You may have heard of zero-hours contracts, where an employer is not required to provide any fixed hours of work to an employee. It seems that about 1.8 million employees had the fortune or misfortune, depending on how you look at it, to be employed on this basis in the UK in 2017.
Now we have confirmation from the Court of Appeal of its commercial cousin, the zero-quantity contract. In the recently-reported case of PM Law Ltd v Motorplus Ltd  EWCA Civ 1730, the Court of Appeal was asked to interpret a contract between a claims company and a firm of personal-injury solicitors. The contract provided that the claims company would refer to the solicitors “a quantity” of accident claims. In context, the Court of Appeal agreed with the judge at first instance that this was merely an expression of intention and did not impose an enforceable obligation to refer any claims. Or, put another way, zero is a quantity.
The clause in question included the following provisions (emphasis added):
1. In consideration of the payment of referral fees by PM Law Ltd Solicitors as set out in clause 4 of this Agreement Motorplus Ltd shall refer a quantity of road traffic accident, accident at work, public or private liability and product liability PI & Non PI claims (the “Referred Claims”) to PM Law Ltd Solicitors which PM Law Ltd Solicitors will handle on behalf of Motorplus injured customers (“the Referred Customers”)…
Counsel for PM Law argued that this wording imposed an obligation on Motorplus to refer at least a reasonable number of claims. The Court of Appeal disagreed. In context, there was no obligation to refer, only a mechanism for what would happen if claims were referred.
Or, as the judge at first instance put it more technically (some would say, pompously), and Asplin LJ in the Court of Appeal repeated, it was not a “synallagmatic contract” that imposed mutual obligations.
Ah, our old friend the synallagmatic contract! It seems that this is primarily a civil-law concept. Lord Diplock may be guilty of introducing the term into English law. As a Court of Appeal judge in United Dominions Trust (Commercial) Limited v Eagle Aircraft Services Limited  1 WLR 74, he defined a contract as a bi-synallagmatic agreement. IP Draughts agrees with the criticism that this was “gratuitous philological exhibitionism”, though he would never have dared say so publicly, while Lord Diplock was alive.
Lord Denning’s reaction to his great rival’s use of the term, in the final volume of his autobiography, The Closing Chapter, was expressed in more polite language, but was equally damning in its effect:
A little while ago, I heard of a contract being a synallagmatic contract. I had never heard of such a contract before. Nor had any other lawyer of my acquaintance. Nor had any textbook writers. At any rate, their textbooks did not contain the word.
It seems from the present case that the term is alive and kicking, 50 years after Lord Diplock used it in an English judgment. Shame.
It also seems, from the case report in the PM Law case, that the senior partner of PM Law, who drafted the contract, used a precedent that was “circulating in the solicitors’ personal injury market”. Readers of this blog know better than to slavishly copy wording from published precedents.