Barratt Scotland Ltd v Keith
| Jurisdiction | Scotland |
| Judgment Date | 10 December 1992 |
| Docket Number | No. 15 |
| Date | 10 December 1992 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Lord Penrose
Prescription and limitationHeritable property and conveyancingMissives of saleWhether term in missives an "oligation relating to land"Whether obligation to deliver a good and marketable title by delivering a valid disposition an "obligation relating to land"Whether subject to short or long negative prescriptionPrescription and Limitation (Scotland) Act 1973 (cap. 52), sec. 6 and Sched. 1, paras. 1 and 21
A company raised an action, seeking implement, and alternatively damages, against the seller under missives entered into between them, dated 24th and 28th October and 3rd November 1975. They primarily sought implement of the seller's obligation in clause 4 of the missives to deliver a valid disposition to the company in exchange for the purchase price. At a hearing before the Lord Ordinary (Penrose), the pursuers' plea-in-law, that the defender's averments were irrelevant or lacking in specification, was upheld to the extent of repelling the defender's first and third pleas-in-law, respectively, that the pursuers were personally barred from insisting in the action and that the right of action had prescribed under sec. 6 of the Prescription and Limitation (Scotland) Act 1973, and a proof before answer was allowed. The defender thereafter reclaimed to the Inner House of the Court of Session, and argued: (1) that the Lord Ordinary had erred in holding that the obligation in the missives was an obligation relating to land under para. 2 (e) of Sched. 1 to the 1973 Act, and was subject to the long negative prescription; and (2) that the Lord Ordinary had erred in holding that the pursuers' averments of loss were sufficiently relevant and specific to go to proof before answer.
Held (aff. judgment of Lord Penrose) (1) that, having regard to the natural and ordinary meaning of the words in para. 2 (e), the obligation in the missives to deliver a disposition of heritable subjects was an obligation relating to land, as the seller was thereby obliged to convey his whole right, title and interest in the heritable subjects being sold; (2) (per the Lord Justice-Clerk (Ross) and Lord Kirkwood), that this was also supported by the fact that prior to the passing of the Act, missives were subject to the long negative prescription and, if Parliament had intended to change this, evidence of their clear intention in the words of the Act would need to be demonstrated; and (3) that the obligation in the...
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