An heritor affirmed to his tacksman, at letting the lands, that there was paid by the preceding tenants for each acre a great deal more than really was paid. This was found not sufficient to reduce the tack.
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Whitelaw reported Henry Nisbet younger of Dean, against John Kinnaird, his tenant in the park beside the Coltbridge, being mutual charges on a 40 years tack for their respective breaches and contraventions of the articles thereof. Kinnaird craved to be free upon the head of dole, circumvention, and extreme lesion ultra dimidium, which he qualified thus; that Dean, the time of the bargain, asserted that each of these acres paid him three bolls, whereas now it appears they only paid five firlots; and, on this false insinuation, made him engage to pay L. 25 the acre, which is an unsupportable difference; that, in dunging and bringing in this outfield-ground, he has wared upwards of L. 500 Stering, and yet it does not afford him the half of the rent; that Dean was bound to have stoned the ground, by removing both the heritable and moveable stones, and to have made cisterns for watering the cattle, but has done neither of them sufficiently; and therefore craved to be liberated of so unequal a tack. — Answered, Agreements of parties are not to be reversed and rescinded on such pretences; for, though it may be an argument of disingenuity to commend their goods beyond what they know them to be worth, yet pactions are not to be broke, else the most part of bargains must be cast. If, in selling a horse, the seller affirm he stood him L. 20 Sterling, whereas he truly paid but L. 10, that's no ground to repone the buyer; for in all such cases the law says naturaliter se invicem decipere permittuntur, et caveat emptor; his eye is his merchant, and there cannot be an exact arithmetical quality observed; and though lesion ultra dimidium justi pretii was allowed in the Roman law, yet it has been refused in our practice for the greater freedom of commerce, 23d June 1669, Fairie contra Inglis, voce Sale.—Replied, This was dolus dans causam contractui, which renders it ipso jure null; and the promoting bargains by lies, is neither consonant to Christian candour and sincerity, nor to be encouraged. Some moved to take trial, before answer, of the motives inductive to the bargain, and the proportion of the lesion. Others thought this opened too large a door to quarrel tacks of any kind; but finding a disposition in both parties to resile, the one craving only his bygone tack-duties, and the other his damages to be repaired; the Lords named some to try an accommodation and settlement betwixt them.
December 6. —In the action mentioned, 25th November 1698, between the L. of Dean and Kinnaird; the attempted settlement not taking effect, the Lords advised the cause in jure; and found the reasons of circumvention and fraud, both in consilio et eventu, not sufficient to reduce the tack; and that the tenant should have informed himself better what was the true rent, and not have relied on Dean's assertion; and tried the quality of the ground; and his eye being his merchant, he had none to blame but himself, and he had acquiesced two years. But as to the damages by not removing the stones, and not making the ponds, the Lords allowed a probation, before answer, to both parties on their several allegeances.
Fol. Dic. v. 1. p. 332. Fountainhall, v. 2. p. 19. & 23.
