Highland & Universal Properties Ltd v Safeway Properties Ltd (No.2)
| Jurisdiction | Scotland |
| Judgment Date | 01 February 2000 |
| Date | 01 February 2000 |
| Docket Number | No 33 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Penrose
Practice—Decree—Decree ad factum praestandum—Landlord and tenant—Tenant undertaking to keep premises open “throughout normal hours of business” and to sell all goods sold in a “high class retail store”—Whether specific implement competent—Whether specific implement should almost always be refused in exercise of court's discretion—Whether obligation void from uncertainty—Whether obligation sufficiently specific to be enforceable by specific implement
The pursuers were the landlords of a shopping centre in which the defenders were tenants of a unit from which they operated a supermarket store. In terms of sub-cl 12(a) of cl THIRD of the lease between the parties, the tenants undertook, inter alia, to keep the premises open for the trade specified in sub-cl 13(a) “throughout normal hours of business”. In terms of sub-cl 13(a) the tenants undertook, inter alia, not to “suffer or permit the premises to be used otherwise than for the retail sale of goods which may from time to time be sold in a high class retail store”. The lease was to endure until 24 March 2009. After the tenants had publicly announced their intention to close the store in 1995, the landlords raised an action concluding for declarator and an order on the tenants to keep the store open for retail trade in any such goods as are from time to time sold in a high class retail store throughout the normal hours of business until the earliest of 24 March 2009, or the irritancy or other lawful termination of the lease, or its assignation. At proof the tenants' primary contention was that the obligations imposed by sub-cls 12(a) and 13(a) were so unspecific as to render the clause void from uncertainty and, in any event, were insufficiently specific to form the basis of a decree of specific implement. The Lord Ordinary (Penrose) rejected the tenants' contention and pronounced an order for specific implement in the terms sought. The tenants reclaimed and argued,inter alia, that it was incompetent to ordain a party to carry on business from moment to moment over a period of time and, alternatively, that specific implement should almost always be refused in the exercise of the court's discretion.
Held (1) that specific implement was competent: there was no doubt that in Scots law, unlike English law, a party to a contractual obligation was, in general, entitled to enforce that obligation by decree for specific implement as a matter of right, subject to a residual discretion in the court to refuse such an order (pp 298F–G, 304C, 309D–E); (2) that the court's discretion to refuse specific implement fell to be exercised only in exceptional circumstances where there existed very cogent reasons to refuse it and, in particular, where to grant it would be inconvenient and unjust, or cause exceptional hardship (pp 298F, 304C, 311F); (3) that the terms “high class retail store” and “normal hours of business” did not render the obligation in question void from uncertainty and (with the qualification that the business hours should be those “in the retail trade”) the Lord Ordinary's order for specific implement was sufficiently specific in its terms (pp 298F, 304C, 317H–I, 318H–I, 319C); and reclaiming motionallowed in part.
Church Commissioners for England v Abbey National PLCSC 1994 SC 651 considered.
Highland and Universal Properties Limited brought an action in the Court of Session against Safeway Properties Limited concluding for declarator and implement of obligations contained in a lease between the parties.
The cause came to proof before answer before the Lord Ordinary (Penrose).
At advising, on 12 January 1998, the Lord Ordinary pronounced declarator and an order for specific implement in the terms sought by the pursuers.
The defenders reclaimed.
Cases referred to:
Begg v JackUNK (1875) 3 R 35
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)
Church Commissioners for England v Abbey National PLCSC1994 SC 651
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) LtdELR [1998] AC 1
Co-operative Insurance Society Ltd v Halfords LtdSC 1998 SC 212
Co-operative Wholesale Society Ltd v Saxone Ltd 1997 SLT 1052
Coutts v CouttsUNK (1861) 4 M 802
Dempster (R & J) Ltd v Motherwell Bridge & Engineering Co LtdSC 1964 SC 308
Fleming v Hislop (1886) 13 R (HL) 43
Fleming & Ferguson Ltd v Paisley MagistratesSC 1948 SC 547
Grahame v Magistrates of Kirkcaldy (1882) 9 R (HL) 91
Grosvenor Developments (Scotland) plc v Argyll Stores Ltd 1987 SLT 738
Hendry v MarshallUNK (1878) 5 R 687
Moore v PattersonUNK (1881) 9 R 337
Munro v Liquidator of Balnagown Estates Co LtdSC 1949 SC 49
Overgate Centre Ltd v William Low Supermarkets Ltd1995 SLT 1181
Patoner Ltd v Lowe (1985) EGLR 540
Postel Properties Ltd v Miller & Santhouse plc1993 SLT 353
Retail Parks Investments Ltd v Royal Bank of Scotland (No 2)SC 1996 SC 227; 1995 SLT 1156 (Outer House)
Ropemaker Properties Ltd v Noonhaven LtdUNK (1989) 2 EGLR 50
Salaried Staff London Loan Co Ltd v Swears & Wells LtdSC 1985 SC 189
Stewart v Kennedy (1890) 17 R (HL) 1
Visionhire Ltd v Britel Fund Trustees Ltd 1991 SLT 883
Webster v Lord AdvocateSC 1985 SC 173
White and Carter (Councils) Ltd v McGregorSC 1962 SC (HL) 1
Textbooks, etc referred to:
Burn Murdoch, Interdict, pp 167 and 511
Gloag, Contract (2nd ed), pp 655 and 657 et seq
Maclaren, Court of Session Practice, p 387
Scottish Law Commission, Remedies for Breach of Contract(Discussion Paper No 109) (1999), paras 6.2 and 6.10
Stair, Institutions, 1.17.16
The cause called before the First Division, comprising the Lord President (Rodger), Lord Kirkwood and Lord Kingarth for a hearing on the summar roll.
At advising, on 1 February 2000—
LORD PRESIDENT (Rodger)—I agree with the opinion of Lord Kingarth and merely add a few observations of my own in deference to the general arguments to which we listened.
In some respects those arguments were merely the latest round of a dispute which has endured for nearly 1000 years since the time when the Digest was discovered. Although, as Lord Hoffmann points out inCo-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd at p 11, there is a difference in the availability of the remedy of specific performance or implement between English law and certain Civil law systems, that difference does not derive from any basic characteristic of Civil law systems as such. After all, the paradigm of these systems, classical Roman law, operated with a formulary procedure, one of the distinguishing marks of which was that the decree against the defendant (condemnatio) was for a sum of money (pecuniaria). Modern research cannot account for the tenacious grip of this rule except as a characteristic which can only be understood in the light of the Roman attachment to tradition. There are signs that the position was somewhat different in Justinianic law. At all events, when mediaeval scholars came to examine the Digest texts on the question, they distinguished between obligations in which the debtor was bound to give (dare) something and those where he was bound to do (facere) something. Most jurists considered that the debtor was obliged to render precise performance of an obligation to give something, whereas a debtor was not obliged to render precise performance of an obligation to do something—he was only obliged to pay the creditor the value (interesse) of having the obligation performed.
The controversy was pursued in succeeding generations, but for Scots law the basic approach was settled by Stair, Institutions 1.17.16. Stair says that, when a debtor has delayed, “it is in the creditor's option to pursue for performance, or for damage and interest” and goes on to explain: “In obligations which are not in dando but in faciendo, the common opinion of the doctors is, that there can be no pursuit for performance, but only for interest; for before the delay there is no pursuit, and after, the creditor cannot pursue for performance, but for interest, l.13. in fine ff.de re judicata; but it seems more suitable to equity, that it should be in the creditor's option even after the delay, either to suit for performance or interest, as he pleaseth, if both be prestable.”
Stair cites D.42.1.13.1, Celsus 6 digestorum, one of the passages which recurs in discussions of this topic. In it Celsus justifies a particular decision that judgment should be for a sum of money by saying that this is what happens “in all obligations of doing (faciendi).”
Even from the terms of the passage from Stair, it is apparent that our law could have adopted a different approach and pursued a different path. But in fact from his time onwards Scots law has recognised that, even where the obligation of the debtor is to do something, the basic rule is that the creditor has a choice of remedies: he may either seek specific implement of the obligation or damages. Taking its cue from the Roman-Dutch writers, South African law has been settled on not dissimilar lines: Benson v S A Mutual Life Assurance Society.
The classic statement of our law is to be found in the speech of Lord Watson in Stewart v Kennedy at pp 9–10: “I do not think that upon this matter any assistance can be derived from English decisions; because the laws of the two countries regard the right to specific performance from different standpoints. In England the only legal right arising from a breach of contract is a claim of damages; specific performance is not matter of legal right, but a purely equitable remedy, which the court can withhold when there are sufficient reasons of conscience or expediency against it. But in Scotland the breach of a contract for the sale of a specific subject such as landed estate gives the party aggrieved the legal right to sue for implement, and although he may elect to do so, he cannot be compelled to resort to the alternative...
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