Lonergan v. W & P Food Service Limited & Anor [2002] ScotCS 118 (25th April, 2002)

Lonergan v. W & P Food Service Limited & Anor [2002] ScotCS 118 (25th April, 2002)

Clause 15.1 of the missives is void for uncertainty due to the absence of a specified starting date for the two-year period, and thus cannot operate to extinguish the warranty. Even if Clause 15.1 were effective, the warranty and indemnity obligations are collateral and independently enforceable under the Agreement and Indemnity document, which is not subject to the two-year limitation. The defenders' motion to dismiss is refused.

Citation
[2002] ScotCS 118
Parties
Pursuer: Edward Aiden Lonergan; First Defender: W & P Food Service Limited; Second Defender: Alldays PLC
Jurisdiction
Scotland
Procedural Posture
Civil (commercial Contract Dispute) / Preliminary Hearing on Relevancy and Specification (motion to Dismiss)
Outcome
Defenders' motion to dismiss refused; case to proceed.
Legal Topics
Interpretation of Contract Clauses, Warranty and Indemnity, Rectification of Documents, Uncertainty in Contract Terms, Capital Allowances
Contract Law Commercial Law Interpretation of Contract Clauses Warranty and Indemnity Rectification of Documents Uncertainty in Contract Terms Capital Allowances

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Parties

Edward Aiden Lonergan

Pursuer

W & P Food Service Limited

First Defender

Alldays PLC

Second Defender

Procedural Posture

Civil (commercial Contract Dispute) / Preliminary Hearing on Relevancy and Specification (motion to Dismiss)

Legal Issues

  1. 1 Whether Clause 15.1 of the missives is void for uncertainty due to lack of a starting date for the two-year period
  2. 2 Whether the warranty and indemnity obligations survive the expiry of the period in Clause 15.1
  3. 3 Whether the Agreement and Indemnity document constitutes a separate and continuing warranty and indemnity obligation

Ratio Decidendi

Clause 15.1 of the missives is void for uncertainty due to the absence of a specified starting date for the two-year period, and thus cannot operate to extinguish the warranty. Even if Clause 15.1 were effective, the warranty and indemnity obligations are collateral and independently enforceable under the Agreement and Indemnity document, which is not subject to the two-year limitation. The defenders' motion to dismiss is refused.

Court Disposition

Defenders' motion to dismiss refused; case to proceed.

Orders

  • Case put out By Order for discussion as to the appropriate interlocutor and further procedure.