Scottish Court of Session Decisions

Subject_1 PART I.

TACK.

Sir Robert Pollock
v.
Thomas Paton

Date: 24 July 1777
Case No. No. 4.

The effect of a paction that the tenant should pay at the rate of 100l. Scots per acre, in case he should plough more than a certain given quantity.

See No. 144. p. 15262.

Click here to view a pdf copy of this documet : PDF Copy

In the missive by which Sir Robert Pollock had let the lands of Flock and Flock-side to Thomas Paton, for one year, there was contained the following clause: ‘Further give you leave to plough what ground you had in potatoes last crop, lying in that division or inclosure in which your meadow lies, and if you shall plough any more there, you hereby agree to pay me £100 Scots for each acre, and proportionally for more or less.’ And the missive on the part of the tenant contains these words. ‘I hereby accept of the offers made me in said missives.’

The tenant having thought proper to plough up in the meadow ground not only what had been in potatoes, but about an acre and a half more, which he was no doubt at liberty to do by the missives upon paying at the rate of £100 Scots per acre, Sir Robert demanded additional rent at that rate for what had been so ploughed. He refused to comply.

After various proceedings, the Sheriff-Depute of Renfrewshire pronounced the following interlocutor: ‘In regard the £100 Scots per acre for what the defender should plough, more than what he is expressly allowed by the missive containing the bargain, is not said to be of yearly rent, find that therefore it must be understood to be penalty; restricts the same to what damage the pursuer sustained by the said ploughing, and allows him a proof thereof.’ The question afterward came to this Court by advocation, and being reported upon memorials, it was argued for the tenant, that if any one principle, can be said to be fixed in the law and practice of Scotland, it seems to be this, that all conventional penalties are restricted to the real damage and interest of the party. That the £100 Scots or £8. 6s. 8d. Sterling, stipulated in the missive, is a penal sum, there, can be no doubt, as the lands in question are part of a barren muir, not worth more than a very few shillings per acre, and in general the very best ground, even in the neighbourhood of the capital, brings no more than £2 per acre. That if instead of £100 Scots, £100,000 had been inserted in that clause, the Court would certainly have interfered, and restricted the penalty to the actual damage received. Majus et minus non variant, therefore, the real damage received must be the precise reparation which the party is entitled to recover, and the excrescence being greater or smaller, must always be lopped off. The Court, however, adopted the reasoning of the pursuer, and considered this clause not so much in the view of a penalty, as of a fair and legal stipulation entered into between the parties, and to which they were bound as a court of law to give effect. It was said, that if the tenant’s plea be successful, there must be an end of all improvements in this country; because if the master cannot preserve a certain mode of culture, the money laid out in improving his estate must be totally lost, as it is hardly possible to ascertain the exact damage which he may have received from the tenant adopting another mode of culture than what had been prescribed.

But even considering the clause founded on in the view of a penalty, a distinction was made between conventional penalties, which were said to be of two kinds. First, where a person bound ad factum præstandum, agrees in case of failure to pay a sum of money in lieu of it. The other is, where a sum is stipulated to enforce the performance of any obligation, which is much more strictly penal than the other. With regard to the first, Justinian has said, “optimum erit pænam subjicere, ne quantitas stipulationis in incerto sit, ac necesse sit actori probare quid ejus intersit.” See also Stair, B. 4. Tit. 3. §. 2. The very purpose of such a stipulation, then, is to prevent the necessity of proving an uncertain amount of damges, and the sum fixed on by the parties must be the rule without any modification. This is well illustrated in the Principles of Equity, B. 3. Chap. 2. With regard to the £100,000, it would be absurd in’ the highest degree and out of all bounds, and to such a stipulation, therefore, the Court might with some justice apply their nobile officium. It was also contended, that the £100 Scots per acre was not claimed as a enalty, but according to paction; for a penalty can only be annexed to a transgression. Here there was no transgression; because the tenant did no more than he was entitled to do, and therefore there can be no penalty. Much also was founded on an English case of Rolph contra Paterson, 18th February 1772, decided in the House of Lords, where effect had been given to a similar stipulation. The Court, therefore, determined in favour of Sir Robert Pollock, and found the tenant liable at the rate of £100 Scots per acre of rent for the whole of the ground in the meadow, which he had ploughed, over and above what had been in potatoes, as due by an express stipulation in the missive.

Lord Reporter, Westhall. Act. Ilay Campbell. Alt. G. Wallace.