Fullarton v. Smith & Anor [2011] ScotSC 39 (25 July 2011)

Fullarton v. Smith & Anor [2011] ScotSC 39 (25 July 2011)

The court held that there was no agreement to vary the date of entry in the missives; the original date of entry remained, and the pursuer's action was time barred as it was raised more than two years after the original date of entry. Even if the date had been varied, the defenders were not in breach as payment was made on the revised date.

Citation
[2011] ScotSC 39
Parties
Pursuer: William Stuart Fullarton; Defender: Frank Anson Smith; Defender: Margaret Smith
Jurisdiction
Scotland
Judgment Date
25 July 2011
Procedural Posture
Civil / Judgment After Debate
Outcome
action dismissed; defenders assoilzied
Legal Topics
Missives, Variation of Contract, Time Bar, Breach of Contract, Requirements of Writing
Contract Law Property Law Missives Variation of Contract Time Bar Breach of Contract Requirements of Writing

Case Brief

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Parties

William Stuart Fullarton

Pursuer

Frank Anson Smith

Defender

Margaret Smith

Defender

Procedural Posture

Civil / Judgment After Debate

Legal Issues

  1. 1 Was the date of entry under the missives contract varied by agreement?
  2. 2 Is the pursuer's claim for damages time barred under the contract?
  3. 3 Did the defenders breach the contract by failing to pay on the date of entry?

Ratio Decidendi

The court held that there was no agreement to vary the date of entry in the missives; the original date of entry remained, and the pursuer's action was time barred as it was raised more than two years after the original date of entry. Even if the date had been varied, the defenders were not in breach as payment was made on the revised date.

Court Disposition

action dismissed; defenders assoilzied

Orders

  • Defenders assoilzied from the crave
  • Hearing on expenses assigned for 1 August 2011 at 9.30 am