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Cite as: [1998] UR 22A

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ROYAL COURT

Samedi Division

Before: FC Hamon Esq., Deputy Bailiff

and Jurats C L Gruchy and J C Tibbo

4 February 1998

BetweenAnthony John SnellPlaintiff

AndMargaret Beadle née SilcockDefendant

Advocate J C Martin for the Plaintiff

Advocate R A Falle for the Defendant

JUDGMENT

THE DEPUTY BAILIFF: At Greve d’Azette, St. Clement there are two properties called "Abalone" and "Broadlands". "Abalone" was for many years a guest-house and it could take 23 visitors in the season so that there were often as many as six or seven hire cars coming to "Abalone" and there were two private cars in the garage of the property. The access to "Abalone" from the public road is a small private road running adjacent to the seawall to the south and then turning at right angles to join the main road. "Broadlands" is on the main road, but at the relevant time, it had no vehicular access from the main road. Both properties were in a fairly dilapidated state when they came into the ownership of the plaintiff by inheritance. The two properties are separated by a strip of land some 6½ ft. wide, and 158 ft. Long. This is a pedestrian right of way although it may not have been consistently used as such for quite some time. It is somewhat overgrown. That pedestrian right of way runs between "Abalone" and "Broadlands" until it joins that part of the private road which is at right angles to the main road. The Plaintiff told us that he had walked across the pathway to get to and from the two properties as often a dozen times a day.

The Plaintiff decided as had his late father before him, to develop the properties. Both were mortgaged and he was under financial pressure. The Island Development Committee did not want the wall on the road knocked down to give vehicular access to "Broadlands" but said that they would allow the development of the whole area provided that the plaintiff could negotiate with the owner of the fonds of the private roadway to give vehicular access. On 14 October 1992, the senior assistant planner wrote to the architect employed by the plaintiff and the final paragraph of his letter says this:-

"Finally, I am aware that the site is sub-divided by a right of way. It may be necessary that you submit evidence by way of legal deeds to substantiate this. It would be foolish to develop the site in conjunction if access across could not be achieved".

Mr Snell, apart from employing the architect, also used the services of Mr Harry Cole, who describes himself as a business consultant. Mr Snell employed the firm of Pickersgill & Le Cornu and he asked his lawyers to look into the question of the right of way. Apparently, they advised that they would be able to do something when stamped plans had been obtained. That may not have been sensible advice, but to cut a very long and complex story short, eventually stamped approved plans were obtained from the Planning Department and those plans are stamped 8th July 1993. There is a condition on the permit that issued that four parking spaces were to be provided on the "Broadlands" site. The actual wording of the consent is this:-

"That the buildings shall not be occupied until four parking spaces have been marked out in accordance with the approved plans. The spaces shall thereafter be kept available for parking and turning at all times".

On 26 January 1994, seven months after the consent issued, the only letter from Pickersgill & Le Cornu to Mrs Beadle is found in the discovered documents. It reads:-

"A difficulty has come to light in as much as the IDC refused Mr Snell permission to obtain access to Braodlands from the main road. In addition, the IDC have insisted that four car parking spaces be provided on the site of Broadlands. The result is that the only means by which the cars could possibly have access to Broadlands is over Abalone and the footpath which runs between the two properties which footpath is, of course, owned by your goodself.

Both Abalone and Broadlands enjoy a right of access over the footpath, however this is by means of foot only and, therefore, Broadlands enjoys no vehicular right of access over the footpath. This point, unfortunately, was not brought to the attention of either the developers or the Island Development Committee and, had it been the Committee may well have allowed access from Broadlands direct onto the main road.

Mr Snell faces judgment being taken against him this Friday in the capital sum of £45,000 plus interest. This action arises out of the repayment of one of the charges created by his late father in respect of which Mr Snell has been unable to pay interest. We have during the course of the past six months done our best to provide time for Mr Snell to arrange the finances etc. to develop Abalone and Broadlands and a financial backer has been found. For obvious reasons, the lender is not prepared to advance Mr Snell any money until the matter of access over the footpath can be resolved.

The purpose of this letter is to ask whether you would, as owner of the footpath be prepared to enter into an agreement with Mr. Snell and to pass a contract before the Royal Court extending the right of access to enable cars to pass from Abalone to Broadlands over your footpath.

I must apologise for the fact that such a request is being made so late in the day and that your response is requested as a matter of some urgency with the Court proceedings on Friday. I would, nevertheless, be grateful if you would kindly telephone me to let me know whether, in principle, you would be prepared to agree to extending the rights of access as advised above. On looking at the two properties, I do not believe that any other neighbouring owners’ enjoyment of the footpath would in any way be affected.

I look forward to hearing from you."

The statement about the lack of vehicular access not having been brought to the attention of the Committee is alarmingly inaccurate, but the letter caused no harm because Mrs Beadle in the witness box most emphatically denied ever having seen it. That is surprising as it is correctly addressed to her at her home in St. Brelade. As we have no reason to doubt anything said to us by Mrs Beadle who came across as a friendly, thoughtful and intelligent lady, there is nothing to be made of the non receipt of the letter.

What the letter shows is the urgency of the matter. There was a very real risk of foreclosure on the mortgage within days. Mr Cole decided to take matters into his own hands and he telephoned Mrs Beadle, said that he represented Mr Snell, and asked if she would come and look at the property without delay. She readily and helpfully agreed. She came to "Abalone" at 3 o’clock in the afternoon on 1st February arriving, as Mr Cole put it, "on the dot". Mrs Beadle recalled that the weather was bad. It was "a filthy day". She was shown the plan. She was asked for vehicular access across that part of the private roadway that lay between "Abalone" and "Broadlands". She viewed the strip of land. The whole matter was explained to her and Mr Cole and Mrs Beadle seemed to get on with another very well. In fact, apparently Mr Cole had stood for the States at the recent elections and failed and Mrs Beadle, then a Deputy, had also lost her seat in the same elections and so they had something in common. Mr Cole explained Mr. Snells financial problems to her. He explained that the wall on the main road was at that time sacrosanct and could not be breached, according to the Island Development Committee - (a view that has since changed, but too late to affect the present dispute). Mrs Beadle was well aware of the problems that Mr Snell faced. The meeting, according to Mr Snell, Mr Cole and Mrs Beadle, was perfectly cordial. Mrs Beadle was anxious to ensure that there was no parking on the pathway. She spoke to one of the neighbours. Eventually Mrs Beadle asked Mr Cole what he considered to be a proper consideration and he said that he would suggest £50 to £100, but that she was free to take advice if she wanted to. She said that a better figure would be £100. "Let’s be realistic", she said. She said that she would have to speak to her lawyers as she always did. Nobody demurred. Mr Cole said that she said she would come back to him tomorrow and she left after a perfectly amicable meeting. Mr Cole said if he had not heard from her, he would have left it two or three days, but he was asked for and gave her his card and telephone number and when she left, she said "I see no problems in this". The half hour meeting was perfectly pleasant and cordial. According to Mr Cole, Mrs Beadle contacted him without any prompting at about 10.30 the following morning and she said "Mr. Cole, I am agreeing to what your client requires - £100 and my legal fees. There is then a dispute as to who suggested a document be drawn up. It may well be that each party wished for something in writing. There was some mention made at the time that Mrs Beadle would consult (or had consulted) her son.

At this point, Mr Cole put everything aside to prepare the agreement. She came along to his office some time after mid-day. He offered her a coffee but she declined. He said that the agreement was almost ready. She said he had to type for some twenty minutes while she waited. In any event, there was a delay. She read a magazine until the agreement was ready. She read the agreement through. She was in his office reading it for perhaps 5 to 6 minutes and she said - "Mr. Cole, this appears to be what is agreed." She asked him for a pen, signed the document and he witnessed it. She told Mr Cole to contact her lawyer so that he would have knowledge of it and then he would "go from there". From that we understood her to mean they would go to contract. She admitted that Mr Cole had done no more and no less than she had asked him to do. What she said to us was that she knew that Mr Snell was in terrible financial trouble and "was prepared to go along and help the poor man".

Let it be said at once that Mrs Beadle appeared to us to be a lady of great charm and sincerity. Not only did she tell us that she was happy with the agreement at the time, but she stated quite unequivocally to us that at the time that she signed and even now, she was content with the implication that she was to have given a right to the four "Broadlands" cars to have access and egress to and from the main road along her private roadway. Nor did she have any doubt that when the agreement was signed, it would be sent to the lawyers to finalize it by way of contract. There was an agreement between them. The reamended answer of the defendant speaks of Mr Cole conducting himself "in a forceful and pressing manner". That has not come up to proof. It is pleaded that the defendant regarded the proceedings on the 1 and 2 February 1994 as nothing more than a "preliminary discussion subject to legal and other advice." That has not come up to proof. There is an allegation that "Mr. Snell and Mr. Cole throughout urgently pressed the defendant to sign a form of written agreement". That has not come up to proof.

We have not the slightest doubt that had matters proceeded normally, contract would have passed on the Friday. Mrs Beadle would have received her £100 and her legal fees, Mr Snell would have appeased his mortgage creditor and the development would have proceeded apace.

It was not to be Messrs. Pickersgill & Le Cornu sent a "brouillon" to Messrs. Bois & Bois under cover of a letter dated 3 February 1994. The draft contract was inadequate for many reasons, but in particular, it makes no mention of the £100 consideration. It merely mentions the legal fees. The covering letter does mention the £100 and it enclosed the agreement.

The agreement says this:-

"THIS AGREEMENT made and entered into by and between ANTHONY JOHN SNELL (hereinafter referred to "Mr Snell" which expression shall, where the context so admits include his heirs, executors, administrators or assigns) of ABALONE, Greve D’Azette, in the parish of St. Clement, Jersey, Channel Islands of the one part:

AND

MARGARET BEADLE (née Silcock) (hereinafter referred to as "The Landowner"] of Le Portelet, Portelet Bay, St. Brelade, Jersey, of the other part:

WHEREAS

A.Mr Snell is the Owner and Freeholder of properties known as ABALONE and BROADLANDS both situated within close proximity of each other (marked in RED on site plan attached hereto)

B.Mr Snell wishes to demolish ‘Broadlands’ and erect a pair of 2 bedroomed dwellings thereon with planning approval obtained from the IDC conditional upon there being ‘four’ vehicle parking spaces provided for the proposed new dwellings.

C.Mr Snell requires approval of ‘The Landowner’ to permit access over her strip of land, for the purpose of gaining vehicular access onto land hereinbefore described as BROADLANDS

NOW THIS AGREEMENT WITNESSETH

1.IN CONSIDERATION of the Landowner granting permission, Mr Snell agree to pay a sum of ‘one hundred pounds’ (£100) to the landowner, plus pay all her legal costs in the preparation and registration of this agreement by the Royal Court of Jersey. Such sum as mentioned herein, together with legal fees (when known) shall be paid over to the landowner, by Mr Snell or his legal representative upon demand.

3.Mr Snell undertakes not to obstruct the access, by parking any vehicles thereon, and will not knowingly permit any other vehicles to block this right of way.

This Present Agreement: shall be interpreted in accordance with the Laws of the Island of Jersey.

IN WITNESS Whereof both parties hereto have signed this Agreement This SECOND day of February, in the year One Thousand Nine Hundred and Ninety Four in the presence of the undersigned Witness.

SIGNED:MARGARET BEADLE

(The Landowner)

SIGNED: ANTHONY JOHN SNELL

WITNESSED BY:

HARRY ROYSTONE COLE

Business Consultant

2 February 1994"

The Court, the plaintiff and the defendant are in perfect unanimity of thought that that is what the parties intended to happen.

The bombshell that blew all this apart is set out in a letter dated 4 February 1994 from Bois & Bois to Pickersgill & Le Cornu:-

"We acknowledge receipt of your letter of 3rd February 1994 and enclosures which frankly we were astonished to read.

We do not know who Mr Cole is. We assume he is the representative of your client but of what qualification, colour or description is uncertain. It is clear however, that he purported to bind our client to give her consent for a derisory consideration to the transfer of valuable rights in real estate. Moreover, it appears that this agreement was put before Mrs Beadle to sign without advice or opportunity for reflection. We understand she was called urgently on site and her signature obtained without any suggestion that it would have been proper for her to have taken legal advice on the matter. Our client is of course, not bound.

We appreciate the circumstances of your client as outlined in your letter. In normal circumstances would have used our best endeavours to co-operate to enable a contract to have been entered into to meet your client’s convenience. Indeed Miss Arthur spent some considerable time in the writer’s absence, yesterday afternoon establishing the titles.

It appears that the footpath is at its narrowest point not more than 6’5" wide. There are we understand boundary stones which might well be vulnerable to passing vehicular traffic. Moreover, those people using the roadway as a footpath and in reliance upon the quiet amenity which the limitation affords, might well be affected by the creation of a vehicular right.

We have this morning taken the preliminary instructions of our client who has asked us to advise fully in the matter. We propose with all due expedition to meet her on site early next week and thereafter, advise her on her proper and best course of action. When this has been done we shall write further on the matter. Meanwhile you will doubtless advise your client and Mr Cole to have no communication with our client save through ourselves."

There was thereafter a flurry of correspondence. It was to no avail. By 17 February, Bois & Bois had taken advice from a professional valuer and advised that Mrs Beadle was prepared to sell the freehold of the whole of the private footpath for £15,000. Mr Snell sought and obtained a Remise de Biens. During the course of that Remise, a further offer was received to sell the "fonds" of the footpath for £10,000 provided that Mr. Snell abandoned any claim for damages against Mrs Beadle. As a final turn of the screw, the Planning & Environment Committee has now given permission for "Broadlands (now owned by a third party) to have direct access to the main road.

Advocate Falles argument leaves no sympathy for Mr Snell. He criticizes him for effectively dealing with Mrs Beadles property for many years without contacting her. For two years he ignored her until the eleventh hour when desperation set in and his agent, Mr Cole, contacted his client. That may be a subject of criticism but it is not the point.

Each party intended a contract. We have no doubt that implied in that contract was a right for the four cars coming from a "fonds" quite unconnected with the servitude over the private roadway to use that private roadway (see the Court of Appeal in Sibley (née Pavey) v Berry (née du Feu) (7 July 1987.) Jersey Unreported ;(1992) JLR N4

There are problems. "Qui veut la fin, veut le moyen" is clearly illustrated by the example from Dalloz cited by the learned authors of the Jersey Law of Property at page 12:

""Implicit in a right of servitude is a right to do that which is necessary for the enjoyment of the servitude." (Dalloz loc cit para 465). The example usually given is that of a right to draw water from a fountain on a neighbouring property, which necessarily carries with it a right of way across that property to the fountain. If the principal servitude is extinguished in any way, the "servitude accessoire" comes to an end with it and cannot continue to be exercised thereafter".

There might well have been huge difficulties unless the contract had been carefully drafted for new rights which would have had to be constructed. One has to bear in mind that the purpose of Mr Snells exercise was to sell as soon as possible to a developer, quite unknown to Mrs Beadle, who would no doubt have sold on to another party when the development was finished. That would have been a question for the draftsman who could, in our view, have drafted a contract to create a servitude binding on the "hoirs, successeurs ou ayant droits" of Mrs Beadle.

That, however, is not the main thrust of the defendant’s argument. Advocate Falle reminds us that implicit in every contract is "volonté". It was of the very essence of Mrs Beadles defence that the "volonté" of the party that suffered the "lésion" was negated. He looked at the doctrine of "déception d’outre moitié".

Mr Falle, as we have said, takes an intensely critical view of the events of 1 and 2 February 1994.

We were told that the deception of Mrs Beadle lay in the lateness of calling her in as a rescuer and in the representation of Mr Cole, a professional consultant who gave an opinion of value when asked and which opinion was relied upon. It was, said Mr Falle, a clear deception. It annihilated "volonté". The presentation of the deception arose from the fact that it was less (and according to Mr Roger Trower vastly less) than half the price. Mrs Beadle through her lawyer implied that the plaintiff lied in the suggested value of £50 - £100 and the surrounding circumstances of the agreement (or "trap" as Mr Falle called it) confirmed the deception. We may presume from that that there would not have been a deception in those circumstances if Mrs Beadle had come back to say "£100 is derisory but I will gift you the right that you require as the footpath is of no value to me".

Le Gros, quoting Terrien, says (at page 350):

"Ce supplement de prix est fixé d’après la valeur de l’immeuble au temps de son aliénation".

He goes on to say:-

"L’action en récision pour cause de lésion ultradimidiaire n’est pas recevable dans les contrats où le profit ou la perte dépend d’un évènement incertain. La raison en est que les risques de gagner ou de perdre sont communs aux parties, et il est impossible de déterminer la lésion par suite du caractère aléatoire de l’objet du contrat.

That situation, says Mr Falle, is wholly unlike the commercial valuation in this case. There was no "évènement incertain", nor a "caractère aléatoire".

There is no disagreement that all the cases brought to our attention on "lésion" arose out of contracts already passed. Even the oath taken on passing a contract does not prevent a later recission. Again, le Gros at page 352:-

"D’autre part, le Conseil Privé dans l’action Hugh Godfray et John Godfray, Appelants, et William Francis Godfrey, Intimé, 1865, envisagea la question du serment d’une manière bien différente. "It is only right to consider the oath as containing a tacit reservation of just grounds of complaint."

Selon nous, le vendeur a le droit d’exposer en Justice ses griefs malgré son serment. Il est à présumer que son consentement de vendre à trop bon marché est imparfait. Restreindre le droit d’action aux héritiers équivaudrait à un déni de justice pour leur parent. La plainte de l’insuffisance du prix de la vente émane du vendeur, et différer le droit d’action jusqu’au temps de l’ouverture de sa succession aurait pour effet de tolérer la déception pour un temps indéterminé et de rendre plus difficile la tâche de fixer la valeur de l’immeuble au temps de son aliénation."

So seriously is such a deception regarded that as the Privy Council said in Godfray v Godfray (1865) Moo PCCNS 316; 16 ER 120"By the local customary law, parties wronged by........................bargains are allowed a period of thirty years ................ from the date of the sale to set them aside." The law is well expressed by Terrien du Droict Civil,( 1^st Ed’n 1574) p329"De Clameur Revocatoire":-

"La clameur reuocatoire ou de deception est en usage, & se donne quand aucun a vendu son heritage, & il dit & veut soustenir qu’en faisant la vendue, l’heritage vendu valoit plus que le prix pourquoy il le vendit, de moitié plus qu’il n’en receut, & outre. Et par ce dit & soustient auoir esté en ce deceu d’outre moitié de iuste prix. S’il vient dedas trente ans ensuyuas de la vendue, le Bailly luy doit accorder ladite clameur, ou à l’heritier du vendeur s’il la demande dedans le temps dessus dit. Et quand le clamant à obtenu sadite clameur, laquelle il doit porter par escrit, il en doit par le Sergent ordinaire faire faire l’assignation. Et se le porteur de la clameur prouue que lors du contract, l’heritage pourquoy il print sa clameur, fust de la valeur de la moitié outre le prix qu’il en receut, & plus, il viendra en attente. Et sera le contract cassé & adnullé, & le porteur de la clameur enuoyé la proprieté & possession d’iceluy heritage. Ou sera le defendeur receu a suppleer au iuste prix. Et s’il ne prouue ce que dessus est dit, il decherra, & payera les despens de sa partie."

Mr Falle argues that this case goes far beyond an innocent deception which is shown by the unseemly rush to contract, the suggestion of the price made by a man who was, in Mrs Beadles eyes, a professional adviser and the drawing up of a document designed to entrap.

Mr Falle also called in aid the Court of Appeal case of Leigh v McLinton (1991) JLR274 CofA. In that case, the learned Court quoted the classical enunciation of Lindley LJ in Allcard v Skinner (1887) 36 Ch D145 at 182-183:

"The principle must be examined. What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? Or is it that it is right and expedient to save them from being victimised by other people? In my opinion the doctrine of undue influence is founded upon the second of these two principles. Courts of Equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction. Huguenin v Baseley ... is itself a clear authority to this effect. It would obviously be to encourage folly, recklessness, extravagance and vice if persons could get back property which they foolishly made away with, whether by giving it to charitable institutions or by bestowing it on less worthy objects. On the other hand, to protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws; and the equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual tyranny and with the infinite varieties of fraud."

It was submitted that "lesion" follows the same principle albeit that we are not dealing with fraud or undue influence. Again the Court of Appeal said this at page 281:

"Before parting with the authorities and examining the facts in this case, it is useful to note the analysis of the decided cases made by Bridge, LJ in Re Brocklehurst (2), where he says ([1978] Ch At 42):

"In my view, the distinguishing characteristics which are more helpful in enabling the court to recognise a relationship between donor and donee giving rise to the presumption are a duty on the donee to advise the donor, or a position of actual or potential dominance of the donee over the donor. In all the decided cases to which we have been referred one or other or both of these characteristics can be discerned... But they (the characteristics] are hardly less easily discernible in the de facto relationships, illustrated by the decided cases to which we have been referred, in which the presumption was held to arise."

The Court then is here today, should it be deemed necessary not to protect a contracting party from its own folly but to protect it from being deceived. There is a reluctance in a society which still holds sacred the concept of "la conservation de biens dans la famille" to allow its citizens to be parted too easily from their real property. Hence the doctrines of "promesse en héritage ne vaut" and "nul servitude sans titre".

We heard from two experts - Mr Roger Trower, an experienced Estate Agent, was adamant that the vehicular right of way had a real value way and beyond £100. It was his partner at Broadlands who had advised Advocate Falle of the value of £10,000 - £15,000 for the fonds. It was Mr Trower from whom the Jurats sought advice during the Remise des Biens.

Mr Roger Mariott, a chartered surveyor, took a quite different view of what he described as a neglected path of gravel and weeds. It was of no value to a third party. He said that a right of vehicular way over 65 square feet of land was worth, on the basis of the prices paid by the States in road widening schemes and the like, probably no more than £1 per square foot, but of course he agreed to what is obvious - that there was a material benefit for Mr Snell. It is interesting that in the bundle of disclosed documents is a letter from Advocate Falle to his client (it is dated 11 May 1995) where he refers to the strip of land as "the ransom strip".

Let us approach the problem in a different way. In Wallis v Taylor (1965) JJ at 455 the Court said this:-

"It is an established principle of Jersey law that "la convention fait la loi des parties" and the Court will enforce agreements provided in the words of Pothier (Ouevres de Pothier Traité des Obligations 1821 edition at page 91) "elles ne contiennent rien de contraire aux lois et aux bonnes moeurs et qu’elles interviennent entre personnes capables de contracter."

Le Gros also says (350):

"Ce n’est pas à dire que le préjudice qu’éprouve le vendeur par sorte d’insufficance du prix suffit pour resconder le contrat. D’autres circonstances doivent concourir à l’annulation du contrat, tel que le dol".

We have written on "dol" in West v Lazard Brothers (1993) JLR 165where at 300 we said this:

"We prefer the definition of dol given by Pothier in 1 Traité des Obligations, at 20 (1827 ed.) and cited by the royal Court in Att. Gen V Foster (3)

"On appelle dol, toute espèce d’artifice dont quelqu’un se sert pour en tromper un autre: Labeo definit dolum, omnem calliditatem, fallaciam, machinationem, ad circumveniendum, fallendum, decipiendum alterum, adhibatam...."

Mr White also referred us to a work not previously referred to in this court. That was Bousquet, Dictionnaire de Droit, at 549 (1847). Mr Sinel was particularly scathing about the use of a writer who was writing after the French Civil Code. There is, however, much of interest in the work of M Bousquet. Not only does he follow the definition of Pothier used by the learned Bailiff, but he comments on the Latin definition attributed to Labeo in this way:

"Suivant les interprètes, dit M Chardon (Traité du Dol 1er Vol., p5,) calliditas signifie la dissimulation artificieuse; fallacia le langage trompeur; machinatio, l’intrigue ourdie pour en imposer. Cette définition embrasse effectivement tous les moyens que l’art de tromper puisse imaginer."

Maître Chardon, who wrote his Traité du Dol et de la Fraude en Matière Civil et Commerciale in 1828, is of course an author writing well after the Napoleonic code."

We quite fail to see what "dol" was perpetrated on Mrs Beadle, a lady whom we have said was honest, kind but more importantly wordly-wise. She had served on the Island Development Committee and on many others during her twelve year tenure as a Deputy. She had run her own business. She had bought and sold property. Her family had owned much of the land at Grève d’Azette. Her grandfather had been landlord to Victor Hugo. She signed of her own free will and with time to reflect and to take advice. The agreement was necessary not only to found a formal contract, but also, as was shown in a letter dated 1 February 1994 from Mr Cole to Messrs. Pickersgill & Le Cornu, necessary to show the lender who was threatening to foreclose some "proof of intent".

Of course there is criticism, both of professional and lay persons in this saga. It is perhaps unfortunate that an independent surveyor or valuer (such as Mr Mariott) was not called by the defence. We say that only because Mr Trower was advising the Jurats in the Remise and Miss Martin felt that his view could not be entirely dispassionate.

There was no special relationship between the parties (such as a confidential relationship) and once Mrs Beadle had been given a suggested figure of £50 to £100 after her enquiry of Mr Cole, she was perfectly free and perfectly able to take advice.

This is the twentieth century in a small and sophisticated island where a lawyer or a professional adviser is a telephone call away. We left the Court with Mrs Beadles words ringing in our ears where she said that she was happy with the signed agreement (which was to sell a vehicular rights of way over a disused footpath) until her advocate told her not to proceed. The right of way and, indeed the footpath, was not valuable to her at all. She said so. She was quite amazed when Mr Trower (or his partner) said that she could make some £15,000 out of the transaction. By then, time had run out for Mr Snell. It was Mr Falle who called the document drawn up by Mr Cole an "aide memoire". It was in our view no such thing. It was an easily ascertainable contract entered into without any inducement by two mature and intelligent adults. We remain unconvinced that there was "déception d’outre moitié" and we find for the plaintiff.

Authorities

Selby -v- Romeril (11 August 1995) Jersey Unreported

Sibley -v- Berry (1992) JLR N4; (7 July 1987) Jersey Unreported CofA

Dalloz : Nouveau Repertoire de Droit 2^nd Ed’n para 465: Servitudes

Ferbrache -v- Bisson(1981) JLR 103

Newman -v- Marks and Leros Limited (1985-1986) JLR 338

Le Gros:- "Traité du Droit Coûtumier de l’Ile de Jersey" pages 350 - 355

Treitel "The Law of Contract" (5^th Ed’n): pp.56-7

4 Halsbury 9: paras 296 - 304; 317 - 319

Leigh -v- McLinton (1991) JLR 274

De Gruchy (trading as De Gruchy and Company) -v- Quenault (1990) JLR 48

Terrien "Du Droict Civil" (1^st Ed’n) (1574); pages 329 - 333 "De Clameur Revocatoire"

Poingdestre: du Coûtume Reformé MSS. 1680 "Des Servitudes" pages 426 - 430

Basnage: Commentaire sur la Coûtume de Normandie (4^th E’dn 1778) Tom.1 pages 31 - 34, "De la Clameur Révocatoire"

Le Geyt, "Privileges Loix & Coustumes" pages 71 - 72 "Des Restitutions" - 1953

Mathews & Nicolle; The Jersey Law of Property (1991) - pages 8, 10, 12

Abdel Rahman -v- Chase Bank (CI) Trust Company Limited and Five Others (1991) JLR .pages 103 - 168

Dickson: Introduction to French Law, (1994) pp. 146 & 209