Derek McEwan against James Shankland (Sheriff Court Civil) [2025] SCFOR 67 (31 May 2025)

Derek McEwan against James Shankland (Sheriff Court Civil) [2025] SCFOR 67 (31 May 2025)

The action was dismissed because Derek McEwan contracted as an individual, not as executor, and did not make his representative capacity known to the defender. Therefore, no contract existed between the estate and the defender, and the pursuer had no right to sue in his capacity as executor.

Citation
[2025] SCFOR 67
Parties
Pursuer: Derek McEwan, as executor of the late Elizabeth Hossack Bennett; Defender: James Shankland
Jurisdiction
Scotland
Judgment Date
31 May 2025
Procedural Posture
Civil / Judgment After Proof Restricted to Issue of Contracting Parties
Outcome
action dismissed
Legal Topics
Capacity to Contract, Identification of Contracting Parties, Executor's Authority
Contract Law Succession Law Capacity to Contract Identification of Contracting Parties Executor's Authority

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Parties

Derek McEwan, as executor of the late Elizabeth Hossack Bennett

Pursuer

James Shankland

Defender

Procedural Posture

Civil / Judgment After Proof Restricted to Issue of Contracting Parties

Legal Issues

  1. 1 Whether Derek McEwan contracted as executor or as an individual
  2. 2 Whether a valid contract existed between the estate and the defender

Ratio Decidendi

The action was dismissed because Derek McEwan contracted as an individual, not as executor, and did not make his representative capacity known to the defender. Therefore, no contract existed between the estate and the defender, and the pursuer had no right to sue in his capacity as executor.

Court Disposition

action dismissed

Orders

  • action dismissed
  • expenses reserved for later determination