ABSTRACT
On a trial of preliminary issues and confirming the decision of Eady J, the Court of Appeal held as follows: in a case giving rise to potential claims in contract or tort, A Ltd may elect to sue in contract;7 A Ltd was entitled to assume the delivery documents presented are relevant to the load to which they purported to relate (see post, para 23.03), so that the misdelivery objectively amounted to a purported performance by the two sellers;8 this amounted to a breach of the undertakings as to description,9 quality and fitness, the delivery note being part of those undertakings (see post, para 14.02); and the
[13.01] 1 Per Lord Atkin in Arcos Ltd v Ronaasen & Son (set out post, para 13.12). See further post, para 13.03. 2 For discharge by subsequent agreement, see post, para 26.18. 3 At common law, it has been held that a buyer cannot exercise such an option until he knows the true
facts: see post, para 13.05. However, by statute, he may be able to treat it as a unsolicited gift: see ante, para 8.18.
