Scottish Court of Session Decisions

Lord Justice-Clerk—One question of considerable interest was very learnedly argued at the bar, namely, when the subject of a sale is evicted from the purchaser, and its value is less at the date of eviction than at the date of the sale, whether the purchaser's claim against the seller under his warrandice is to be measured by the value at the date of eviction, or by the price which was paid?

This seems to have been an old, and, indeed, an unsettled controversy among the civilians, Pothier and the more modern commentators supporting the purchaser's claim for the price, while Domat, following the older writers, limits his demand to the value of the property at the date of eviction.

I do not find that the point has ever been directly decided in our own law; but the tendency of all the authority we have points to the opinion of Pothier as the better; and I have found no case in which less than the price has been awarded on eviction. Amid the conflicting texts in the Roman law, that on which our jurists have mainly relied is to be found in the 19th Book of the Digest, t. 1, law 11, § 18, which lays down the principle thus: “Neque enim bonæ fidie contractus hac patitur conventione, ut emptor rem amitteret, et pretium venditor retineret.” So that even when there was an agreement that nothing was to be due on eviction, that was construed not to extend to the price, but to extend only to profits and damage. Craig refers to this authority, B. 2, T. 4, § 9, in regard to such stipulations. He says: “In hac facti specie acquitas naturalis prevalet, ut qui alieuam pecuniam recepenit eam, fundo evicto, restituere cogatur, non obstante pacto convento;” and he quotes a case between Lord Leven and Wood of Largo, in which he says the point was raised, although not decided. But whether it is received among us or not, he professes himself ignorant.

Stair, Erskine, and Bell all deal with this matter, and their views substantially coincide. “Warrandice,” says Lord Stair (2, 3, 46), “hath no farther effect than what the party warranted truly paid for the right, whereby he was, or might be, distressed, though less than the value of the right warranted.” He continues: “This will not hold in warrandice of lands;” and he explains what he means by saying that in land “the buyer is not obliged to take the price he gave.” The passage will not bear the construction the defender tried to put on it, that the purchaser took the risk of a fall in value; although some words, without the context, may seem to point in that direction. It plainly means that warrandice in sales of land implies an obligation to restore the price on eviction, and all loss over and above.

The passage in Erskine bears out this view, although his words also are ambiguous ( quotes Ersk. 2, 3, 30).

Mr Bell in his Principles says, “The purchaser is entitled to demand the whole worth of the subject at the date of eviction, and not merely the sum which he has paid.”

In all these passages the price paid is assumed as the rule in bargains as to moveables, and, as I read them, in bargains about land the price and all damage over and above; and that on the principle that in no case can a seller be permitted to retain the price of that which he had no power to sell. I may refer to the cases of Thomson, reported in Broun's Sup., 5, 569; and Houston, M. 16,619, as rather assuming than deciding the law in this sense; and to a very important opinion of Lord Moncreiff in the case of Galloway, reported in 1 D. 74; in which, under a clause of warrandice limited to the price paid, he refused to impute the rents drawn prior to eviction to extinguish any part of the obligation.

I am unable, therefore, in any view, to concur with the finding of the Lord Ordinary, that the value at the date of eviction, though less than the price, is the true measure of the seller's obligation under his warrandice. If the question lay between assuming the price as an arbitrary liquidation of the damage, or simply finding the purchaser entitled to recover such loss as he could establish, I should have more difficulty. But the inclination of my opinion is, that warrandice in the contract of sale implies an obligation in the case of eviction to render back the price for which no equivalent was given, whatever farther claims it may confer upon the purchaser.

I do not know, however, that it is necessary for us to decide this abstract point. The circumstances of the case are very special, and were, I think, too little attended to in the debate. When rightly considered, I think they afford a solution of this question quite satisfactorily.

[His Lordship having given the narrative quoted supra, proceeded]—

I am of opinion, in this state of the fact, that the defender is bound, under the warrandice, to take back the subjects on the terms which in that event he will be entitled to demand from the heir-at-law, as a condition of ceding possession; and that on re-conveying the subjects, and the several rights over them, and assigning his rights under the judgment in question, the pursuer is entitled to decree in terms of the conclusions of his summons. The restitution will thus be substantially complete, and the pursuer will be kept, as he is entitled to be, indemnis.