Rodger (Builders) Ltd v Fawdry and Others
| Jurisdiction | Scotland |
| Judgment Date | 23 June 1950 |
| Docket Number | No. 51. |
| Date | 23 June 1950 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Sorn.
Heritable PropertySale of heritageBona fide purchaserPurchaser's knowledge of prior contract for saleSeller's assurance that prior contract no longer in forceNo independent inquiry by purchaserDisposition recordedReduction of disposition.
Heritable PropertySale of heritagePrice to be paid on stipulated dayWhether failure to pay timeously a ground for rescinding contractSeller's right on failure to impose subsequent time limit.
The owner of heritable property entered into missives with purchasers for its sale. Part of the price was paid at the date of the missives, the remainder being payable at the date of entry. A fortnight after that date, the price being unpaid, the seller warned the purchasers that, failing payment within three days, the contract would be at an end. On the expiry of the ultimatum without payment, the seller entered into missives with a second purchaser, assuring him that the prior contract, of which the second purchaser was fully aware, was no longer in force, but the second purchaser made no independent inquiry into the matter. The seller, shortly thereafter, executed a disposition in favour of the second purchaser's wife, which was recorded without delay by the second purchaser's solicitors in the knowledge that the first purchasers were asserting their rights. The first purchasers then brought an action in which they concluded for reduction of the second missives and the disposition following thereon. No suggestion was made by them of any dishonest intention on the part of the second purchaser.
The Court granted the decree craved, holding that, where an intending purchaser of heritable property is aware of a prior contract for the sale of the subjects, he is bound to inquire into the nature and result of that contract and he is not entitled to rely upon an assurance by the seller that the prior contract is no longer in existence; and his failure to make the necessary inquiries is sufficientper se to deprive him of the character of a bona fidepurchaser.
Held further, by the Lord Ordinary (Sorn) (whose judgment on this point was not challenged in the Inner House) that the seller was not entitled to rescind his contract with the first purchasers, in respect that failure to pay by a stipulated date is not in general a ground for rescinding a contract for the sale of heritage, and that there was not in this case such unnecessary or unjustifiable delay in payment as, on its occurrence, entitles a seller to impose a reasonable time limit within which a failure to pay allows him to rescind the contract.
Rodger (Builders), Limited, Earlston, brought an action against (1) Mark Fawdry, London, (2) Adam Bell, St Boswells, and (3) Mrs Marjorie Katharine Montagu Douglas Scott or Hacket Pain or Bell, in which they concluded, inter alia, for (1) declarator that the first-named defender had failed to implement and fulfil missives of sale between him and the pursuers dated 9th July 1947, and, in particular, had failed to execute and deliver to the pursuers a valid disposition of the estate of the Haining; (2) production and reduction of purported missives of sale dated 28th November 1947 passing between the solicitors acting on behalf of the first-named and second-named defenders and containing a pretended offer and acceptance for the purchase of the estate; (3) production and reduction of a pretended disposition of the estate dated 22nd and recorded 23rd December 1947 and purporting to be granted by the first-named defender in favour of the third-named defender; (4) decree ordaining the first-named defender to implement the missives between him and the pursuers and, in particular, to execute and deliver to the pursuers a valid disposition of the estate.
The facts of the case as established at a proof before the Lord Ordinary are fully set forth in his opinion and in the opinion of Lord Jamieson. Briefly stated they were as follows:By missives of sale dated 9th July 1947 the pursuers, Rodger (Builders), Limited, offered to purchase and the first-named defender, Fawdry, agreed to sell the estate of the Haining, part of the price being paid at the date of the signing of the missives, the remainder being payable at 11th November 1947, the date of entry. No payment having been made at that date, and the seller being doubtful of the financial stability of the purchasers, his agents wrote on 25th November to the purchasers' agent...
To continue reading
Request your trial
- Gibson v Royal Bank of Scotland Plc
-
Johnstone v Harris
...to mitigate their loss, so long as performance remained possible. Dicta of Lord Sorn in Rodger (Builders) Limited v. Fawdry and OthersSC1950 S.C. 483 at p. 492 followed. Peter Alexander Johnstone and Others, the trustees and executors of the late John William Johnstone, brought an action ag......
-
Alan Jones+mrs. Brenda Margaret Jones V. Andrew Stuart Wood+mrs. Margaret Wood+john Derek Thomson Bogie
...sought to place reliance on the so-called "offside goals rule" mentioned by Lord Justice Clerk Thomson in Rodger (Builders) Ltd v Fawdry 1950 SC 483 at 501. [20]Finally, Mr Upton made the separate point formulated in the minuter's supplementary grounds of appeal (No. 37 of process). The she......
-
Frank Houlgate Investment Company Limited V. Biggart Baillie Llp
...Bank (1893) 20 R (HL) 59, Lord Herschell LC at 60). Bad faith also underpins the offside goals rule (Rodger (Builders) Ltd v Fawdry 1950 SC 483, Lord Jamieson at 499). In Rodger (Builders) Ltd the court held that knowledge rather than moral delinquency was sufficient to undermine the defend......
-
Land Registration and the Decline of Property Law
...“offside goal” in this context comes from the judgment of Lord Justice-Clerk Thomson in the leading case of Rodger (Builders) Ltd v Fawdry 1950 SC 483 at 501. For accounts of the rule, see e.g. K G C Reid, The Law of Property in Scotland (1996) paras 695-700; D Brand, A J M Steven and S Wor......
-
Analysis
...that there are divergences on certain points. According to the offside goals rule's locus classicus:2424Rodger (Builders) Ltd v Fawdry 1950 SC 483 at 499 per Lord If an intending purchaser is aware of a prior contract for the sale of the subjects, he is bound to inquire into the nature and ......