Thomson v. Jardine [2004] ScotCS 71 (19 March 2004)

Thomson v. Jardine [2004] ScotCS 71 (19 March 2004)

The sheriff erred in law by holding that a loan repayable 'when able to do so' is inherently vague, uncertain, and unenforceable; Scottish authority recognises such a condition can be legally effective if established. The reponing note disclosed a stateable defence, and the sheriff's refusal was based on a misdirection in law. The sheriff principal failed to recognise this error. The appeal is allowed, the previous orders are recalled, and the case is remitted for further proceedings.

Citation
[2004] ScotCS 71
Parties
Pursuer and Respondent: John Edward Thompson; Defender and Appellant: John Jardine
Jurisdiction
Scotland
Judgment Date
19 March 2004
Procedural Posture
Appeal / Appeal From Sheriff Principal to Inner House, Court of Session
Outcome
appeal allowed
Legal Topics
Reponing Note, Loan Repayment Terms, Discretion of Sheriff, Stateable Defence, Enforceability of Conditional Repayment
Civil Procedure Contract Law Reponing Note Loan Repayment Terms Discretion of Sheriff Stateable Defence Enforceability of Conditional Repayment

Case Brief

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Parties

John Edward Thompson

Pursuer and Respondent

John Jardine

Defender and Appellant

Procedural Posture

Appeal / Appeal From Sheriff Principal to Inner House, Court of Session

Legal Issues

  1. 1 Whether a loan repayable 'when able to do so' is a legally enforceable condition
  2. 2 Whether the sheriff erred in law in refusing the reponing note on grounds of vagueness and unenforceability of the defence
  3. 3 Whether the sheriff's exercise of discretion was flawed by legal error

Ratio Decidendi

The sheriff erred in law by holding that a loan repayable 'when able to do so' is inherently vague, uncertain, and unenforceable; Scottish authority recognises such a condition can be legally effective if established. The reponing note disclosed a stateable defence, and the sheriff's refusal was based on a misdirection in law. The sheriff principal failed to recognise this error. The appeal is allowed, the previous orders are recalled, and the case is remitted for further proceedings.

Court Disposition

appeal allowed

Orders

  • Recall the interlocutors of the sheriff dated 10 October 2002 and of the Sheriff Principal dated 31 January 2003
  • Recall the decree of 18 September 2002