BURNSIDE AGAINST PROMONTORIA (CHESTNUT) LIMITED [2017] ScotCS CSOH_157 (28 December 2017)

BURNSIDE AGAINST PROMONTORIA (CHESTNUT) LIMITED [2017] ScotCS CSOH_157 (28 December 2017)

The obligation in clause 3 of the Agreement to arrange and facilitate the sale of the properties is subject to an implied term requiring performance within a reasonable time, which is not excluded by the entire agreement clause. The pursuer's averments are relevant and the cause proceeds to proof before answer.

Citation
[2017] ScotCS CSOH_157
Parties
Pursuer: William John Burnside; Defender: Promontoria (Chestnut) Limited
Jurisdiction
Scotland
Judgment Date
28 December 2017
Procedural Posture
Commercial Action / Debate on Relevancy, Interlocutory Judgment
Outcome
Defender's first and second pleas-in-law repelled; cause appointed to proof before answer.
Legal Topics
Implied Terms, Entire Agreement Clause, Mutuality of Obligations, Specific Implement, Material Breach
Contract Law Property Law Implied Terms Entire Agreement Clause Mutuality of Obligations Specific Implement Material Breach

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Parties

William John Burnside

Pursuer

Promontoria (Chestnut) Limited

Defender

Procedural Posture

Commercial Action / Debate on Relevancy, Interlocutory Judgment

Legal Issues

  1. 1 Whether an implied term requiring performance within a reasonable time forms part of the Agreement
  2. 2 Whether the entire agreement clause excludes the implied term
  3. 3 Whether the pursuer was entitled to withhold performance due to defender's breach

Ratio Decidendi

The obligation in clause 3 of the Agreement to arrange and facilitate the sale of the properties is subject to an implied term requiring performance within a reasonable time, which is not excluded by the entire agreement clause. The pursuer's averments are relevant and the cause proceeds to proof before answer.

Court Disposition

Defender's first and second pleas-in-law repelled; cause appointed to proof before answer.

Orders

  • Exclude from probation defender’s averments denying implied term
  • Repel first and second pleas-in-law for defender