Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.

Brown of Carsluith
v.
Muir of Craig

1736, Nov. 30.
Case No. No. 8.

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The Lords adhered to the Ordinary's interlocutor finding the bargain neither usurious nor illegal, hut found that the obligation subsisted only during the two granters lives. I think the first part of this interlocutor very doubtful; but I am told there was no vote,—for I was in the Outer-House.—1st July 1736.

The Lords, 30th November, altered the interlocutor between these parties of 1st July last, finding the contract anent the sale neither usurious nor unlawful. They did not indeed think it usurious, but they thought it mali exampli, that it should be an express condition of a loan of money that the lender should not only have a right of preemption of lands, (which may perhaps be lawful, if at the market price when the lands come to be sold) but that he should have it at a definite price; and that such contract was reducible upon the same grounds of law as the pactum legis commissoriæ in pignoribus, or taking a premium for becoming cautioner, viz. that it was contra bonos mora. Therefore they found that this contract quoad the sale was contra bonos mores and not binding.