MAURICE MACNEILL IONA LIMITED v. BRIAN McLEAN AND ANNIE KANE [2011] ScotSC 85 (19 April 2011)

MAURICE MACNEILL IONA LIMITED v. BRIAN McLEAN AND ANNIE KANE [2011] ScotSC 85 (19 April 2011)

The defenders' averments regarding implied terms and certain express terms are irrelevant due to inadequate pleading and lack of contractual basis. The guarantee is rectified as conceded. The averments regarding the sales and management training obligation and quantum are relevant and admitted to probation.

Citation
[2011] ScotSC 85
Parties
Pursuer: Maurice MacNeill Iona Limited; Defender: Brian McLean; Defender: Annie Kane
Jurisdiction
Scotland
Judgment Date
19 April 2011
Procedural Posture
Commercial Contract Dispute / Interlocutory Judgment Following Debate
Outcome
Partial exclusion of averments from probation; rectification of guarantee granted; proof allowed on remaining averments; expenses reserved.
Legal Topics
Franchise Agreements, Personal Guarantees, Rectification, Implied Terms, Breach of Contract
Contract Law Commercial Law Franchise Agreements Personal Guarantees Rectification Implied Terms Breach of Contract

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Parties

Maurice MacNeill Iona Limited

Pursuer

Brian McLean

Defender

Annie Kane

Defender

Procedural Posture

Commercial Contract Dispute / Interlocutory Judgment Following Debate

Legal Issues

  1. 1 Whether certain averments regarding breaches of express and implied terms are relevant and should be admitted to probation
  2. 2 Whether the personal guarantee should be rectified under section 8(1)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
  3. 3 Whether the pursuers owed continuing obligations under the franchise agreement

Ratio Decidendi

The defenders' averments regarding implied terms and certain express terms are irrelevant due to inadequate pleading and lack of contractual basis. The guarantee is rectified as conceded. The averments regarding the sales and management training obligation and quantum are relevant and admitted to probation.

Court Disposition

Partial exclusion of averments from probation; rectification of guarantee granted; proof allowed on remaining averments; expenses reserved.

Orders

  • Exclusion from probation of specified averments of the defenders
  • Rectification of the personal guarantee to substitute 'Maurice MacNeill Iona Limited' as beneficiary