Safdar v. Shahid [2004] ScotCS 106 (30 April 2004)

Safdar v. Shahid [2004] ScotCS 106 (30 April 2004)

The pursuer's averments are sufficient to allow a proof before answer on the issues of assignation, intimation, and construction of the waiver; the action should not be dismissed at this stage. One averment regarding sufficiency of intimation is excluded as irrelevant. Proof habile modo is appropriate regarding the requirement for writ or oath.

Citation
[2004] ScotCS 106
Parties
Pursuer: Mohammed Safdar; Defender: Mohammed Shahid
Jurisdiction
Scotland
Judgment Date
30 April 2004
Procedural Posture
Civil / Interlocutory (debate on Relevancy and Exclusion of Averments)
Outcome
Proof before answer allowed; one averment excluded from probation; all other pleas reserved.
Legal Topics
Assignation of Debts, Intimation of Assignation, Waiver and Discharge of Liabilities, Proof by Writ or Oath, Interpretation of Contractual Documents
Contract Law Debt Recovery Assignment of Claims Assignation of Debts Intimation of Assignation Waiver and Discharge of Liabilities Proof by Writ or Oath Interpretation of Contractual Documents

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Parties

Mohammed Safdar

Pursuer

Mohammed Shahid

Defender

Procedural Posture

Civil / Interlocutory (debate on Relevancy and Exclusion of Averments)

Legal Issues

  1. 1 Whether the pursuer's averments are relevant regarding intimation of assignation prior to waiver
  2. 2 Whether the waiver executed by Mr Akram discharged the debts sued upon
  3. 3 Whether the alleged loans require proof by writ or oath under the Requirements of Writing (Scotland) Act 1995

Ratio Decidendi

The pursuer's averments are sufficient to allow a proof before answer on the issues of assignation, intimation, and construction of the waiver; the action should not be dismissed at this stage. One averment regarding sufficiency of intimation is excluded as irrelevant. Proof habile modo is appropriate regarding the requirement for writ or oath.

Court Disposition

Proof before answer allowed; one averment excluded from probation; all other pleas reserved.

Orders

  • Allow proof before answer on all issues except the excluded averment.
  • Sustain defender's first plea-in-law only to the extent of excluding the specified averment.