his journey.
"Welcome!" said the Poppykok, rising and coming forward as the
Prince reached the ground with a bump, "you're right on time. I hope
you had a pleasant trip?"
"No," said Zep, crossly, "I certainly did not. I had a horrid trip. How
dare you treat me this way?"
"Pooh! Pooh!" responded the other, snapping his fingers, "everybody
says that when they first arrive. You'll be crazy about the place in a
little while. And now let's go inside and report to the Emperor."
Pushing open the front door of the palace the Poppykok led the way
into the grand entrance hall, and as he did so a short, fat man with a
crown on his bald head, and bristling whiskers all about his face,
came tumbling down the stairway head over heels, and landed in a
heap at their feet.
"Ouch!" he exclaimed, sitting up and rubbing his nose. After which
he rubbed his shins and said "ouch" once more; and "oh my" and
"good gracious." And after that he bawled up the stairs as loud as he
could: "Don't try to tell me to be careful and not fall downstairs, for I'll
do as I want."
Then he swung himself about. "The idea," he said, glaring at the
Prince and the Poppykok, "of any one trying to keep me from falling
downstairs. Huh! Can't I fall down my own stairs? Can't I? Tell me!"
"Certainly you can, your majesty," responded the Poppykok. "You
can fall up 'em, too, if you want."
"I should think so," retorted the Emperor, "and yet the Queen tells me
to look out and not fall down 'em, because it worries her. Well, let her
worry. I want her to worry."
But if the Queen was worried she did not act that way, for as she
came tripping down she was laughing so heartily that she nearly fell
herself, and finally had to sit on the bottom step to get her breath.
"What—what—" spluttered the Emperor, "what do you mean by not
worrying? You ought to be ashamed of yourself. Look at my nose, to
say nothing of the bump on my shins. My, oh, my, isn't anybody
worried about me?"
"I am, your majesty," put in Zep, "and I think the Queen ought to be,
too."
"She ought not," snapped the monarch, scrambling to his feet. "If I
wanted her to be glad she would be worried, but as I want her to be
worried, she is not. You must be a stranger here."
"He is," said the Poppykok. "He just arrived. I only caught him a little
while ago."
Then he told the Emperor who Zep was. "This boy," he said, "is a
Prince, and has his own way more than anybody else in his father's
kingdom. In fact, he is one of the most delightfully stubborn young
persons I have ever met, and never will do what any one wants him
to if he can possibly help it."
"My," said the Emperor, grasping Zep's hand and shaking it warmly,
"if that isn't the finest record I ever heard of. I couldn't be more pig-
headed myself. How did you get so? Did you learn it at school or just
teach yourself?"