Scott v Bradley

JurisdictionEngland & Wales
Date1971
Year1971
CourtChancery Division
[CHANCERY DIVISION] SCOTT v. BRADLEY [1969 S. No. 3035] 1970 Nov. 3, 4; 9 Plowman J.

Vendor and Purchaser - Memorandum in writing - Sale of land - Oral contract with material term that purchaser pay half vendor's legal costs - Payment of deposit - Receipt as memorandum in writing but omitting term - Vendor's refusal to complete - Whether purchaser entitled to specific performance on submitting to be bound by omitted term - Law of Property Act 1925 (15 Geo. 5, c. 20), s. 40 (1)

By an oral agreement made in March 1969, the vendor agreed to sell and the purchaser to buy a freehold property for the sum of £5,000. The purchaser paid a deposit of £500 and completion was due to take place in July 1969. The receipt of the deposit, duly signed by the vendor, contained the names of the parties, a description of the property and the consideration, but omitted a term of the oral agreement whereby the purchaser had agreed to pay half the vendor's legal costs of the sale. The vendor refused to complete, denied that there was a concluded oral contract, and pleaded section 40 (1) of the Law of Property Act 1925F1, alleging that the omission of the oral term as to the payment by the purchaser of half the legal costs from the receipt, rendered it insufficient as evidence of a “note or memorandum in writing.” The purchaser, by a writ dated May 22, 1969, sought an order of specific performance.

On the question as to whether the purchaser was entitled to a decree of specific performance if he agreed to an order to pay half the vendor's legal costs: —

Held, that as the vendor had signed a written document which was evidence of an oral contract for the sale of land and, since the purchaser had consented to be bound by the omitted material term that he pay half the vendor's legal costs incurred in the sale, the vendor was bound by the agreement and the purchaser was entitled to an order of specific performance of the contract.

Martin v. Pycroft (1852) 2 De G.M. & G. 785, C.A. followed.

Burgess v. Cox [1951] Ch. 383 not followed.

Dictum of Younger J. in North v. Loomes [1919] 1 Ch. 378, 385 and Hawkins v. Price [1947] Ch. 645 considered.

The following cases are referred to in the judgment:

Burgess v. Cox [1951] Ch. 383; [1950] 2 All E.R. 1212.

Hawkins v. Price [1947] Ch. 645; [1947] 1 All E.R. 689.

Martin v. Pycroft (1852) 2 De G.M. & G. 785, C.A.

North v. Loomes [1919] 1 Ch. 378.

The following additional cases were cited in argument:

Chillingworth v. Esche [1924] 1 Ch. 97, C.A.

De Lassalle v. Guildford [1901] 2 K.B. 215, C.A.

Jaques v. Millar (1877) 6 Ch.D. 153.

ACTION

The purchaser, Michael Scott of 6, Coburgh Mansions, Hendel Street, London, entered into an oral agreement on March 19, 1969, with the vendor, Mrs. D. H. Bradley to buy the freehold property 8, Wave Crest, Whitstable, Kent, for the sum of £5,000. The purchaser paid a deposit of £500 and obtained a receipt setting out the terms of the oral agreement and signed by the vendor over a 6d. stamp. The parties had agreed orally that the purchaser should pay half the vendor's legal costs which would have amounted to £35, but that term of the contract was not incorporated into the receipt although the purchaser had confirmed the term by a letter of March 19. Completion was due to take place on or about July 21, 1969, but the vendor refused to complete. By a writ issued on May 22, 1969, the purchaser sought, inter alia, an order of specific performance of the contract.

Benjamin Levy for the purchaser.

Guy Seward for the vendor.

Cur. adv. vult.

November 9. PLOWMAN J. read the following judgment. This is a purchaser's action for specific performance. The purchaser's case is that on March 19, 1969, the vendor orally agreed to sell to him the property 8, Wave Crest, Whitstable, Kent, for £5,000; that he paid a £500 deposit land obtained a receipt setting forth the terms of the oral agreement, and that the vendor now refuses to go on with the sale. The receipt in question is as follows:

“March 19, 1969, received the sum of £500 from Mr. M. Scott, 6 Coburgh Mansions, Handel St., London, W.C.1. as deposit on and in part payment for freehold property known as 8, Wave Crest, Whitstable, the full purchase price being £5,000, the balance of £4,500 to be paid on completion which as agreed is to be on or before July 21, 1969.”

That is then signed by the vendor over a 6d. stamp and the date which the vendor originally inserted is March 19, 1968, which has been altered by her to March 19, 1969, and initialled.

The vendor denies that any agreement for sale was concluded. She alleges that what took place on March 19, 1969, was no more than negotiation subject to contract. Alternatively, she submits that if an oral agreement was concluded, it included a term that the purchaser would pay half the vendor's legal costs of the sale, that such term is missing from the receipt, and she pleads section 40 of the Law of Property Act 1925.

The purchaser in reply admits that he did agree to pay half the vendor's legal costs of sale but claims such agreement was not part of the agreement for sale but an independent undertaking or a collateral contract. Alternatively he pleads that it was not a material term of the agreement for sale. He submits to an order that he should pay the agreed costs as a term of getting an order for specific performance.

I have heard the evidence of the purchaser and his wife and of the vendor as to what happened on March 19, 1969, and I find the following facts. (1) The vendor and the purchaser did then conclude a binding oral agreement for the sale by the vendor to the purchaser of no. 8 Wave Crest at the price of £5,000. (2) Such agreement was not subject to contract. (3) The term in regard to the vendor's legal costs was a term of the agreement for sale and not an independent or collateral bargain. (4) While I have some difficult in appreciating what “material” means in this context, the missing term was a material term in the sense that the vendor was unwilling to sell the property to the purchaser for the £5,000 which he had offered, and it was his offer to pay half the vendor's legal costs in...

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11 cases
  • O'Mullane v Riordan
    • Ireland
    • High Court
    • 1 January 1978
    ...was to the benefit of the defendant, the plaintiff could concede it so as to cure its omission from the memorandum. Scott v. BradleyELR [1971] Ch. 850 approved and followed. ...
  • Boyle v Lee
    • Ireland
    • Supreme Court
    • 1 January 1992
    ...v. Miller (1878) 3 App. Cas. 1124; [1874-80] All E.R. 465; 48 L.J. Ch. 10; 39 L.T. 173; 42 J.P. 804; 26 W.R. 865. Scott v. Bradley [1971] 1 Ch. 850; [1971] 2 W.L.R. 731; [1971] 1 All E.R. 583; (1970) 115 S.J. 172. Simpson v. Hughes (1896) 66 L.J. Ch. 143; 75 L.T. 487; 45 W.R. 221; 41 Sol. J......
  • J.n. Roland Deneault & Scott Ltd Lowe, Bingham & Matthews v Yangtzekiang Garment Manufacturing Co Ltd
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 16 June 1977
    ...agree: the term was one of substance although minor in proportion to the subject matter of the sale and purchase: see Scott v Bradley 1971 Ch. 850. It also was "an essential part of the bargain": see Hawkins v Price 1947 1 Ch. 645. That the trial judge was of the same opinion appears from h......
  • Intercommercial Bank Ltd v Global Dynamics Ltd
    • Trinidad & Tobago
    • Court of Appeal (Trinidad and Tobago)
    • 29 May 2013
    ...to the defendant.” This position is inconsistent with Martin v. Pycroft which was not referred to by the Judge in his judgment. 23 In Scott v. Bradley [1971] 1 ALL E.R. 583 the term omitted from the written agreement was that the purchaser would pay half of the vendor's legal costs. The que......
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