Price conferred in arbitrium. - Sale of heritage when completed. - Where the buyer's faith is followed.
E Montrose v. Scot
Date: 13 March 1639 Case No. No 1.
The price was referred to the buyer himself. He having determined it, the sale was found good.
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The E. of Montrose being in sundry conferences with James Scot, burgess in Montrose, for buying of a house in Montrose from the said James; at length, by a ticket subscribed to the said James, he refers the price of the land to the Earl's own appointing, who, according thereto, having determined a price therefor, and offering the same, he thereafter pursues the said James for disponing of the same heritably to him; and the other excepting, That his determination of the price, flowing from the party-buyer upon his alleged reference, committed to the Earl by the seller, ought not to bind him to that bargain, as if it were perfected; seeing it is lawful to him, and permissible of law, to resile from that reference and bargain before the alienation was perfected; and it is against law, and expressly prohibited in law, that any should be arbiter in re sua, as L. Pen. D. De receptis, &c. et L. Quod sæpe § Illud D. De contrahenda emptione: Dicit venditionem non valere quando quantitas pretii confertur in voluntatem, vel arbitrium emptoris. This allegeance was repelled, and the price determined by the buyer, upon this reference made to him by the seller, was allowed as good, and found not disagreeable to the laws and practice of this kingdom.
Act. Advocatus & Mowat.Alt. Nicolson & Sandilands.Clerk, Gibson.
Fol. Dic. v. 2. p. 356. Durie, p. 883.
