Shogun Finance Ltd v Hudson


[2004] 1 All ER 215

House of Lords


A rouge purporting to be a Mr Patel entered into a written finance agreement with Shogun Finance Ltd whereby Shogun Finance Ltd would provide Mr Patel with finance to purchase of a motorcar from a dealer. Before entering into the agreement with Mr Patel, Shogun Finance Ltd had checked Mr Patel's name and address against the electoral register, checked whether any county court judgments or bankruptcy orders were registered against him, checked his credit rating, and compared his signature with the signature on his driving licence. Having satisfied themselves that Mr Patel was genuine they entered into the finance agreement with him. The rouge then bought a car from a dealer. He then resold it to an innocent purchaser a Mr Hudson. The rouge then disappeared with the money. Shogun Finance Ltd then claimed the car from Mr Hudson.


The issue was whether the contract between Shogun Finance Ltd and the rouge was void for mistake.


Lord Hobhouse of Woodborough


[42] My Lords, the question at issue on this appeal is: 'Did Mr Hudson acquire a good title to the car when he bought the car from the rogue (R) who himself had no title?' The basic principle is nemo dat quod non habet: see s 21(1) of the Sale of Goods Act 1979 and Helby v Matthews [1895] AC 471... where it was held that the same rule applied to a sale by a hire-purchaser. The hire-purchaser has no title to the goods and no power to convey any title to a third party. The title to the goods and the power to transfer that title to any third party remains with the hire-purchase company and with it alone. Clause 8 of the hire-purchase 'agreement' and the printed words in the form immediately below the space for the customer's signature also expressly say the same...


[43] In the present case, the statutory exception relied on by Mr Hudson is that in Pt III of the Hire-Purchase Act 1964 as re-enacted in the Consumer Credit Act 1974:


'27 . . . (1) . . . where a motor vehicle has been bailed . . . under a hire-purchase agreement . . . and, before the property in the vehicle has become vested in the debtor, he disposes of the vehicle to another person . . . (2) [who is] a private purchaser [who has purchased] the motor vehicle in good faith, without notice of the hire-purchase . . . agreement . . . that disposition shall have effect as if the creditor's title to the vehicle has been vested in the debtor immediately before that disposition.' (My emphasis.)


Section 29(4) adds:


'. . . the "debtor" in relation to a motor vehicle which has been bailed . . . under a hire-purchase agreement . . . means the person who at the material time (whether the agreement has before that time been terminated or not) . . . is . . . the person to whom the vehicle is bailed . . . under that agreement . . .' (My emphasis.)


[44] The relevant question is therefore one of the application of this statutory provision to the facts of this case (no more, no less). Thus the question becomes: 'Was R a debtor under the hire-purchase agreement relating to the car?' Mr Hudson contends that R was; the finance company contends that he was not. The judge and the majority of the Court of Appeal ([2002] 4 All ER 572) found that he was not; Sedley LJ would have held that he was.


[45] What was the 'hire-purchase' 'agreement' relied on? It was a written agreement on a standard hire-purchase printed form purporting to be signed as the 'customer' by one Durlabh Patel, the person who lived at 45 Mayflower Road, Leicester, to whom driving licence No 'PATEL506018DJ9FM' had been issued and with a date of birth 01/06/58. This was an accurate identification of the real Mr Durlabh Patel, but in no respect of R who was not the person who lived at that address, not the person to whom the driving licence had been issued and (one suspects) not a twin in age of the real Mr Patel. R forged Mr Patel's signature so as to make the signature on the hire-purchase 'agreement' appear to be the same as that on the driving licence. The parties to the written 'agreement' are Mr Patel (the 'customer'), and Shogun Finance Ltd (the creditor). There is also an offer and acceptance clause:


'You ["the customer named overleaf"] are offering to make a legal agreement by signing this document. We [the creditor] can reject your offer, or accept it by signing it ourselves.


If we sign this document it will become legally binding at once (even before we send you a signed copy) . . .'


[46] The effect of this is that-(i) it re-emphasises that the customer/hirer is, and is only, the person named on the front of the document; (ii) it makes it clear that the agreement is the written agreement contained in the written document; (iii) the offer being accepted by the creditor is the offer contained in the document and that alone, that is to say, the offer of Mr Durlabh Patel of the address in Leicester and to whom the driving licence was issued; (iv) for a valid offer to be made, the form must have been signed by Mr Durlabh Patel; and, (v) most importantly of all, the question in issue becomes a question of the construction of this written document, not a question of factual investigation and evaluation. I will take these points in turn but the second and fifth are fundamental to them all and to the giving of the correct answer to this case.


[47] The first point is a matter of the construction of the written document. It admits of only one conclusion. There is no mention in the document of anyone other than Mr Durlabh Patel. The language used is clear and specific, both in the substance of the identification-name and address and driving licence number and age-and in the express words of the offer and acceptance clause-'the customer named overleaf'. The 'agreement' is a consumer credit agreement. It is unlike a mere retail sale where, although title may, indeed, will normally have already passed to the buyer, the seller is not obliged to part with the goods until he has been paid or is satisfied that he will be paid. Credit is only relevant to the release of the seller's lien and to his obligation to deliver, not to the basic transaction; the basic transaction is unaffected and will stand. Under a contract for the sale of goods, the contract has been made and, normally, the title to the goods has vested in the buyer before the time for payment has arrived. (Retention of title clauses are a modern development.) By contrast, in a consumer credit transaction, the identity of the customer is fundamental to the whole transaction because it is essential to the checking of the credit rating of the applicant borrower. All this precedes the making of any contract at all. No title to the goods is obtained by the hirer at any stage. If the finance company does not accept the proposer's offer, the proposer has acquired nothing. Unlike in the sale of goods, there is nothing-no status quo-which has to be undone. The observations of Devlin LJ in Ingram v Little [1960] 3 All ER 332 at 348-349, [1961] 1 QB 31 at 69 are not pertinent; the approach and dicta of Lord Denning MR in Lewis v Averay [1971] 3 All ER 907, [1972] 1 QB 198 are misplaced and wrong.


[48] It has been suggested that the finance company was willing to do business with anyone, whatever their name. But this is not correct: it was only willing to do business with a person who had identified himself in the way required by the written document so as to enable it to check before it enters into any contractual or other relationship that he meets its credit requirements. Mr Durlabh Patel was such an identified person and met its credit requirements so it was willing to do business with him. If the applicant had been, say, Mr B Patel of Ealing or Mr G Patel of Edgbaston, it would not have been willing to deal with them if they could not be identified or did not meet with its credit requirements. Correctly identifying the customer making the offer is an essential precondition of the willingness of the finance company to deal with that person. The rogue knew, or at least confidently expected, that the finance company would be prepared to deal with Mr Durlabh Patel but probably not with him, the rogue; and he was, in any event, not willing himself to enter into any contract with the finance company. This is not a case such as that categorised by Sedley LJ ([2002] 4 All ER 572 at [21], [2002] QB 834 at [21]) as the use of a 'simple alias' to disguise the purchaser rather than to deceive the vendor-the situation which resembles that in King's Norton Metal Co Ltd v Edridge, Merrett & Co Ltd (1897) 14 TLR 98. But, even then, in a credit agreement it would be useless to use a pseudonym as no actual verifiable person against whom a credit check could be run would have been disclosed and the offer would never be accepted. Mr Durlabh Patel is the sole hirer under this written agreement. No one else acquires any rights under it; no one else can become the bailee of the motor car or the 'debtor' 'under the agreement'. It is not in dispute that R was not Mr Durlabh Patel nor that R had no authority from Mr Patel to enter into the agreement or take possession of the motor car.


[49] Mr Hudson seeks to escape from this conclusion by saying: 'but the rogue was the person who came into the dealer's office and negotiated a price with the dealer and signed the form in the presence of the dealer who then witnessed it.' The third and fourth points address this argument. The gist of the argument is that oral evidence may be adduced to contradict the agreement contained in a written document which is the only contract to which the finance company was a party. The agreement is a written agreement with Mr Durlabh Patel. The argument seeks to contradict this and make it an agreement with the rogue. It is argued that other evidence is always admissible to show who the parties to an agreement are. Thus, if the contents of the document are, without more, insufficient unequivocally to identify the actual individual referred to or if the identification of the party is non-specific, evidence can be given to fill any gap. Where the person signing is also acting as the agent of another, evidence can be adduced of that fact. None of this involves the contradiction of the document: Young v Schuler (1883) 11 QBD 651, [1881-5] All ER Rep Ext 1469, which was a case of an equivocal agency signature and it was held that evidence was admissible that the signature was also a personal signature-'evidence that he intended to sign in both capacities . . . does not contradict the document and is admissible' (see (1883) 11 QBD 651 at 655, [1881-5] All ER Rep Ext 1469 at 1471 per Cotton LJ). But it is different where the party is, as here, specifically identified in the document: oral or other extrinsic evidence is not admissible. Further, the rogue was no one's agent (nor did he ever purport to be). The rule that other evidence may not be adduced to contradict the provisions of a contract contained in a written document is fundamental to the mercantile law of this country; the bargain is the document; the certainty of the contract depends on it. The relevant principle is well summarised in Phipson on Evidence (15th edn, 2000) pp 1165-1166 (paras 42-11, 42-12):


'. . . when the parties have deliberately put their agreement into writing, it is conclusively presumed between themselves and their privies that they intend the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith or treacherous memory.'


(See also Bank of Australasia v Palmer [1897] AC 540 at 545 per Lord Morris.) This rule is one of the great strengths of English commercial law and is one of the main reasons for the international success of English law in preference to laxer systems which do not provide the same certainty. The case of Hector v Lyons (1988) 58 P&CR 156 is simply an application of this basic and long-established principle. The father was claiming to be able to enforce a contract of sale of land. The father had conducted the negotiations. Woolf LJ said (at 160-161):


'In this case there is no dispute as to who, according to the written contract, are the parties. The son was described in the contract as one of the parties. He does exist and, in so far as there was a contract at all, it was between him and the other party identified in the contract, Mrs Pamela Doris Lyons.'


Browne-Wilkinson V-C delivered a judgment to the same effect. He referred (at 159) to the cases 'entirely concerned with transactions between two individuals face to face entering into oral agreement', saying:


'In my judgment the principle there enunciated has no application to a case such as the present where there is a contract and wholly in writing. There the identity of the vendor and of the purchaser is established by the names of the parties included in the written contract.'


Mr Hudson submitted, as he had to, that this decision was wrong and should be overruled. In my opinion the Court of Appeal's decision was clearly correct and correctly reasoned in accordance with well-established principles.


[50] The argument also fails on another ground. There was no consensus ad idem between the finance company and the rogue. Leaving on one side the fact that the rogue never had any intention himself to contract with the finance company, the hire-purchase 'agreement' to which Mr Hudson pins his argument was one purportedly made by the acceptance by the finance company, by signing the creditor's box in the form, of a written offer by Mr Durlabh Patel to enter into the hire-purchase agreement. This faces Mr Hudson with a dilemma: either the contract created by that acceptance was a contract with Mr Durlabh Patel or there was no consensus ad idem, the rogue having no honest belief or contractual intent whatsoever and the finance company believing that it was accepting an offer by Mr Durlabh Patel. On neither alternative was there a hire-purchase agreement with the rogue.


[51] It is as well to digress at this stage to consider the chain of contracts or alleged contracts relied upon by Mr Hudson. First, Mr Hudson relies upon a contract of sale he made with the rogue when he agreed to buy the motor car from the rogue. He says he got a good title to it from the rogue under this contract notwithstanding that R had no title. In support of this statute-based contention he argues that there was another contract which he has to say was a contract of hire-purchase between the rogue and the finance company, the supposed contract contained in the written hire-purchase agreement. There is no dispute that the finance company had bought the motor car from the dealer and was or had become the owner of the car at the time when the finance company signed the document and thereby accepted the offer (if any) in the written hire-purchase document. (That contract of purchase was never put in evidence.) The title to the car was in the finance company. The hirer/debtor under the 'agreement' was Mr Durlabh Patel not the rogue. The rogue only comes into the picture because he was the unidentified individual who came into the dealer's office and caused the dealer to sell the motor car to the finance company and the dealer, thereafter, to deliver it to him although he was not in fact Mr Durlabh Patel. (He, of course, came into the story again later as the person who purported to sell the car to Mr Hudson.) The dealer (as his witness signature testifies) apparently believed the rogue when the rogue said his name was Mr Patel and negotiated with him, face-to-face, the price at which the dealer would be willing to sell the car. That negotiation enabled the dealer to fill in the appropriate finance details which the 'customer' should ask for. But the rogue never had any face-to-face dealings with the finance company; he dealt with it solely by submitting a written document containing an offer and acceptance clause. There is no room for the application of the 'face-to-face' principle between the rogue and the finance company. Nor was the dealer the agent of the finance company to enter into any contract on behalf of the finance company. The dealer is a mere facilitator serving primarily his own interests. If there could have been any doubt or room for argument about this point, it is put beyond argument or doubt by the terms of the offer and acceptance clause in the governing document. R and the dealer are not two individuals conducting negotiations in which all the terms necessary to constitute a binding contract are agreed.


[52] As regards the delivery of the motor car by the dealer to the rogue, it is not in dispute that, in making that delivery, the dealer was acting as the agent of the finance company. But he was acting without authority. The dealer's authority was to deliver the car to Mr Durlabh Patel, not to anyone else. That delivery did not create any bailment of the car by the finance company to the rogue. The rogue was a thief. Albeit by an elaborate but effective course of action, he stole the car from the possession of the dealer just as surely as if he was a thief stealing it from the forecourt. The dealer may have acted under an innocent mistake induced by the fraud the rogue had practised on him; but it will, nevertheless, have been a tortious disposal of the motor car by the dealer. But the matter does not stop there. It would not be a delivery 'under a hire-purchase agreement'. This follows from the fact that there was no hire-purchase agreement (or any agreement or contract) between the finance company and the rogue. It further follows from the fact that the only 'debtor' under the supposed agreement was Mr Durlabh Patel. It was never the rogue and neither the finance company nor the rogue ever intended that it should be.


[53] The final point was the fact that the purported customer's signature was not in truth that of Mr Durlabh Patel. The supposed hire-purchase agreement therefore from the outset lacked an essential ingredient and within the terms of the document was never an offer eligible for acceptance. A forged signature is neither the signature of the purported signatory nor of the forger. There may be an exception where the 'forger' had the authority of the actual party to sign on his behalf and in his name, in which case it probably would not be a forgery unless there was some dishonest intent to deceive. The same applies to using a 'mere pseudonym' or a trading name. But that is not this case.


[54] It follows that the appeal must be dismissed and the majority judgment of the Court of Appeal affirmed.


Lord Walker of Gestingthorpe


[180] My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hobhouse of Woodborough. I agree with him that this appeal should be dismissed for the reasons given in his opinion. But because of the interest of this appeal, and the differing views among your Lordships, I wish to add some observations of my own. I begin with two general points.


[181] A recurring theme in the authorities, starting with the very first sentence of the speech of Lord Cairns LC in Cundy v Lindsay (1878) 3 App Cas 459 at 463, [1874-80] All ER Rep 1149 at 1150, is the court's difficulty in deciding which of two innocent parties should bear the loss caused by the fraud of a third person (who may be beyond the reach of the law). Typically one innocent party is a seller who has parted with goods to a rogue, without obtaining payment in cash, and the other innocent party has bought the same goods from the rogue for cash. But although the court recognises both as innocent there is sometimes an inclination to regard the eventual buyer from the rogue as the more deserving of sympathy. Thus Lord Denning MR said in Lewis v Averay [1971] 3 All ER 907 at 911, [1972] 1 QB 198 at 207:


'As I listened to the argument in this case, I felt it wrong that an innocent purchaser (who knew nothing of what passed between the seller and the rogue) should have his title depend on such refinements. After all, he has acted with complete circumspection and in entire good faith; whereas it was the seller who let the rogue have the goods and thus enabled him to commit the fraud.'


[182] In that case both of the innocent parties were young men and both might be thought to have been over-trusting. By contrast in Phillips v Brooks Ltd [1919] 2 KB 243, [1918-19] All ER Rep 246, the seller was an Oxford Street jeweller, and the ultimate holder was a pawnbroker, both of whom were presumably experienced in their trades. In other cases one or other of the innocent parties may appear to have a stronger claim on the court's sympathy. But your Lordships have to lay down a general rule to cover the generality of cases, and it would not be right to make any general assumption as to one innocent party being more deserving than the other. That is especially true in this case which is concerned, not with a sale but with a hire-purchase transaction, and in which the issue to be decided is (as Lord Hobhouse of Woodborough has pointed out) ultimately a question of statutory construction.


[183] The other general point is that (in agreement, I think, with all your Lordships) I regard the issue in this appeal as essentially a problem about offer and acceptance; and in determining whether or not a contract has been formed by offer and acceptance, the court adopts an objective approach, and does not inquire into what either party actually intended, but into the effect, objectively assessed, of what they said or wrote. As it has been put in a much-cited passage from Gloag on Contract (2nd edn, 1929) p 7:


'The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.'


(For one of the most recent citations see OT Africa Line Ltd v Vickers plc [1996] 1 Lloyd's Rep 700 at 702.) This point is neither original nor controversial but it is worth making because in the leading case of Cundy v Lindsay (1878) 3 App Cas 459, [1874-80] All ER Rep 1149 (which had at first instance been tried with a jury) their Lordships' speeches placed little or no weight on the need for an objective approach. There was no need for them to do so, since (as Lord Cairns LC said ((1878) 3 App Cas 459 at 464, [1874-80] All ER Rep 1149 at 1151) 'The whole history of the whole transaction lies upon paper'.


[184] The objective nature of the inquiry tends to narrow, perhaps close to vanishing-point, the difference (mentioned in the speeches of my noble and learned friends Lord Millett and Lord Phillips of Worth Matravers MR) between the person for whom the offer or acceptance is intended and the person to whom it is directed. I venture to suggest that the right question to ask, whether the parties to an alleged contract have been negotiating face-to-face or at a distance, is to whom the offer is made (or to whom acceptance of an offer is made; but I shall for the sake of simplicity assume that, as in this case, the rogue is the offeror). Posed in that way, the question may be no easier to answer, but it does avoid the sort of pointless speculation which Devlin LJ exposed in Ingram v Little [1960] 3 All ER 332 at 346, [1961] 1 QB 31 at 65:


'If Miss Ingram had been asked whether she intended to contract with the man in the room or with Mr PGM Hutchinson, the question could have no meaning for her since she believed them both to be one and the same. The reasonable man of the law-if he stood in Miss Ingram's shoes-could not give any better answer.'


[185] The principle to be applied in the case of face-to-face negotiations has sometimes been treated as an exception, but to my mind it is the best starting-point, as it exemplifies the simplest form of oral contract. The principle was first spelled out in England in Phillips v Brooks Ltd [1919] 2 KB 243, [1918-19] All ER Rep 246, following the Chief Justice of Massachusetts in Edmunds v Merchants' Despatch Transportation Co (1883) 135 Mass 283 at 284:


'The fact that the seller was induced to sell by fraud of the buyer made the sale voidable, but not void. He could not have supposed that he was selling to any other person; his intention was to sell to the person present, and identified by sight and hearing; it does not defeat the sale because the buyer assumed a false name, or practised any other deceit to induce the vendor to sell.'


The only case out of line with the principle is Ingram v Little. The reasoning in Devlin LJ's powerful dissenting judgment is in my view unanswerable. I consider that Ingram v Little was wrongly decided.


[186] My noble and learned friends Lord Nicholls of Birkenhead and Lord Millett accept the face-to-face principle but consider that it should not be limited to situations where the parties have negotiated face-to-face. Lord Millett also takes the view that the principle should not be regarded as a mere presumption, but as a rule of law (subject, as I understand it, to an exception in cases of agency, such as Hardman v Booth (1863) 1 H & C 803, 158 ER 1107, which may be the best explanation of the difficult case of Lake v Simmons [1927] AC 487, [1927] All ER Rep 49 (see Sir Jack Beatson's 28th (2002) edition of Anson's Law of Contract pp 330-331, which contain an illuminating discussion).


[187] If the principle is no more than a presumption, it is a strong presumption, and exceptions to it would be rare (in Ingram v Little Devlin LJ himself ([1960] 3 All ER 332 at 347, [1961] 1 QB 31 at 67) was content to leave this point open). I would hesitate to state it as an inflexible rule (apart from cases of agency) because the notion of one individual impersonating another covers a wide range of factual situations (broadly corresponding to the wide range of meaning conveyed by saying that one person knows, or knows of, another). At one end of the spectrum is the confidence trickster who falsely but convincingly asserts that he is a baronet (or a barrister, or a brain surgeon) in order to inspire confidence and obtain credit. Then there are cases like Phillips v Brooks Ltd and Ingram v Little, where the rogue falsely gives the name and address of a real person whose existence the other party can and does check (but whom the other party does not actually know by sight, or the deception would fail). The most audacious form of impersonation would be where a rogue (such as the Tichborne claimant was held to be) attempts, face-to-face, to deceive a member of the family of which he claims to be part, or someone else personally acquainted with the individual whom the rogue is impersonating. Impersonation of that sort must be very rare indeed, and probably limited to deception of those whose senses are impaired (as Isaac was when, according to Ch 27 of Genesis, Jacob successfully impersonated his elder twin brother Esau). I would not exclude the possibility that impersonation of that sort might be outside the presumption. Your Lordships were shown the decision of the Court of Appeals of New York in Morgan Munitions Supply Co v Studebaker Corp (1919) 123 NE 146, where one brother impersonated his more distinguished brother in order to obtain a contract of employment; but it appears (so far as can be discerned from the report) that the contract was in writing, and that neither brother was personally known to the employer.


[188] I return to the question, which is of central importance to this appeal, whether (as Lord Nicholls and Lord Millett propose) the face-to-face principle should be applied much more generally. It may be that it should apply to an oral contract alleged to have been made on the telephone, where the parties are identified by hearing, although not by sight. An alleged oral contract made by telephone might be a case where the presumption applied, but was rebuttable. But to extend the principle to cases where the only contract was by written communication sent by post or by e-mail would be going far beyond identification by sight and hearing. Where there is an alleged contract reached by correspondence, offer and acceptance must be found, if they are to be found at all, in the terms of the documents. Devlin LJ put it simply and clearly in Ingram v Little [1960] 3 All ER 332 at 346, [1961] 1 QB 31 at 64:


'The classic case of Cundy v Lindsay was one in which the acceptance was not addressed to the offeror. The offer, as in the instant case, was addressed to a person who held himself out as willing to do business. But the offer was made by Blenkarn and the acceptance addressed to Blenkiron. The fact that there was a real Blenkiron, whom Blenkarn was pretending to be showed that it was not a case of falsa demonstratio non nocet.'


There was in that case the appearance of a complete contract only because the rogue, Blenkarn, had forged the signature of Blenkiron & Co (Lord Cairns LC said ((1878) 3 App Cas 459 at 465, [1874-80] All ER Rep 1149 at 1151) 'just in the same way as if he had forged the signature'; but the facts as set out in the report appear to amount to nothing less than forgery.) The documentary evidence provided no ground for concluding that the manufacturer (Lindsay & Co) intended to contract with anyone other than Blenkiron & Co as addressee of the manufacturer's acceptance.


[189] King's Norton Metal Co Ltd v Edridge, Merrett & Co Ltd (1897) 14 TLR 98 went the other way because there was no ground for concluding that the manufacturer's offer was made to anyone other than Wallis, trading as Hallam & Co. Wallis, trading as Hallam & Co, had previously placed at least one order with the manufacturer, and had paid with a cheque drawn by 'Hallam & Co'. The judge at first instance described the case as a long firm fraud. So in that case there was no question of the manufacturer being deceived into thinking he was dealing with someone else. The deceit was as to the standing and credit-worthiness of Wallis, who had embellished his writing paper with deceptive material.


[190] In Cundy v Lindsay (1878) 3 App Cas 459 at 465, [1874-80] All ER Rep 1149 at 1151 Blenkiron & Co, the firm whose name was misappropriated by the rogue, was described by Lord Cairns LC as 'a well known and solvent house'. The implication is that Lindsay & Co, the manufacturer, would have known of its existence, although that was not a question explicitly put to the jury. What if Lindsay & Co had never heard of Blenkiron & Co? One answer to that question is that the sequence of events would probably have been different, since Lindsay & Co would have been put on inquiry as to what to make of the rogue's deceptive signature, and would probably have acted more cautiously before despatching such a large quantity of goods. There would have been more room for argument about who was the real addressee of the manufacturer's offer. The Latin maxim referred to by Devlin LJ in Ingram v Little case means in its full form that misdescription is not fatal when the real subject-matter is common ground. These last words are important. Whether the real subject is common ground depends on all the circumstances, and the old textbooks are full of illustrations, some going one way and some the other (see for instance Jarman on Wills (8th edn, 1951) vol 2, pp 1246 ff). The modern approach to construction of documents is much less regimented by detailed rules, but the essential issue remains the same.


[191] However, the present appeal is, as my noble and learned friend Lord Hobhouse of Woodborough has demonstrated, easier to resolve. Shogun Finance had no doubt never heard of the real Mr Patel before the day on which the written contract was signed by the rogue, forging Mr Patel's signature. But by the time it accepted the written offer it had, by efficient information technology, confirmed that Mr Patel existed and had learned a good deal of relevant information about him, including his creditworthiness. The form of contract made quite clear that Shogun Finance's intention was to accept an offer made by the real Mr Patel, and no one else. The appellant's attempt to analyse the matter as a face-to-face contract (effected through the agency of the car salesman) was accepted by Sedley LJ but in my view it must fail, for the reasons stated by Lord Hobhouse. The appellant relied on the decision of this House in Branwhite v Worcester Works Finance Ltd [1968] 3 All ER 104, [1969] 1 AC 552, but in my view it is against him: see especially the remarks of Lord Upjohn ([1968] 3 All ER 104 at 116, [1969] 1 AC 552 at 578).


[192] In the course of argument some time was spent on the decision of the Court of Appeal in Hector v Lyons (1988) 58 P&CR 156. In that case a man was negotiating to buy a house and had discussions, both on the telephone and face-to-face, with the seller. He then instructed solicitors to act on the basis that his son (who was under full age and shared three of his father's four names) was to be the purchaser of the house, and the solicitors apparently agreed to proceed on that basis. The father signed the contract, although not with his normal signature. The Court of Appeal upheld the deputy judge's refusal of the father's claim for specific performance. That result can readily be supported, if only on the 'clean hands' principle. But the reasoning in the case is difficult, very largely because the facts are not only unusual but also obscure. The father gave evidence most of which was rejected as false, and the solicitors instructed by the father did not give evidence. But I am of the clear opinion that the decision does not assist the appellant in this case. So far as material, it confirms that the principle as to face-to-face negotiations does not apply to a written contract identifying the parties (as was requisite in a contract for the sale of land both before and after the coming into force of the Law of Property (Miscellaneous Provisions) Act 1989).


[193] For these reasons, and for the fuller reasons given by Lord Hobhouse of Woodborough, I would dismiss this appeal.