ABSTRACT
Du Parcq LJ: It is, in my opinion, convenient to approach the problems raised in this appeal by first considering the position of the parties at common law. It is clear that Mrs Schebsman, who was not a party to the agreement of 20 September 1940, acquired no rights under it and has never been in a position to maintain an action upon it. It is common ground, also, that the personal representatives of Schebsman (whom I will call the debtor) could not have recovered any sums which had been paid to Mrs Schebsman under the agreement as money had and received or by any process known to the common law. It is not disputed that the English company, which, under the agreement was liable to make the payments, properly performed that agreement by paying into the hands of Mrs Schebsman those sums which it had bound itself to pay to Mrs Schebsman, and, at common law, could not be called upon to pay them to the personal representatives of the debtor. Nor, I think, is it disputed, and it may be said to be self-evident, that the English company’s agreement to pay these moneys into the hands of Mrs Schebsman was a valid agreement, a breach of which would be regarded by the courts as an ‘unlawful act’ and a ‘legal wrong’. I borrow those expressions from a well known passage in the speech of Lord Lindley in South Wales Miners’ Federation v Glamorgan Coal Co.
