Promontoria (RAM) Ltd v Moore [2017] ScotCS CSOH_88 (21 June 2017)
On a sound construction of the guarantee as a whole, including clauses 2 and 7, assignation is not prohibited, and no delectus personae arises; intimation to the cautioner is not required for constitutive purposes, and any defect is cured by judicial intimation; pursuers have title to sue.
- Citation
- [2017] ScotCS CSOH_88
- Parties
- Pursuer: Promontoria (RAM) Limited; Defender: John Moore
- Jurisdiction
- Scotland
- Judgment Date
- 21 June 2017
- Procedural Posture
- Commercial Action / Debate on Relevancy and Title to Sue
- Outcome
- Defender's pleas in law repelled; proof before answer allowed; expenses reserved.
- Legal Topics
- Assignation of Guarantees, Delectus Personae, Intimation of Assignation, Title to Sue
Case Brief
Summary, issues, holding and outcome
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Parties
Promontoria (RAM) Limited
Pursuer
John Moore
Defender
Procedural Posture
Commercial Action / Debate on Relevancy and Title to Sue
Legal Issues
- 1 Is the guarantee assignable to the pursuers?
- 2 Was proper intimation of assignation made to the defender?
- 3 Does the pursuer have title to sue under the assigned guarantee?
Ratio Decidendi
On a sound construction of the guarantee as a whole, including clauses 2 and 7, assignation is not prohibited, and no delectus personae arises; intimation to the cautioner is not required for constitutive purposes, and any defect is cured by judicial intimation; pursuers have title to sue.
Court Disposition
Defender's pleas in law repelled; proof before answer allowed; expenses reserved.
Orders
- Proof before answer allowed
- Defender's first to third pleas in law repelled
Full Case Text
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