Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. VII.

Between Landlord and Tenant.

Annuitants of the York Buildings Company
v.
Mr William Adams, Tacksman of the Baronies of Cockenzie and Tranent

Date: 5 June 1741
Case No. No 62.

A tacksman is not bound to repair damage occasioned by any extraordinary accident, though he oblige himself in the lease to put the houses in repair, and keep them so, and receive a sum certain on that account.

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Mr Adams having taken a lease of some estates belonging to the said Company, on which there were several coal and salt-works, &c. being charged for payment of the rent, suspended on this ground, That he had suffered great damage by the hurricane, which happened on the night between the 13th and 14th of January 1739, and therefore ought to be allowed retention of as much of the rent as was necessary for repairing the subjects damaged.

Answered for the chargers, That though it may be true, that, by law, a tacksman is only tied to ordinary diligence, so that, when houses on a farm are destroyed by thunder, lightning, or innndations, which could not be foreseen, or if foreseen, could not be prevented, the loss must affect the proprietor, and not the tenants; yet, where paction to the contrary has intervened betwixt the setter and taker, transferring the hazard upon the tacksman, such pactions ought to be observed, especially as in such cases as now under consideration, where the question is not upon such extraordinary events of thunder, lightning, &c. occasioning the total destruction of the houses, but a partial damage done to the houses on the farm by storms of wind, frequently occurring in this climate, though not so frequently in the same degree; and which therefore were probably under view of parties-contractors at the time of entering into this lease; see l. 15. § 2. D. Loc. Cond. 1. 78. § 3. D. De contra emp. But, in the present case, it is not left upon a presumption; for, by a clause in the tack, L. 150 Sterling is allowed by the Company to the suspender for putting the houses in repair, upon which account, he is not only bound to put them in good repair, but to leave them so at the expiry of the lease. And if, by the above clause, any hazard at all is understood to be undertaken by the suspender, to be sure, it must be that of winter-storms, as being that which naturally would occur to both parties; and if this holds true, it will seem difficult to define the degree and extent of the storms he is to undartake, and such as he left upon the hazard of the proprietor.

Replied, By the nature of this contract, the tack-duty is the equivalent for the use of the subject set in tack, and the setter, before he can exact the tackduty, must procure the tacksman possession, and maintain him in it. 2do, It cannot be controverted, that a tacksman should not be liable for such extraordinary damages as might be occasioned by the late unusual and extraordinary storm; see l. 28, C. De Locat. l. 15. § 2. D. De Loc. so that, it is plain, unless a tacksman did, in express terms, undertake to insure the subjects from all damages, by which they could be attacked, either in the ordinary way, or by whatever other extraordinary accident, then the rule of law must take place, that the loss and damage occasioned by those accidents must fall on the heritors. 3tio, From the clause in the tack, no such inference can be deduced, for this being a bona fide contract, must be constructed according to the usual meaning of parties; and as even in cases of ambiguity, the interpretation would go against the setter, in whose power it was legem contractui dare, it is plain, the tacksman's obligation can be no further extended than to such repairs as should become necessary, through the common and usual decay and waste of the materials; but surely, in no construction, can it be extended to comprehend an earthquake or hurricane, with the like of which, this climate never, or at least rarely, was ever affected.

The Lords found, that the tacksman ought to have allowance for the extraordinary damages sustained by the late hurricane, notwithstanding the allowance of a sum in the tack, for putting the houses in repair, and the obligation to keep them in repair during the currency of the tack; and allowed a conjunct proof as to the condition the houses were in when the tempest happened, and the extent of the damages. See Tack.

Fol. Dic. v. 4. p. 62. C. Home, No 168. p. 282.