Rodger v. Paton & Ors [2004] ScotCS 135 (08 June 2004)

Rodger v. Paton & Ors [2004] ScotCS 135 (08 June 2004)

The pursuer's pleadings are sufficient to allow a proof before answer on whether the contract is enforceable by homologation or rei interventus, and whether the second and third defenders acted in mala fide. The description of the subjects and absence of a specified date of entry do not render the contract void at this stage. The pursuer is entitled to lead evidence on identification of the subjects, homologation, rei interventus, and mala fides.

Citation
[2004] ScotCS 135
Parties
Pursuer: Clementina Bonita Rodger; First Defender: Robert Paton; Second Defender: Brian Docherty; Third Defender: Mrs Edith Docherty
Jurisdiction
Scotland
Judgment Date
08 June 2004
Procedural Posture
Civil Property/contract / Procedure Roll Hearing on Relevancy and Specification, Interlocutor on Proof Before Answer
Outcome
Proof before answer allowed; action not dismissed; expenses reserved.
Legal Topics
Sale of Heritable Property, Requirements of Writing, Homologation, Rei Interventus, Specific Implement, Reduction of Disposition, Damages, Mala Fides, Personal Bar
Property Law Contract Law Civil Procedure Sale of Heritable Property Requirements of Writing Homologation Rei Interventus Specific Implement +4 more

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Parties

Clementina Bonita Rodger

Pursuer

Robert Paton

First Defender

Brian Docherty

Second Defender

Mrs Edith Docherty

Third Defender

Procedural Posture

Civil Property/contract / Procedure Roll Hearing on Relevancy and Specification, Interlocutor on Proof Before Answer

Legal Issues

  1. 1 Whether the alleged contract for sale of heritable property is void for uncertainty of subject and lack of date of entry
  2. 2 Whether informal contract is enforceable by homologation or rei interventus
  3. 3 Whether mala fides can be established against singular successors (second and third defenders)

Ratio Decidendi

The pursuer's pleadings are sufficient to allow a proof before answer on whether the contract is enforceable by homologation or rei interventus, and whether the second and third defenders acted in mala fide. The description of the subjects and absence of a specified date of entry do not render the contract void at this stage. The pursuer is entitled to lead evidence on identification of the subjects, homologation, rei interventus, and mala fides.

Court Disposition

Proof before answer allowed; action not dismissed; expenses reserved.

Orders

  • Proof before answer allowed on all issues between pursuer and defenders.
  • Question of expenses reserved.