John C. M'Kellar, Ltd v. Young [1909] ScotLR 952 (15 July 1909)

John C. M'Kellar, Ltd v. Young [1909] ScotLR 952 (15 July 1909)

The purchaser is barred from claiming damages for breach of warrandice in respect of a shortfall in area where the articles of roup expressly required him to satisfy himself as to the extent and description of the subjects and precluded objections or claims on that ground; the disposition, though containing absolute warrandice, was granted in implement of and subject to the terms of the articles of roup, which remain binding.

Citation
[1909] ScotLR 952
Parties
Defender: John C. M'Kellar, Limited; Pursuer: John Craig Young
Jurisdiction
Scotland
Judgment Date
15 July 1909
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
action dismissed
Legal Topics
Sale of Heritage, Bounding Title, Warrandice, Damages, Interpretation of Contract, Articles of Roup
Property Law Contract Law Sale of Heritage Bounding Title Warrandice Damages Interpretation of Contract Articles of Roup

Case Brief

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Parties

John C. M'Kellar, Limited

Defender

John Craig Young

Pursuer

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the purchaser is entitled to damages for breach of warrandice where the area conveyed is less than specified in the disposition due to the seller not being in title to part of the land.
  2. 2 Whether the purchaser is barred from claiming such damages by the terms of the articles of roup.

Ratio Decidendi

The purchaser is barred from claiming damages for breach of warrandice in respect of a shortfall in area where the articles of roup expressly required him to satisfy himself as to the extent and description of the subjects and precluded objections or claims on that ground; the disposition, though containing absolute warrandice, was granted in implement of and subject to the terms of the articles of roup, which remain binding.

Court Disposition

action dismissed

Orders

  • Interlocutor of the Lord Ordinary recalled
  • First plea-in-law for the defenders sustained