Bremner v. Dick and Another [1911] ScotLR 833 (02 June 1911)

Bremner v. Dick and Another [1911] ScotLR 833 (02 June 1911)

The pursuer was unable to implement his part of the contract because he could not convey the property with the feu-duty specified in the missives (£2, 5s.), but only with a share of a larger cumulo feu-duty. The contract required delivery of a subject with the specific burden stated, and performance with a different burden was not sufficient. Prior cases did not establish a general rule contrary to this construction.

Citation
[1911] ScotLR 833
Parties
Pursuer: John Bremner; Defender: Mrs Sophie Campbell Armour or Dick; Defender: Robert Orr Dick
Jurisdiction
Scotland
Judgment Date
02 June 1911
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Decision
Outcome
defenders assoilzied (absolved); appeal refused; interlocutor of Lord Ordinary adhered to
Legal Topics
Sale of Heritage, Misrepresentation, Feu Duty, Specific Implement, Breach of Contract
Property Law Contract Law Sale of Heritage Misrepresentation Feu Duty Specific Implement Breach of Contract

Case Brief

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Parties

John Bremner

Pursuer

Mrs Sophie Campbell Armour or Dick

Defender

Robert Orr Dick

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether the seller could implement the contract by conveying a property with a feu-duty different from that specified in the missives of sale
  2. 2 Whether the statement of feu-duty in the missives referred to the actual burden or only a rateable share of a cumulo feu-duty
  3. 3 Whether prior case law required a different construction of the contract terms

Ratio Decidendi

The pursuer was unable to implement his part of the contract because he could not convey the property with the feu-duty specified in the missives (£2, 5s.), but only with a share of a larger cumulo feu-duty. The contract required delivery of a subject with the specific burden stated, and performance with a different burden was not sufficient. Prior cases did not establish a general rule contrary to this construction.

Court Disposition

defenders assoilzied (absolved); appeal refused; interlocutor of Lord Ordinary adhered to

Orders

  • Defenders assoilzied from the conclusions of the summons
  • Pursuer's reclaiming motion refused