Khosprowpour (AP) v McKay [2014] ScotCS CSOH_175 (16 December 2014)

Khosprowpour (AP) v McKay [2014] ScotCS CSOH_175 (16 December 2014)

The agreement founded upon by the pursuer is properly classified as a contract relating to heritage, which requires to be constituted by probative writing. However, the pursuer has averred sufficient facts potentially constituting rei interventus to allow a proof before answer. The impact of the Standard Security and the sufficiency of the pursuer's averments are matters for proof, not for dismissal at this stage.

Citation
[2014] ScotCS CSOH_175
Parties
Pursuer: Hamid Khosprowpour (A.P.); Defender: Andrew Joseph MacKay
Jurisdiction
Scotland
Judgment Date
16 December 2014
Procedural Posture
Civil / Procedure Roll Debate on Relevancy and Specification of Pleadings
Outcome
Defender's first and second pleas repelled; proof before answer allowed.
Legal Topics
Requirements of Writing for Contracts Relating to Heritage, Innominate Contracts, Obligation to Test, Rei Interventus, Proof Requirements for Verbal Agreements, Standard Security
Contract Law Succession Law Property Law Requirements of Writing for Contracts Relating to Heritage Innominate Contracts Obligation to Test Rei Interventus Proof Requirements for Verbal Agreements +1 more

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Parties

Hamid Khosprowpour (A.P.)

Pursuer

Andrew Joseph MacKay

Defender

Procedural Posture

Civil / Procedure Roll Debate on Relevancy and Specification of Pleadings

Legal Issues

  1. 1 Whether the alleged agreement is a contract relating to heritage requiring constitution in writing
  2. 2 Whether the agreement can be classified as an innominate contract provable by writ or oath
  3. 3 Whether rei interventus applies to bar the defender from relying on lack of writing

Ratio Decidendi

The agreement founded upon by the pursuer is properly classified as a contract relating to heritage, which requires to be constituted by probative writing. However, the pursuer has averred sufficient facts potentially constituting rei interventus to allow a proof before answer. The impact of the Standard Security and the sufficiency of the pursuer's averments are matters for proof, not for dismissal at this stage.

Court Disposition

Defender's first and second pleas repelled; proof before answer allowed.

Orders

  • Allow proof of the pursuer's averments on record.
  • Reserve the question of expenses.