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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> John Dickson v James Aitcheson. [1685] 2 Brn 83 (00 November 1685)
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.
John Dickson
v.
James Aitcheson
1685 .November .Click here to view a pdf copy of this documet : PDF Copy
One Aitcheson being infeft in a house in Kelso, upon a disposition from Dickson, which happened to be burned before he attained possession; and the seller having pursued for the price,—Aitcheson suspended on this reason, That he was never in possession, and therefore the loss, by the burning of the house, must ly upon the seller. 2. A part of the price was remitted to third parties, and not yet determined by them; so that the bargain was incomplete. Answered, A sale being perfected, periculum rei venditæ ante traditionem sequitur emptorem; and, by delivery of the disposition, the bargain was perfected; and the danger should have followed the buyer, though he had not been infeft; multo magis where he was infeft, and present producing the disposition. Besides, the tradition of earth and stone was a symbolical possession; and, if need were, it could be made appear that possession was offered by instrument. 2. The referring a part of the price to the arbitrament of a third party hinders not the consummation of the bargain. The Lords found the letters orderly proceeded against the buyer.
Page 29, No. 139.
The electronic version of the text was provided by the Scottish Council of Law Reporting