De Jong v. Gechter et al.

De Jong v. Gechter et al.

The Appellate Division’s finding of an implied condition precedent was not supportable in light of this Court’s authority in Senstad v. Makus; consequently the trial judge’s order for specific performance (with severance of the home quarter) must be restored subject to a one‑month adjustment for completion and costs awarded to the appellant.

Citation
[1978] 2 SCR 62
Parties
Plaintiff/appellant: Nick De Jong; Defendants/respondents: Bernhard Gechter and Raymonde Gechter
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
27 October 1977
Procedural Posture
Appeal to the Supreme Court of Canada From Alberta Concerning Property Contract (sale of Farm Lands) and Specific Performance Against Objection Under the Dower Act / Final Appeal to Supreme Court of Canada; Disposition of Appeal and Restoration of Trial Judgment With Variation
Outcome
Appeal allowed; Appellate Division judgment set aside; trial judgment restored with variation.
Legal Topics
Specific Performance, Dower (spousal Consent to Disposition), Implied Condition Precedent, Severance of Homestead
Source Language
English
Property Law Contract Law Equity Family Law (spousal Rights) Specific Performance Dower (spousal Consent to Disposition) Implied Condition Precedent Severance of Homestead

Case Brief

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Parties

Nick De Jong

Plaintiff/appellant

Bernhard Gechter and Raymonde Gechter

Defendants/respondents

Procedural Posture

Appeal to the Supreme Court of Canada From Alberta Concerning Property Contract (sale of Farm Lands) and Specific Performance Against Objection Under the Dower Act / Final Appeal to Supreme Court of Canada; Disposition of Appeal and Restoration of Trial Judgment With Variation

Legal Issues

  1. 1 Whether the wife’s refusal to acknowledge consent created an implied condition precedent to the contract
  2. 2 Whether specific performance should be granted despite lack of spousal consent under the Dower Act
  3. 3 Whether the remedy may include severance of the home quarter to allow performance

Ratio Decidendi

The Appellate Division’s finding of an implied condition precedent was not supportable in light of this Court’s authority in Senstad v. Makus; consequently the trial judge’s order for specific performance (with severance of the home quarter) must be restored subject to a one‑month adjustment for completion and costs awarded to the appellant.

Court Disposition

Appeal allowed; Appellate Division judgment set aside; trial judgment restored with variation.

Orders

  • Appeal allowed
  • Judgment of the Appellate Division set aside