Swilken Ltd v Applecraft Ltd [2000] ScotCS 314 (8 December 2000)

Swilken Ltd v Applecraft Ltd [2000] ScotCS 314 (8 December 2000)

Clause 12.1 of the Franchise Agreement is enforceable because, although it does not expressly specify the date of valuation, the proper construction is that the valuation is to be as at the date of acquisition chosen by the defenders. The clause is sufficiently certain and does not require further agreement between the parties on essential terms. The defenders' averments based on the call option are therefore relevant and should not be excluded from probation.

Citation
[2000] ScotCS 314
Parties
Pursuer: Swilken Limited; Defender: Applecraft Limited
Jurisdiction
Scotland
Judgment Date
08 December 2000
Procedural Posture
Commercial Action for Damages (contract) / Interlocutory Judgment on Relevancy of Averments; Debate on Exclusion From Probation
Outcome
Pursuers' fourth plea-in-law repelled; proof before answer allowed.
Legal Topics
Repudiation of Contract, Enforceability of Option Clauses, Certainty in Contract Terms, Damages for Breach of Contract
Contract Law Commercial Law Repudiation of Contract Enforceability of Option Clauses Certainty in Contract Terms Damages for Breach of Contract

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Parties

Swilken Limited

Pursuer

Applecraft Limited

Defender

Procedural Posture

Commercial Action for Damages (contract) / Interlocutory Judgment on Relevancy of Averments; Debate on Exclusion From Probation

Legal Issues

  1. 1 Whether Clause 12.1 of the draft Franchise Agreement (call option) is unenforceable for uncertainty and thus irrelevant to the assessment of damages.
  2. 2 Whether the defenders' averments regarding the call option should be excluded from probation.

Ratio Decidendi

Clause 12.1 of the Franchise Agreement is enforceable because, although it does not expressly specify the date of valuation, the proper construction is that the valuation is to be as at the date of acquisition chosen by the defenders. The clause is sufficiently certain and does not require further agreement between the parties on essential terms. The defenders' averments based on the call option are therefore relevant and should not be excluded from probation.

Court Disposition

Pursuers' fourth plea-in-law repelled; proof before answer allowed.

Orders

  • Allow proof before answer of parties' respective averments, including the disputed passage in Answer 6.
  • Case to be put out By Order to fix a diet of proof and determine further preparatory procedure.