Gisbey Or Marshall v Marshall [1999] ScotCS 231 (5 October 1999)

Gisbey Or Marshall v Marshall [1999] ScotCS 231 (5 October 1999)

The defender's obligations under Clauses THIRD and FOURTH are primarily monetary. The provisions for erection and conveyance of a dwellinghouse are not prescriptive but permissive, offering an alternative method of performance if the defender is able and willing to do so. As the defender has neither offered nor is able to perform by erection and conveyance, the obligations resolve into pure money obligations, and the pursuer is entitled to decree for payment of £80,000.

Citation
[1999] ScotCS 231
Parties
Pursuer: Mrs Jean Gisbey or Marshall; Defender: Malcolm Marshall (otherwise known as Calum Marshall)
Jurisdiction
Scotland
Judgment Date
05 October 1999
Procedural Posture
Civil Contract/partnership Dissolution / Outer House, Court of Session Final Judgment
Outcome
Decree granted in favour of the pursuer for payment of £80,000 with interest.
Legal Topics
Enforceability of Contract Terms, Certainty in Contract, Alternative Performance of Obligations, Dissolution of Partnership, Assignment of Rights
Contract Law Partnership Law Enforceability of Contract Terms Certainty in Contract Alternative Performance of Obligations Dissolution of Partnership Assignment of Rights

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Parties

Mrs Jean Gisbey or Marshall

Pursuer

Malcolm Marshall (otherwise known as Calum Marshall)

Defender

Procedural Posture

Civil Contract/partnership Dissolution / Outer House, Court of Session Final Judgment

Legal Issues

  1. 1 Are Clauses THIRD and FOURTH of the Minute of Dissolution and Agreement unenforceable for uncertainty?
  2. 2 Is the defender's obligation primarily monetary or ad facta praestanda (to do a specific act)?
  3. 3 Does the defender have an option to perform by alternative means (erection and conveyance of a dwellinghouse) or is payment of money the only enforceable obligation?

Ratio Decidendi

The defender's obligations under Clauses THIRD and FOURTH are primarily monetary. The provisions for erection and conveyance of a dwellinghouse are not prescriptive but permissive, offering an alternative method of performance if the defender is able and willing to do so. As the defender has neither offered nor is able to perform by erection and conveyance, the obligations resolve into pure money obligations, and the pursuer is entitled to decree for payment of £80,000.

Court Disposition

Decree granted in favour of the pursuer for payment of £80,000 with interest.

Orders

  • Defender's defences repelled.
  • Pursuer's second plea-in-law sustained.