Barratt Scotland Ltd v Keith [1992] ScotCS CSIH_5 (10 December 1992)

Barratt Scotland Ltd v Keith [1992] ScotCS CSIH_5 (10 December 1992)

The obligation to deliver a disposition under missives of sale is an obligation relating to land within the meaning of para. 2(e) of Schedule 1 to the Prescription and Limitation (Scotland) Act 1973, and is therefore subject to the 20-year prescription period, not the 5-year period. The Lord Ordinary was correct to repel the defender's plea of prescription and to allow proof before answer on the pursuers' averments of loss.

Citation
[1992] ScotCS CSIH_5
Parties
Pursuer: Barratt Scotland Ltd; Defender: Keith
Jurisdiction
Scotland
Judgment Date
10 December 1992
Procedural Posture
Civil / Appeal (reclaiming Motion) From Interlocutor Allowing Proof Before Answer
Outcome
Reclaiming motion refused; interlocutor of Lord Ordinary adhered to.
Legal Topics
Prescription, Obligations Relating to Land, Missives of Sale, Personal Vs Real Rights, Statutory Interpretation
Property Law Contract Law Scots Law Prescription Obligations Relating to Land Missives of Sale Personal Vs Real Rights Statutory Interpretation

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Parties

Barratt Scotland Ltd

Pursuer

Keith

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Interlocutor Allowing Proof Before Answer

Legal Issues

  1. 1 Whether the obligation to deliver a disposition under missives of sale is an 'obligation relating to land' under para. 2(e) of Schedule 1 to the Prescription and Limitation (Scotland) Act 1973, thus subject to 20-year prescription rather than 5 years.
  2. 2 Whether the averments of loss in the pursuer's pleadings were sufficiently relevant and specific to go to proof before answer.

Ratio Decidendi

The obligation to deliver a disposition under missives of sale is an obligation relating to land within the meaning of para. 2(e) of Schedule 1 to the Prescription and Limitation (Scotland) Act 1973, and is therefore subject to the 20-year prescription period, not the 5-year period. The Lord Ordinary was correct to repel the defender's plea of prescription and to allow proof before answer on the pursuers' averments of loss.

Court Disposition

Reclaiming motion refused; interlocutor of Lord Ordinary adhered to.

Orders

  • Repel defender's third plea-in-law (prescription)
  • Repel defender's first plea-in-law (personal bar)