Subject_1 LOCUS POENITENTIAE. Subject_2 SECT. III.
What writing sufficient to bar Locus Pćnitentić. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pćnitentić. - Promise to ratify an informal writing bars Locus Pćnitentić.
Gordon v. Pitsligo
Date: 12 November 1674 Case No. No 28.
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Mr Thomas Gordon and his father pursued the Lord Pitsligo, upon a promise to enter them to certain lands, which they had acquired, holden of him.
It was alleged, That if there was such promise, it was to be performed in writ, by a charter to be granted by the defender; and there is locus pænitentiæ until the charter be subscribed. It was answered, That the promise was referred to the defender's oath; and albeit there is locus pænitentiæ in synalagmis, and contracts; yet where there is a positive promise to give or do any thing, the same being verified, ought to be fulfilled; and there is no locus pænitentiæ upon pretence that it should be fulfilled in writ.
The Lords repelled the allegeance in respect of the answer foresaid.
Reporter, Newbyth.Clerk, Monro.
Fol. Dic. v. 1. p. 562. Dirleton, No 192. p. 82.*** Stair reports this case:
1674. December 1.—Mr James Gordon having bought the lands of Boughlie held of the Lord Pitsligo, who being present at the bargain, promised to receive the buyer gratis; and having disponed his right to Mr Thomas Gordon, he pursues Pitsligo to receive him conform to his promise. The defender alleged absolvitor, because this being a promise requiring writ to its accomplishment, the promiser hath locum pænitentiæ, and doth resile. It was answered, 1mo, That albeit law hath allowed a power to resile in matters requiring writ, before it be adhibited, yet that is only in the case of bargains where there are mutual performances, in which the law indulges that time to resile, which cannot be extended to a gratuitous promise without any mutual performance; 2do, Parties can only resile re integra, which holds not here; for this promise having been made the time of the bargain, without it the buyer would not have proceeded to give such a rate, and would have taken bond of a sum of money of the seller; that thereupon he might have apprised, and compelled the superior to enter him.
The Lords repelled the defence in respect of the reply, that the matter was not entire.
Stair, v. 2. p. 286.*** This case is also reported by Gosford:
1674. December 2.—In a pursuit at Mr Thomas Gordon's instance against the Lord Pitsligo, as superior of the lands of Buphleys, for entering him his vassal gratis, and subscribing a charter for that effect, conform to his promise solemnly made the time of the bargain, at which the Lord Pitsligo was present, and did induce the pursuer to make the bargain upon that consideration; and, accordingly, the minute was presently drawn up and subscribed, as was offered to be proved by the writer and witnesses present at the perfecting of the bargain; it was alleged for Pitsligo, That any such alleged promise was not obligatory, unless he had been obliged in writ; because, in all obligements and contracts for disponing of lands and heritable rights, there is always locus pænitentiæ, and the disponer may resile at any time before he subscribe the minute or contract; neither can any alleged promise be proven by witnesses and communers. It was replied, That the Lord Pitsligo being only superior of the lands, and not being obliged to dispone the superiority, but only to enter a vassal to hold of himself, he having promised to do the same gratis, could never resile, except the bargain betwixt the buyer and seller had taken no effect. The Lords did sustain the pursuit founded upon the promise; and found, that the principal bargain having taken effect, there was not locus pænitentiæ in this place; but declared, that Pitsligo's promise was only probable by his own oath, and not by witnesses.
Gosford, MS. No 717. p. 433.
*** See Park against University of Glasgow, 10th December 1675, No. 28. P. 2535. voce Community.
