DWS v RMS [2016] ScotSC 47 (07 July 2016)

DWS v RMS [2016] ScotSC 47 (07 July 2016)

There was no concluded contract of compromise because the parties' solicitors did not agree an essential term, namely the timescale for the pursuer's release from the mortgage. Agreement on this point was expressly insisted upon and was material to the contract. Without agreement on all essentials, no binding compromise was formed.

Citation
[2016] ScotSC 47
Parties
Pursuer: DWS; Defender: RMS
Jurisdiction
Scotland
Judgment Date
07 July 2016
Procedural Posture
Divorce Action / Preliminary Proof on Whether the Case Was Compromised by Solicitors by Written Offer and Oral Acceptance
Outcome
Action dismissed; decree of declarator and implement refused.
Legal Topics
Divorce, Compromise Agreements, Requirements of Writing, Authority of Solicitors, Essential Terms of Contract
Family Law Contract Law Divorce Compromise Agreements Requirements of Writing Authority of Solicitors Essential Terms of Contract

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Parties

DWS

Pursuer

RMS

Defender

Procedural Posture

Divorce Action / Preliminary Proof on Whether the Case Was Compromised by Solicitors by Written Offer and Oral Acceptance

Legal Issues

  1. 1 Whether a binding contract of compromise was concluded between the parties' solicitors
  2. 2 Whether all essential terms of the compromise were agreed, specifically the timescale for release from mortgage
  3. 3 Whether the compromise agreement required to be in writing under the Requirements of Writing (Scotland) Act 1995

Ratio Decidendi

There was no concluded contract of compromise because the parties' solicitors did not agree an essential term, namely the timescale for the pursuer's release from the mortgage. Agreement on this point was expressly insisted upon and was material to the contract. Without agreement on all essentials, no binding compromise was formed.

Court Disposition

Action dismissed; decree of declarator and implement refused.

Orders

  • Sustains the seventh plea in law for the defender
  • Repels the fifth plea in law for the pursuer