ROBERT GURNEY ANGUS Pursuer against ARCHIBALD BRYDEN and Others Defenders
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1991 |
| Date | 12 November 1991 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Before Lord Cameron of Lochbroom
Scots contract - error in expression - void
Where there was an error of expression by one party upon the formation of a contract which was known to and taken advantage of by the other party, and but for the error the party making it would not have entered the contract, the contract could be avoided.
Lord Cameron of Lochbroom so stated in the Outer House of the Court of Session, by way of obiter dicta, granting declarator upon other grounds in an action brought by Robert Gurney Angus against Archibald Bryden and others.
Mr William Nimmo Smit, QC and Mr James Peoples for Mr Angus; Mr Malcolm Scott for the defenders.
LORD CAMERON said that upon a proper construction of the contract it did not refer to the disputed sea-fishings as part of the subjects of sale, and accordingly the pursuer was entitled to declarator.
However, his Lordship would consider another argument addressed to him by the pursuer. This was an esto case and only arose on the premis that on a proper construction of the contract it did include the sea fishings.
The proposition upon which it was based, was that the defenders' solicitors upon receipt of the qualified acceptance dated October 27, 1986 knew that any reference therein to the sea fishings had been wrongly included by reason of unintentional but material error on the part of the pursuer's solicitors, knew that the defenders had not offered for nor had intended by their offer to purchase the sea fishings and that the acceptance was intended to be an acceptance of that offer and not an offer of different larger subjects for the same price.
The pursuer further averred that the unintentional error had been pointed out by the defenders' solicitors to the defenders, that the sending by the defenders' solicitors of the formal acceptance in unqualified terms had been done in the full knowledge of the unintentional error on the part of the pursuer's solicitors and that no attempt had been made, notwithstanding the terms of the unqualified acceptance, to clarify the position before sending off the formal acceptance.
The pursuer averred that in those circumstances the defenders in concluding the contract to purchase the sea fishings had not been acting in good faith.
The question was whether the pursuer was entitled to a remedy where there was no inducement to error on the part of the pursuer by the defenders but rather bad...
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