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.

Thomas Gordon, Son to the deceased Thomas Gordon, Writer to the Signet,
v.
The Duke of Gordon

Date: 18 February 1713
Case No. No 89.

Compensation was allowed to be proponed by way of suspension, although the contrary had been stipulated by contract, in case an irritancy should be incurred by not performing an engagement at a particular day, which day had been allowed to pass.

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The Duke of Gordon having granted a bond of corroboration of other two bonds, to Thomas Gordon and his curators, for the accumulate sum of L. 17,301 Scots, with this provision, “in case his Grace should, betwixt and the term of Martinmas 1707, make appear and instruct, that he had at any time made payment of any part of the sums for which the bond was granted, the same should be discounted, and allowed pro tanto; without prejudice of any action of recourse competent in law, for repetition of any part of the sums above-mentioned, even after elapsing of the said term; declaring, nevertheless, that the above provision should not afford or furnish any ground of suspension after the said term.” Thomas Gordon charged the Duke to pay the remainder of the said sum, after deduction of partial payments; who suspended, upon this ground, that he made some payments before the date of the bond of corroboration; and for instructing thereof produced several writs.

Alleged for the charger; No payments of the sums corroborated, that were not instructed before Martinmas 1707, can, in the terms of the bond, be now a ground of suspension; because, pacta dant legem contractui, unless where they are contra bonos mores, or reprobated by our municipal law, which cannot be pretended in this case. For why may not a man oblige himself not to suspend upon such reasons? Nay, since our law doth not allow compensation to be received after decreet, may not this very well be the ground of a stipulation? 2do, Albeit law allows purgation of legal penalties, after elapsing of the pactioned term, that holds not in the case of conventional penalties incurred; especially such as do irritate property or heritable rights. 3tio, A bond of corroboration doth naturally stop suspension upon preceding grounds of compensation, which a party is understood to have renounced by the granting such a bond, June 28. 1672, Murray contra Spalding, voce Vis et metus; and much more should this hold, where the reason of suspension is expressly excluded by paction.

Answered for the suspender 1mo, Albeit just and equal pactions are to be regarded, captious and insidious pactions are not, L. 7. § 16. D. De pactis. Nor was the compensation here renounced, but only it was provided, that nothing should furnish a ground of suspension, save legal instructions of payment at the term above exprest. The refusing such grounds of compensation, hoc statu per modum exceptionis, would render them ineffectual; for, being constituted allenarly by holograph writs, they would be excluded by prescription, if pursued via actionis, and iniquum est aliquem locupletari cum alterius jactura. No distinction is to be put betwixt penalties concerning heritage, and those concerning moveables and contracts; since, in all moveable bonds, the penalties, when exceeding damage and interest, are constantly reduced thereto; and Mr Gordon can qualify no prejudice by the not producing those grounds of compensation sooner. 3tio, The decision cited for the charger differs from the present case; for there the bond of corroboration was taken with an express view to shun the compensation, whereas here it was specially pactioned, 'that no suspension should be offered, but upon instructing payments received.'

The Lords allowed the compensation proponed by his Grace by way of suspension, notwithstanding the writs were not offered before the term of Martinmas 1707.

Forbes, p. 670.