Civil Engineering Reference
In-Depth Information
may be that his standard is that to which the parties submit and that it constitutes the only
provision in the contract about quality; or it may be that his standard is an added protection,
so that performance under the contract must satisfy both the contract requirements and the
certifier . . . So far as I am aware, there is no case in which a certifier who has to certify only
according to his own standards has been held to be an arbitrator. It is not, however, possible
under this head to draw a hard and fast line between the two categories. There must always
be some room for the discretion of the certifier, however tightly the contract may be drawn.
Even if he has to certify only whether an express term has been complied with, there must be
room for the exercise of his judgment.
Cammell Laird & Co. Ltd
v.
Manganese Bronze & Brass
Co Ltd
(1934), is a case in which it was held that the satisfaction of a third party operated only
within the requirements of the contract; that is to say, it was not permissible for the third party
to put on the seller obligations as to quality outside the contract. Lord Wright said:
It is true that the clause cannot be intended to deal with matters outside the scope of the
respondents' obligations under the contract, or to enlarge these obligations except in so far
as these are enlarged because there is super-added the judgment of a third party.
Allied to this, there is a distinction between a certificate that is given only for the purposes of
a particular contract and one that, although it may be called for by a particular contract, is
not particularly related to that contract. The certifier may not then be an agent of either party.
That is so in the case of a Lloyd's certificate or of a certificate by a public analyst, or others
that may be obtainable on a fee. It has now become quite common to include among docu-
ments which have to be tendered against payment a certificate of inspection or of quality.
Certificates of this sort are addressed to all the world or to all who may be concerned. If the
phrase is not used as more than a label, they might be called certificates
in rem
, as compared
with certificates
in personam
, which deal only with particular contracts and are addressed only
to particular parties. The former carry the same meaning to all who read them. The latter may
have to be interpreted in the light of particular contractual requirements or of information
known only to the addressees. A certificate
in rem
certifies a standard of quality extraneous to
the contract. It may be the certifier's own standard or it may be taken from some public or
independent source. A certificate
in personam
may be based on the certifier's own standards
or on standards prescribed by the contract. It may be a certificate of quality or a certificate
that a contract has been carried out.
Finally, there is a distinction between a certifier whose function has been completed before
the contract is entered into and one who has a function to perform under the contract. In the
latter case there is room for an implied undertaking that he will not be improperly influenced.
In the former case there can be no room for an undertaking that relates to the future. If any-
thing is to be implied, it must be a warranty about the past. There may be grounds for implying
a warranty that the certifier has not been improperly influenced, but, so far as I know, the
point has never been decided. All the leading cases on the topic, such as
Hickman & Co
v.
Roberts
(1913) and
Panamena Europea Navigacion (Compania Limitada)
v.
Frederick Leyland
& Co Ltd
(1947) deal with certifiers whose duties arose out of the contract. It seems clear that
there cannot be the same necessity for implying a warranty in respect of the past as there is
for implying an undertaking for the future. If a building owner makes the obligation of
payment conditional on his architect's certificate of quality, he must not, for example, instruct
his architect not to be content with less than three coats of paint, for he has impliedly under-
taken that he will leave his architect free to judge independently, either by reference to the
contract requirements or to his own standards of quality, whichever the case may be, how
