Where Writ is not necessary. - Where a Bargain is agreed to be perfected in writing. - Locus pćnitentić after Writ is interposed. - Where the Right to be granted is disputable. - Verbal Bargain for a Lease
Watt v. Stewart
Date: 20 February 1703 Case No. No 67.
Even after arles, a man was allowed to give up a house he had taken, having done so 40 days before the term. This in consequence of an alleged practice.
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Mr Adam Watt pursues John Stewart glover in Edinburgh, for a house-mail. His defence was, That as I took your house in March to enter at the Whitsunday after, so I gave it over to you by way of instrument de recenti, more than 40 days before the term, and that, by the general custom within the town of Edinburgh, such over-givings have been sustained as legal; and there was locus pænitentiæ, all the penalty being loss of the arles; and being before the 40 days, the landlord has time enough to set his house.—Answered, No such custom proved; besides, it is most unequal and irrational for the tenant to have liberty to resile, and not the locator or setter; why should he be bound, and the other loose? and this contract of location conduction being once perfected, there should be no locus pænitentiæ.—Replied, Tenants in possession may give over any time, providing there be 40 days yet to the term, and why may not an intrant tenant do the same?—— The Lords sustained the over-giving, in respect of the custom, though it be an evident hardship upon landlords; but some of the Lords moved, that further trial should be taken anent the universality of the custom, which was affirmed to lie just on the contrary side.
Fol. Dic. v. 1. p. 564. Fountainball, v. 2. p. 181.
