CHRISTODOULO SKUTARIDI ν. ANASTASSI PAPA VARNAVA (V2) 1 CLR 89 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V2) 1 CLR 89 1892 November 10 [SMITH, C.J. AND MIDDLETON, J.] CHRISTODOULO SKUTARIDI Plaintiff, v. ANASTASSI PAPA VARNAVA Defendant. CONTRACT-RESTRAINT OF TRADE-DAMAGES FIXED BY CONTRACT FOR BREACH-LIABILITY. The plaintiff and defendant entered into an agreement by which defendant undertook to cultivate certain of his lands specified in the agreement for their joint account, the plaintiff undertaking to find the seed, and the water necessary for the irrigation of the lands. The defendant undertook not to cultivate more than 40 donums of land exclusive of those specified in the agreement, and a clause in the agreement bound either party to pay to the other in case of breach of the agreement the sum of £20 as damages. In an action to recover £20 for breach of the agreement by the defendant in cultivating more than 40 donums of land for his own account. HELD (reversing the decision of the District Court): That the contract was not void as being in restraint of trade and contrary to public policy, and that it was not necessary for the plaintiff to prove the damage he had sustained before he was entitled to recover the sum agreed on in the contract as damages. APPEAL from the District Court of Nicosia. The action was brought to recover the sum of £20 alleged to be due under an agreement. The plaintiff and defendant entered into an agreement on the 17th October, 1890, by which the defendant undertook to cultivate certain specified lands belonging to him for the joint account of the plaintiff and himself. The agreement provided that the plaintiff should provide the seed and the water for irrigation; that the expenses of sowing, reaping and harvesting the crops should be borne by the defendant, and that the produce should be equally divided between them. The agreement further provided that the defendant should be at liberty to cultivate on his own account not more than 30 to 40 donums of land, exclusive of the lands specified in the agreement, and it contained a clause stating that if either party did anything in contravention of the "agreements in the present contract" he should pay £20 as damages to the other. A further clause stated that if plaintiff found that defendant had cultivated other land in partnership he should be entitled to take "it" as a penalty. The plaintiff alleged two breaches on the part of the defendant:
(1)that he had neglected to sow one piece of land specified in the agreement, and
(2)that he had cultivated on his own account about 100 donums of land instead of 30 or 40. The defendant pleaded that he had been prevented from cultivating the piece of land, by the fact that it had, owing to excessive rain, become too damp for cultivation; and he denied the other breach. Evidence was called on behalf t the plaintiff to show that the piece of land was cultivable, and also that the defendant had cultivated 100 donums of land on his own account. At the conclusion of the plaintiff's case the Court gave judgment or the defendant, on the ground that the contract was in restraint of trade and contrary to public policy, and that the plaintiff ought to have shown that he had sustained damage before he was entitled to recover. The plaintiff appealed. Pascal Constantinides, for the appellant. The contract is one voluntarily entered into by the parties, and there is no suggestion of force or fraud. The contract is not in restraint of trade. The undertaking by the defendant not to cultivate more than 40 donums on his own account, is entered into to oblige him to devote his time and attention to the proper cultivation and irrigation of the 151 donums to be cultivated under the contract. The Court below was wrong in deciding that the plaintiff must prove damages before he can recover. It was unnecessary for him to do so, as the very object of the agreement is that he shall not have to do so. The damages are agreed on in the contract. In a commercial contract, if the parties like to agree as to the amount of damages, they can do so; and there is no reason why the agreement in this case should not be respected. Diran Augustin, for the respondent. The defendant was prevented by the act of God from cultivating the one piece of land, and could have proved that he had not cultivated more than the 40 donums. The plaintiff ought to have shewn that he had sustained loss. I know of no law which supports this proposition, but it depends on general principles of equity. Judgment: This is an action founded on an agreement to cultivate land in partnership, the plaintiff undertaking to find the seed and the water necessary for irrigation, and the defendant the land and the labour. The defendant undertook not to cultivate on his own account more than 40 donums of land, and the agreement contained a clause that if either party acted in contravention of the "agreements in the contract" he should pay £20 by way of damage to the other. The plaintiff alleged two breaches of the contract on the part of the defendant,
(1)that he had failed to cultivate a specified piece of land with beans, and
(2)that the defendant had cultivated on his own account more than 40 donums of land. Without hearing the evidence of the defendant, the District Court dismissed the plaintiff's action on two grounds:
(1)that the contract was in restraint of trade and contrary to public policy; and
(2)that the plaintiff ought to have shown that he had sustained damage. With regard to the first point, we are unable to agree with the decision of the District Court that this contract is void on the ground that it is in restraint of trade, or contrary to public policy. The stipulation restraining the defendant from cultivating on his own account more than 40 donums, is inserted in order to secure that he shall devote sufficient care and attention to the cultivation and irrigation of the 151 donums of land specified in the contract, which are to be planted with wheat, oats, barley and beans. The contract in no way prevents him from leasing to another person for the purpose of cultivation any lands he has in excess of 40 donums, the only stipulation is that he shall not devote his own time to their cultivation. With regard to the second point, we know of no provision in the Ottoman Law, which prevents two persons entering into an agreement providing that in the case of the breach of its provisions by either, one shall pay to the other a specified sum by way of damages. The contract is deliberately entered into by the two parties, and if they like to agree that the damages for the breach of it shall be fixed at £20, there is nothing to prevent their doing so. The Ottoman Law certainly contemplates that such agreements may be entered into in commercial matters; and we see no reason why a similar agreement should not be entered into in agricultural matters. We, therefore, think that the judgment of the District Court cannot be sustained, but as the defendant has not had an opportunity of calling his witnesses, the action must be remitted to the District Court. With regard to the contention that the defendant was prevented by the act of God from cultivating the one piece, we do not think that the mere fact, that owing to excessive rain the land in question was rendered too swampy for cultivation, even if he succeeds in proving this fact, will be sufficient to excuse him from performing his absolute engagement to cultivate it, though we need not give any decision on the point now. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο