Tucker Or Evans v Angus Healthcare (Glenesk) Ltd [2001] ScotCS 6 (12 January 2001)

Tucker Or Evans v Angus Healthcare (Glenesk) Ltd [2001] ScotCS 6 (12 January 2001)

The pursuer's averments are sufficient to support a case that the defenders conditionally waived their right to insist on strict compliance with the obligation to deliver a deed of servitude, provided a suitable a non domino disposition and title indemnity policy were furnished. The question of whether such waiver occurred is a matter of fact requiring proof. The contract does not preclude implied waiver in this context, and the pleadings are relevant for proof before answer.

Citation
[2001] ScotCS 6
Parties
Pursuer: Mrs Gillian Tucker or Evans; Defenders: Argus Healthcare (Glenesk) Limited
Jurisdiction
Scotland
Judgment Date
12 January 2001
Procedural Posture
Civil (contractual Dispute) / Debate on Relevancy of Pleadings; Interlocutory Decision Allowing Proof Before Answer
Outcome
Proof before answer allowed; pursuer's third plea-in-law repelled; case put out By Order for further procedure.
Legal Topics
Waiver of Contractual Rights, Specific Implement, Servitude Rights, Title Indemnity Insurance, Variation and Waiver in Missives, Conditional Waiver
Contract Law Property Law Waiver of Contractual Rights Specific Implement Servitude Rights Title Indemnity Insurance Variation and Waiver in Missives Conditional Waiver

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Mrs Gillian Tucker or Evans

Pursuer

Argus Healthcare (Glenesk) Limited

Defenders

Procedural Posture

Civil (contractual Dispute) / Debate on Relevancy of Pleadings; Interlocutory Decision Allowing Proof Before Answer

Legal Issues

  1. 1 Whether the defenders waived their right to resile from the contract due to the pursuer's inability to deliver a deed of servitude as stipulated in the missives
  2. 2 Whether the pleadings support a relevant case of waiver (express or implied)
  3. 3 Whether conditional waiver is competent in Scots contract law

Ratio Decidendi

The pursuer's averments are sufficient to support a case that the defenders conditionally waived their right to insist on strict compliance with the obligation to deliver a deed of servitude, provided a suitable a non domino disposition and title indemnity policy were furnished. The question of whether such waiver occurred is a matter of fact requiring proof. The contract does not preclude implied waiver in this context, and the pleadings are relevant for proof before answer.

Court Disposition

Proof before answer allowed; pursuer's third plea-in-law repelled; case put out By Order for further procedure.

Orders

  • Repel pursuer's third plea-in-law.
  • Allow proof before answer, reserving both parties' preliminary pleas.