Fullarton v. Smith & Anor [2011] ScotSC 35 (25 July 2011)

Fullarton v. Smith & Anor [2011] ScotSC 35 (25 July 2011)

There was no agreement to vary the date of entry in the missives; the original date of entry remained. The pursuer's action was raised after the two-year period and is therefore time barred. Even if the date of entry was varied, the defenders paid on the revised date, so no breach occurred.

Citation
[2011] ScotSC 35
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
defenders assoilzied (absolvitor)
Legal Topics
Missives, Variation of Contract, Time Bar, Date of Entry, Damages for Breach
Contract Law Property Law Missives Variation of Contract Time Bar Date of Entry Damages for Breach

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 late payment?

Ratio Decidendi

There was no agreement to vary the date of entry in the missives; the original date of entry remained. The pursuer's action was raised after the two-year period and is therefore time barred. Even if the date of entry was varied, the defenders paid on the revised date, so no breach occurred.

Court Disposition

defenders assoilzied (absolvitor)

Orders

  • pleas in law 1 and 2 for defenders sustained
  • pleas in law 1 and 2 for pursuer repelled