At first instance, Brightman J struck out Daulia Ltd's statement of claim for failing to comply with s.40(1) of the Law of Property Act 1925 (now, the requirement of form for contracts for interests in land under s.2, Law of Property (Miscellaneous Provisions) Act 1989).

Doubts have been expressed whether the offeror becomes bound so soon as the offeree starts to perform or satisfy the condition, or only when he has fully done so.

In my judgment, however, we are not concerned in this case with any such problem, because in my view the plaintiffs had fully performed or satisfied the condition when they presented themselves at the time and place appointed with a banker's draft for the deposit, and their part of the written contract for sale duly engrossed and signed and there tendered the same, which I understand to mean proffered it for exchange.

Actual exchange, which never took place, would not in my view have been part of the satisfaction of the condition but something additional which was inherently necessary to be done by the plaintiffs to enable, not to bind the first defendants to perform the unilateral contract.

Whilst I think the true view of a unilateral contract must in general be that the offeror is entitled to require full performance of the condition which he has imposed and short of that he is not bound, that must be subject to one important qualification, which stems from the fact that there must be an implied obligation on the part of the offeror not to prevent the condition becoming satisfied, which obligation it seems to me must arise as soon as the offeree starts to perform.

In the Court of Queen's Bench, see p. 308, Lord Campbell held that there was no contract because the vendor had revoked the auctioneer's authority to accept the plaintiff's bid, and therefore no question of the impact of section 17 of the Statute of Frauds arose.

The Exchequer Chamber agreed with this conclusion on the pleadings as they stood, but allowed an amendment, and held the defendant liable; per Martin B. as upon a contract that the sale should be without reserve, and per Willes J. and Bramwell B. upon a breach of warranty of authority to sell without reserve, and Martin B. said at pp.

The case is in any event unsatisfactory because the complaint made was that the auctioneer had refused to allow the plaintiff's agent to sign a memorandum on her behalf, but that would not have been of any use to her.

322 , so far as it goes tells against the plaintiffs but again it is distinguishable, because the action was brought on the ground that the auctioneer was personally liable as if he were vendor under a contract of sale not upon a collateral contract, and alternatively for breach of warranty of authority, but it was held that he could not be sued on the first ground because of the statute, and could not be sued for breach of warranty of authority, because there was none since, apart from the statute, he had effectively bound the vendor.

If, however, contrary to my view it be necessary that the unilateral contract should be one capable of specific performance, in my judgment it is so notwithstanding the decision of Stirling J. on motion in Johnston v. Boyes, 42 S.J.

I am fortified in this conclusion by the American case of Union Car Advertising Co. Inc. v. Boston Elevated Railway Co. (1928) 26 Fed.Rep.

So far as the second point is concerned the case is none the less persuasive authority, and as to the first, the citations in the judgment from other cases show that the concession was in truth in accordance with the law of that state, and show that law to be founded upon reasoning which commends itself to me and entirely accords with my own.

(2nd series) p. 758: "... the trustees of the defendant village entered into an oral contract wherein it was agreed that if the plaintiff would increase his plant, so that he could furnish incandescent lights for private houses in the village, the trustees would renew..." the written contract he then had for lighting its street, which would otherwise expire in 1897.

722-723: "The question is therefore presented whether damages can be recovered for the breach of an oral agreement to enter into a contract, which, under the statute of frauds, is required to be in writing.

It is true that the oral agreement to enter into the written contract might be fully performed within a year or within a day.

It is conceded that a contract for lighting for a term of five years would be void if not in writing, but if an oral agreement to enter into such a written contract is not also void, where the damages claimed for the breach of the oral agreement are not independent of it, but necessarily are the same as those which would arise from the breach of the written contract, the door would be open for the practical nullification of the statute of frauds in a large class of cases."

The law is similarly stated in 72 American Jurist (2nd Series), Statute of Frauds, para.

In my judgment, therefore, the unilateral contract in this case is prima facie unenforceable, and I turn to the third question.

Mr. Hoffmann puts his case as high as saying that by definition there can never be part performance of a unilateral contract.

I doubt whether that is right as a general principle, since in most cases the performance of the condition by the offeree is also the discharge of all his obligations and is certainly done pursuant to the inchoate contract.

In my view, however, it is unnecessary to decide these questions since in my judgment the ease fails because none of the alleged acts of part performance of themselves suggests that there was any contract between the parties.

It is only if one first looks to see what the oral contract is, and finds that it is a unilateral contract, such as pleaded in this ease, that the acts can begin to be regarded as part performance, but that is an inquiry which one is not permitted to make: see per Lord Reid in Steadman v. Steadman [1976] A.C. 536 , 541-542, where he said: "I think that there has been some confusion between this supposed rule and another perfectly good rule.

However, this case having been heard simply on an application to strike out the statement of claim as disclosing no cause of action, the motives or reasons which influenced the defendants have not been investigated, and we were informed by counsel that at the very last moment the mortgagors found a purchaser at a higher price and so they felt themselves bound to reject the plaintiffs despite the assurances they had given them.