significant actings, heritable property, requirements of writing etc

[bananie]

another one for the law experts - i think there is a case where one party agreed to sell a house to another party on a verbal agreement only. No written contract. The buyer measured up etc and bought carpets, blinds etc and paid for a survey (i think) and other things which constituted 'significant actings', the seller then decided not to sell in the belief that no legal action could be taken as no written contract was in place. The buyer successfully sued under the law of contract (?) - significant actings. Does anyone know the case citation or the parties names. Can't find one anywhere. Thanks again!!

[fredpuli47]

Hmm. Doesn't sound very likely! Look how hard it is to get a sale of land completed ,when there's been an offer and supposed 'agreement' in writing in the usual way!

Of course, you don't need much in writing. The young whippersnappers around here will correct me, but you could sue on a written memorandum, containing very simple statements to identify the property, the parties, and the sum,and signed, under s4 of the Statute of Frauds and its equivalent under the 1925 Law of Property Act (an Act which , in any case, required a contract for the sale of land to be in writing). My late father once ensured the conveyance of a farm to him by this means, because the old farmer who was selling "didn't trust them lawyers" .The 'memorandum' was on the only scrap of usable paper he could find in his car.He did take it to his own solicitor, who was aghast at the informality! A similar kind of memorandum is still found in the catalogue at property auctions

[bananie]

i think that this was a scottish case. I must admit that I honestly can't remember if this was an example given, but i'm sure the case was between two women, and I think it was a Scottish Court of Session case. not sure though. It is NOT Moncrieff BTW!!!

[fredpuli47]

Still doesn't sound likely on the facts. Scots law has the Requirement of Writing ( Scotland) Act 1995. It also has a doctrine of 'personal bar' which is akin to our estoppel, though it has estoppel too. The Act appears to recite what has been the Scots common law.The Act requires all contracts relating to land to be in writing.However, it permits of exceptions in Section 1(3) to (5). See the Act. Briefly what it amounts to is that, if one party has been caused to act so much to their detriment by the conduct of the other (and damages are not a sufficient remedy) then defect in the writing or absence of writing is not a bar to there being a contract created. My words in brackets there reflect the case law. In one case , Rutherford Ltd v Allied Breweries Ltd 1990 SLT 249, one party had gone so far as to create and pay for all the conveyancing documents ready for the anticipated conveyance. It was held that this was not suficient to create a contract under this principle. Damages for the costs incurred were appropriate.Your case seems to fall well within the 'damages only' category.Other cases, from areas beyond sales of land, suggest the same, all the way back to Walker v Milne (1825) 2 S [new ed.] at 338

Still, let's hope you can find your case.

There's a long discussion of the principle in the European Journal of Comparative Law.With any luck this link may work and lead you to it:

http://www.ejcl.org/103/abs103-11.html

[bananie]

I think you might be right as I cannot find caselaw anywhere. I suppose that I will simply have to rely on the doctrine of significant actings and rei interventus preventing locus poenetentiae. I assume that the court, in theory could grant a decree ad factum and grant specific implement to force the party in breach to see the contract through (i.e. sell the house), however I would imagine that in the interests of fairness the court would simply award damages for the work already done so as to put the injured party back to the position he was in before entering the contract?

I looked at Rutherford v Allied Brewers and know Wolf & Wolf from class, but the interpretation that I read from Rutherford was that there was no contract as there was no consensus in idem as the latter 2 correspondences were qualified acceptances and cancelled each other out and, moreover despite this that there would not have been enought 'significant actings' anyway to suggest that the defender had thought there was a contract in place which he later relied upon it? Thanks for your help anyway. much appreciated.

[fredpuli47]

Yes, I has to trust you to look at the cases in the reports. No access here , you see, without flogging down to London ! Other rule you will have noticed by now (if only from me!) is not to trust a very brief account of a case as give in some footnote (or in a good many texts, unfortunately) :.

There was a very strange case in the link where the parties were, semble, ad idem and everything agreed apart from the price, which might seem somewhat terminal to the argument, but the court ruled that there was an enforceable contract. That's what you brief leaders for!

That said, the facts in your case didn't look to make iyt runnable under either code.Good to see that Latin still flourishes in Scots law, by the way. It's alll being suppressed in English courts, together with our law French e.g plaintiff

[bananie]

lol. thanks for your help anyway. I have access to Westlaw UK to look up cases and I couldn't live without it while studying, which helps! And the use of Latin in Scots Law is wonderful - except when you have to remember it!!