- Created by: Former Member
- Created on: 09-01-20 17:09
Per Denning, L.J.: "These exempting clauses are nowadays all held to be subject to the overriding proviso that they only avail to exempt a party when he is carrying out his contract, not when he is deviating from it or is guilty of a breach which goes to the root of it. . . . The essence of the contract by a warehouseman is that he will store the goods in the contractual place and deliver them on demand to the bailor or his order. If he stores them in a different place, or if he consumes or destroys them instead of storing them, or if he sells them, or delivers them without excuse to somebody else, he is guilty of a breach which goes to the root of the contract and he cannot rely on the exempting clause.
But if he should happen to damage them by some momentary piece of inadvertence, then he is able to rely on the exempting clause; because negligence by itself, without more, is not a breach which goes to the root of the contract any more than non-payment by itself is such a breach. I would not like to say, however, that negligence can never go to the root of the contract. If a warehouseman were to handle the goods so roughly…