Where a conventional irritancy was contained in a tack, the defender's offer to purge was not admitted.
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Gilbert Hay of ——— pursued one Robert Moffat, to hear and see a liferent tack of the lands of N. set to him by the said Gilbert, with consent of his mother, to be reduced and declared null, and the possession of the land to return again to the said Gilbert, likeas the said tack had never been set. The reason of the summons was founded upon a clause irritant, contained in the said tack that if three terms ran unpaid, the said tack should expire, and the possession of the lands to return again to the setter, as if the said lands had never been set. To which it was answered, As to the first term which was alleged to be unpaid, the cause thereof was the pest, et casus fortuitus quem evitare non potuit reus, the pest being in his house in such sort that he might not have access to come to his master to offer the payment of his duty; and as to the rest of his duties that was resting, he had soon after the running forth of the third term offered the same to his master, viz. within the space of a month after Whitsunday, which was the last term; and albeit there was a clause irritant, inserted in the tack, yet potuit tempestiva hac oblatione purgare moram, et si emphyteuta non soluti cannonis elapso bienno moram purgare potest, multo majus hæc equitas servanda est, simplici colono seu conductori.' To which it was answered, That there was here 'pactum oppositum contractui; et ubi dies est apposita certa, et pæna certa, nullo modo potest purgare moram ut in L. 8. (et ibidem Doctores.) D. Si quis cautio; et in L. 84. D. De verborum obligatienibus, et ibidem Bart. et vide eundem pulcherimme disputantem in predict. L. 8. ubi hanc distinctionem, prout quod in judiciis et stipulationibus prætoriis, ex æquitate admittitur purgare moram, sed in pactis conventionalibus prætor debet judicare ex conventione partium et non ex sua æquitate; et multo clarius, Zoessius in L. 52, D. De verborum obligationibus; in stipulatione, inquit, conventionali, modus, forma, limitatio, argumentum, qualitas, et quicquid quod pertinet ad stipulationem pendere omnino ex contractibus; et alibi versiculo Z. ibid. partes contrahentes dant formam et intellectum stipulationi conventionali, et semper tenendum est; quod aio Prætor, L. 7. § 7. D. De pactis; and so the feilzie that was mads by reason of the clause irritant in pacto convento post caducitatem could not be purged by any offer thereafter, except the parties would assent to the same; and, as was reasoned among the Lords, albeit in fous and heritable titles, the Lords are loath to retreat and reduce the same, et aliquando oblatione, consignatione, et deposito, purgationem moræ admittitur; yet into tacks and assedations, when any clause irritant of not payment is inserted in the same, they decern according to the same, et instar mentem contrahentium; nam de jure et praxi nostra, all tacks are strictissimi juris. The Lords found, by interlocutor, that by reason of the clause irritant non obstante obligatione et moræ purgatione the tack fell.
