Scottish Court of Session Decisions

Subject_1 IRRITANCY.
Subject_2 SECT. VIII.

Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.

Agnes Dewar, Relict of Mason, Shore-master in Leith
v.
Walter Lermont, present Shore-master there

Date: 4 January 1694
Case No. No 84.

An annuity was to be restricted, if punctually paid. The failure was found applicable only termly.

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The Lords repelled the allegeance, that she could not transact her future aliment without the authority of a Judge, nor restrict it to a lesser sum, as she had done, to her prejudice: For the Lords thought that the Roman law was equitable on that point, and favourable to liferenters, that they should not make prejudicial transactions without the intervention of a Judge's decreet, as is clear from the tit. D. and C. de transast.; yet this had not been received in our law. The next point was, whether that clause in the restriction, that how long he made punctual payment, she should not trouble or augment him, imported an irritant resolutive clause, that if he failed, she might recur to the first bargain, and crave the whole, if it was incurred? They were ordained to be further heard thereon; but the Lords at the time seemed to incline, that it was equivalent to an irritancy.

1694. June 28.

Agnes Dewar having an aliment of 200 merks yearly out of the shore-master of Leith's dues, she did restrict it to L. 50 yearly, with this quality, that on thankful payment of the said L. 50 she should not trouble him for any more, nor augment it. He having failed in payment, she pursues to be reponed to her own place, of exacting the full 200 merks. The doubt was, if the clause was truly irritant and resolutive.—It was argued affirmative, because she says, on thankful payment I shall exact no more, ergo a contrario sensu, if you do not pay me duly, I will seek the whole.—On the other hand it was alleged, That pacta legis commissoriæ were unfavourable, and not to be extended beyond the express words and conception of them.—Answered, This held in odious penal irritancies, as in pignoribus, or in reversions; but not in so favourable a case as an aliment.——The Lords were divided on the point. Some thought it not resolutive. Others that it was purgeable by payment at the bar. At last, the Lords agreed on this, that he had incurred the failzie and forfeiture for bygones, and so behoved to pay at the rate of 200 merks for these; and that in time coming, she should have right to the whole, unless he paid the restricted, sum within eight days after each term as it fell due.

Fol. Dic. v. 1. p. 489. Fountainhall, v. 1. p. 588. & 623.