McMillan v Caldwell [1990] ScotCS CSOH_3 (15 August 1990)

McMillan v Caldwell [1990] ScotCS CSOH_3 (15 August 1990)

The withdrawal of a written offer relating to the sale of heritage does not require to be in probative writing; it is sufficient if the withdrawal is communicated to the other party's agent before acceptance. In this case, the defenders' solicitor verbally withdrew the qualified acceptance before the pursuer's solicitor attempted to accept it, so no binding contract was concluded.

Citation
[1990] ScotCS CSOH_3
Parties
Pursuer: Roderick John McMillan; Defenders: Iain Clayton Caldwell and Gabrielle Phyllis Caldwell
Jurisdiction
Scotland
Judgment Date
15 August 1990
Procedural Posture
Civil / First Instance
Outcome
decree of absolvitor for defenders; missives reduced ope exceptionis
Legal Topics
Formation of Contract, Withdrawal of Offer, Sale of Heritage, Missives, Consensus in Idem, Personal Bar
Property Law Contract Law Formation of Contract Withdrawal of Offer Sale of Heritage Missives Consensus in Idem Personal Bar

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Parties

Roderick John McMillan

Pursuer

Iain Clayton Caldwell and Gabrielle Phyllis Caldwell

Defenders

Procedural Posture

Civil / First Instance

Legal Issues

  1. 1 Whether a formal written offer relating to the sale of heritage can be effectively withdrawn orally before acceptance
  2. 2 Whether a binding contract was concluded between the parties for the sale of Ayton House

Ratio Decidendi

The withdrawal of a written offer relating to the sale of heritage does not require to be in probative writing; it is sufficient if the withdrawal is communicated to the other party's agent before acceptance. In this case, the defenders' solicitor verbally withdrew the qualified acceptance before the pursuer's solicitor attempted to accept it, so no binding contract was concluded.

Court Disposition

decree of absolvitor for defenders; missives reduced ope exceptionis

Orders

  • Missives reduced ope exceptionis
  • Decree of absolvitor pronounced in favour of defenders