Collie & Anor v Donald [1999] ScotCS 4 (8 January 1999)

Collie & Anor v Donald [1999] ScotCS 4 (8 January 1999)

The pursuers' averments, including incorporated documents, are sufficient to establish relevancy for title to sue; the obligation under Clause F) of the 1991 Heads of Agreement is not extinguished by failure to use the specified recovery mechanism or by the 1994 Contract of Co-partnery, which is collateral and silent on the earlier debt.

Citation
[1999] ScotCS 4
Parties
Pursuer: James & George Collie; Defender: Robert Donald
Jurisdiction
Scotland
Judgment Date
08 January 1999
Procedural Posture
Civil / Interlocutory (pleas in Law, Proof Before Answer Allowed)
Outcome
Pleas relating to title to sue, extinguishment of obligation, and method of recovery repelled; Proof before Answer allowed on whole averments.
Legal Topics
Firm Identity and Continuity, Partner Obligations, Debt Recovery, Interpretation of Partnership Agreements
Partnership Law Contract Law Firm Identity and Continuity Partner Obligations Debt Recovery Interpretation of Partnership Agreements

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Parties

James & George Collie

Pursuer

Robert Donald

Defender

Procedural Posture

Civil / Interlocutory (pleas in Law, Proof Before Answer Allowed)

Legal Issues

  1. 1 Whether the pursuers have relevantly averred title to sue for the debt allegedly owed by the defender under Clause F) of the 1991 Heads of Agreement
  2. 2 Whether the method of recovery specified in Clause F) is a material term extinguishing the obligation if not used
  3. 3 Whether the 1994 Contract of Co-partnery extinguished or modified the defender's obligation under the 1991 Heads of Agreement

Ratio Decidendi

The pursuers' averments, including incorporated documents, are sufficient to establish relevancy for title to sue; the obligation under Clause F) of the 1991 Heads of Agreement is not extinguished by failure to use the specified recovery mechanism or by the 1994 Contract of Co-partnery, which is collateral and silent on the earlier debt.

Court Disposition

Pleas relating to title to sue, extinguishment of obligation, and method of recovery repelled; Proof before Answer allowed on whole averments.

Orders

  • Proof before Answer allowed
  • Certain averments deleted from pleadings as agreed by parties