ELIZABETH ANNE SMITH v. ALEXANDER SHEWAN STUART [2009] ScotSC 72 (23 February 2009)

ELIZABETH ANNE SMITH v. ALEXANDER SHEWAN STUART [2009] ScotSC 72 (23 February 2009)

The defender's undertaking is not an obligation relating to land but a personal obligation to pay part of the proceeds of sale, with land being incidental. Such an obligation prescribes in 5 years under the 1973 Act. The obligation only arises if and when the defender sells the land; until then, no enforceable obligation exists. The pursuer's craves are either prescribed or irrelevant and must be dismissed.

Citation
[2009] ScotSC 72
Parties
Pursuer: Elizabeth Anne Smith; Defender: Alexander Shewan Stuart
Jurisdiction
Scotland
Judgment Date
23 February 2009
Procedural Posture
Civil Action for Declarator and Implement / Debate on Prescription and Relevancy, Interlocutor
Outcome
Action dismissed; defender successful.
Legal Topics
Prescription and Limitation, Obligations Relating to Land, Unilateral Promise, Declarator, Implement, Ad Factum Praestandum
Property Law Contract Law Scots Law Civil Procedure Prescription and Limitation Obligations Relating to Land Unilateral Promise Declarator +2 more

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Parties

Elizabeth Anne Smith

Pursuer

Alexander Shewan Stuart

Defender

Procedural Posture

Civil Action for Declarator and Implement / Debate on Prescription and Relevancy, Interlocutor

Legal Issues

  1. 1 Whether the defender's undertaking is an 'obligation relating to land' under the Prescription & Limitation (Scotland) Act 1973 and thus subject to 20-year prescription or only 5-year prescription; Whether the pursuer has a relevant case for declarator and implement based on the undertaking; Whether the obligations in the undertaking are enforceable prior to a sale of the land.

Ratio Decidendi

The defender's undertaking is not an obligation relating to land but a personal obligation to pay part of the proceeds of sale, with land being incidental. Such an obligation prescribes in 5 years under the 1973 Act. The obligation only arises if and when the defender sells the land; until then, no enforceable obligation exists. The pursuer's craves are either prescribed or irrelevant and must be dismissed.

Court Disposition

Action dismissed; defender successful.

Orders

  • Repels the pursuer's 4th and 5th pleas-in-law.
  • Sustains the defender's 1st, 2nd, and 3rd pleas-in-law in respect of the pursuer's 2nd, 3rd, 4th, 5th, and 6th craves.