Thompson v Jardine [2004] ScotCS 180 (19 March 2004)

Thompson v Jardine [2004] ScotCS 180 (19 March 2004)

The sheriff erred in law by holding that an agreement to repay a loan 'when able to do so' was inherently vague and unenforceable. Authority supports the legal validity of such a condition if established as fact. The reponing note disclosed a stateable defence, and the sheriff's exercise of discretion was flawed by this error of law. The decree in absence and subsequent interlocutors must be recalled, and the case remitted to the sheriff for further procedure.

Citation
[2004] ScotCS 180
Parties
Pursuer and Respondent: John Edward Thompson; Defender and Appellant: John Jardine
Jurisdiction
Scotland
Judgment Date
19 March 2004
Procedural Posture
Appeal (civil) / Appeal From Sheriff Principal to Inner House, Court of Session
Outcome
Appeal allowed; interlocutors of Sheriff Principal and sheriff recalled; decree in absence recalled; case remitted to sheriff for further procedure.
Legal Topics
Loan Repayment, Reponing Note, Discretion of the Court, Enforceability of Contractual Terms, Vagueness in Contract, Recall of Decree in Absence
Contract Law Civil Procedure Loan Repayment Reponing Note Discretion of the Court Enforceability of Contractual Terms Vagueness in Contract Recall of Decree in Absence

Case Brief

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Parties

John Edward Thompson

Pursuer and Respondent

John Jardine

Defender and Appellant

Procedural Posture

Appeal (civil) / Appeal From Sheriff Principal to Inner House, Court of Session

Legal Issues

  1. 1 Whether a loan agreement to repay 'when able to do so' is legally enforceable or too vague to constitute a defence
  2. 2 Whether the sheriff erred in law in refusing to grant the reponing note on the basis that the proposed defence was vague and unenforceable
  3. 3 Whether the sheriff's exercise of discretion was flawed by an error of law

Ratio Decidendi

The sheriff erred in law by holding that an agreement to repay a loan 'when able to do so' was inherently vague and unenforceable. Authority supports the legal validity of such a condition if established as fact. The reponing note disclosed a stateable defence, and the sheriff's exercise of discretion was flawed by this error of law. The decree in absence and subsequent interlocutors must be recalled, and the case remitted to the sheriff for further procedure.

Court Disposition

Appeal allowed; interlocutors of Sheriff Principal and sheriff recalled; decree in absence recalled; case remitted to sheriff for further procedure.

Orders

  • Recall interlocutors of 10 October 2002 and 31 January 2003
  • Recall decree of 18 September 2002