Sloans Dairies v Glasgow Corp [1977] ScotCS CSIH_2 (24 March 1977)

Sloans Dairies v Glasgow Corp [1977] ScotCS CSIH_2 (24 March 1977)

The risk of accidental damage to heritable property passes to the purchaser upon conclusion of a perfected contract of sale, regardless of whether a date of entry has been fixed. The buyer acquires a jus ad rem specificam at that point, and the absence of a fixed date of entry does not constitute a suspensive condition preventing the passing of risk. Responsibility for upkeep remains with the seller until entry but does not affect the legal incidence of risk.

Citation
[1977] ScotCS CSIH_2
Parties
Pursuer: Sloans Dairies Limited; Defender: Glasgow Corporation
Jurisdiction
Scotland
Judgment Date
24 March 1977
Procedural Posture
Civil / Appeal (reclaiming Motion)
Outcome
reclaiming motion refused; interlocutor of Lord Ordinary adhered to; proof before answer allowed on limited point
Legal Topics
Passing of Risk, Sale of Heritable Property, Contract Formation, Date of Entry, Damage to Property
Property Law Contract Law Passing of Risk Sale of Heritable Property Contract Formation Date of Entry Damage to Property

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Parties

Sloans Dairies Limited

Pursuer

Glasgow Corporation

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion)

Legal Issues

  1. 1 When does the risk of accidental damage pass from seller to buyer in a contract for the sale of heritable property?
  2. 2 Is a date of entry an essential term for a concluded contract of sale of heritage?
  3. 3 Does the absence of a fixed date of entry affect the passing of risk?

Ratio Decidendi

The risk of accidental damage to heritable property passes to the purchaser upon conclusion of a perfected contract of sale, regardless of whether a date of entry has been fixed. The buyer acquires a jus ad rem specificam at that point, and the absence of a fixed date of entry does not constitute a suspensive condition preventing the passing of risk. Responsibility for upkeep remains with the seller until entry but does not affect the legal incidence of risk.

Court Disposition

reclaiming motion refused; interlocutor of Lord Ordinary adhered to; proof before answer allowed on limited point

Orders

  • Defenders' first and third pleas-in-law repelled
  • Proof before answer allowed on pursuers' averment regarding willingness to give possession