Macdougall v. Bremner [1907] ScotLR 804 (26 June 1907)

Macdougall v. Bremner [1907] ScotLR 804 (26 June 1907)

The contract for a secret commission between the clerk of works and the measurer was contrary to public policy (pactum illicitum) and therefore unenforceable at law, regardless of whether the plea was specifically raised; the court will not lend its process to enforce such a contract.

Citation
[1907] ScotLR 804
Parties
Pursuer (appellant): William Brown Macdougall (assignee of Robert Macdougall); Defender (respondent): John Bremner
Jurisdiction
Scotland
Judgment Date
26 June 1907
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House, First Division
Outcome
appeal dismissed
Legal Topics
Pactum Illicitum, Secret Commission, Illegality of Contract, Proof by Parole, Agency Law
Contract Law Public Policy Pactum Illicitum Secret Commission Illegality of Contract Proof by Parole Agency Law

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Parties

William Brown Macdougall (assignee of Robert Macdougall)

Pursuer (appellant)

John Bremner

Defender (respondent)

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House, First Division

Legal Issues

  1. 1 Whether a contract for a secret commission between a clerk of works and a measurer is enforceable at law
  2. 2 Whether such a contract is contrary to public policy (pactum illicitum)
  3. 3 Whether the contract can be proved by parole evidence

Ratio Decidendi

The contract for a secret commission between the clerk of works and the measurer was contrary to public policy (pactum illicitum) and therefore unenforceable at law, regardless of whether the plea was specifically raised; the court will not lend its process to enforce such a contract.

Court Disposition

appeal dismissed

Orders

  • action dismissed as irrelevant
  • no expenses due to or by either party