Third party rights contract law problem question. The given case is concerned with Harrys rights over the owl which is now in the possession of McGonagall. In advising Harry this essay shall try to establish whether there was a contract between S

However it is necessary to take external factors into account while trying to establish whether a contract existed between Snape and McGonagall. English law employs the tort of conversion rather than the law of property in cases where there is customer other than the one intended. This give rise to a generally recognised legal principle called ‘Nemo dat quod non habet’, a Latin phrase that literally translates to “no one [can] give what he does not have”.  This law was brought about to protect the rights of the true owners of the goods in question. This view was reinforced by s21(1) of the Sale of Goods Act 1979 “Subject to this Act, where goods are sold by a person who is not their owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.” (Office of Public Sector Information 1979). Therefore if the principle of Nemo dat quod non habet can be applied Snape would be ruled as not being the rightful owner of the goods and thereby making the contract between Snape and McGonagall void.

Before examining whether the legal principle of Nemo dat quod non habet applies in this case, by searching for the absence of a contract between Harry and Snape, it is important to establish the role of Ron in the proceedings of the case at hand. The facts of the case seem to suggest that Harry employed Ron as an agent in order to carry out the sale of an Owl to Dumbledore. This kind of an agent is referred to as a special agent who is authorised to carry out only this one transaction. In the given case Ron has been given actual express authority to carry out the transaction. English law states that as long as the principal (i.e. the main owner) is disclosed to the third party involved in the contract then the agent has no liability as he is merely acting on behalf of the principal. However if the third party (i.e. buyer) was not informed about the person he was dealing with being an agent for the principal the agent might have to bear some liability. From the facts of the case it is unclear as to whether this communication was made. However had this communication been made it needs to be assessed whether Ron was acting within the scope of his authority. Was his authority limited to selling to Dumbledore and was making the sale to Snape beyond his authority? If it was beyond his authority then Ron is likely to be liable for conducting duties which he was not authorised. However in the case of Smout v Ilbery it was established that if the agent believes that he possesses the authority to carry out the transaction he will not be liable. In this instance it can be argued that Ron believed the person he was dealing with to be Dumbledore and therefore he believed he possessed the authority and is likely to escape any liability.

Since it has been established that it is most likely that Ron was an agent in the transaction, the contract would have the same effect even if the agent was absent. Therefore we can directly examine whether there was a contract between Harry and Snape. Snape made an offer to buy the owl from Ron on behalf of Harry. Ron accepted the offer by selling the owl to Snape on behalf of Harry and handed over the money to Harry. It is fairly easy to establish consideration and an intention to create legal relation. However even though on the surface the case might seem straight forward the court can rule the contract void if it can be established that there was a unilateral mistake as to the identity, thereby ruling that there never was a 'meeting of minds' in the offer and acceptance, making the contract void. Mistaken identity can make a contract void only if it can be proved that the issue of identity was central to the contract being formed. Lord Denning in the case of Lewis v Averaystated that “It has been suggested that a mistake as to identity of a person is one thing; and as to his attributes is another.” In establishing unilateral mistake to identity it is necessary to make this distinction, since only if the identity of the person was central to establishing the contract, can the contract be set aside. Attributes of the buyer itself cannot make a contract void. Lord Denning however does not agree with this distinction and thinks it is without difference. There have been irreconcilable decisions within this branch of the law Phillips v Brooks was ruled voidable for fraudulent misrepresentation rather that mistake as to identity and in Ingram v Little the contract was ruled void even though there was some form of face-to-face interaction between the parties. The law of contract also draws a distinction between written contract and face-to-face contracts. This distinction was clearly drawn out in the case of Cundy v Lindasy, where a contract can be made void if there is a written contract, as opposed to a face-to-face contract where you are dealing with the person present in front of you. In the most recent case of Shogun v Finance Ltd v Hudsonthe Lords treat the basic issue as involving offer and acceptance, objectively ascertained. Shogun upheld the distinction between written and face-to- face contracts supported in Cundy. Critics argue that such an approach is against the traditional approach of English law towards treating all forms of contract written or unwritten the same. It also disadvantages the innocent third party. It is also important to note that such cases usually apply only to rouge’s and some judges think that such a principle accords better with basic principle regarding the effect of fraud on the formation of a contract (Lord Nicholls in Shogun Finance Ltd. V Hudson).

However while applying these laws to the case at hand it is necessary to understand what Harry’s primary aim of selling the owl was. Whether Dumbledore’s identity was central to the contract, and whether Harry could claim his owl back. The objective benefits Harry would have received from Dumbledore i.e. £10,000 is the same as what he received from Snape. Therefore it is arguable that the identity of the individual was central to the formation of the contract. However if the identity of the person was central to the contract then it needs to be established whether there was a written or face-to-face contract. There is a written element to the contract which is the e-mail sent by Ron, this is similar to the fax sent by the fraudster in the case of Shogun, and can be considered to be a written contract and the fact that it was sent to the multiple addresses is irrelevant since it still clearly had the name on the e-mail as seen in the case of Cundy. However this case gets complex because Snape eventually make a face-to-face contract with Ron when he meets him. Snape is the offeror and Ron the offeree. Therefore it can be argued that:

1. It was a face-to-face contract, with Snape making the offer.
2. Identity was not central to the contract, since Harry would have benefited in the same manner irrespective of who he sold the owl to.

It is most likely that in this case the courts will find a contract to be held between Harry and Snape and thereby honouring the contract between Snape and McGonagall. The courts will also be helped by the fact that it is hard to categorise Snape as a fraud since he paid the required amount. Further to this there was a considerable time lapse between when the owl was sold and the truth discovered making it less likely for the court to find in favour of Harry (Leaf v International Galleries). Therefore there is a high likelihood that the case will be in favour of the innocent third party McGonagall.