Scottish Court of Session Decisions

The cause called before the First Division, comprising the Lord President (Rodger), Lord Kirkwood and Lord Caplan for a hearing on the summar roll.

At advising, on 2 April 1998—

LORD PRESIDENT (RODGER)—In September 1988 Mrs Isobel Shilliday, the pursuer, began to associate with Mr William Smith, the defender, and about July of the following year they started to live together in a house known as Lauriston and the parties discussed getting married. In about August 1990 they became engaged, after which they continued to live together as man and wife in the pursuer's cottage. The pursuer was, however, aware that her son was due to move into the cottage in the course of 1991.

When the defender bought Lauriston it was in a state of disrepair. From about the beginning of 1990 various works were carried out: in particular, doors, wood fittings and skirting boards were replaced; central heating was installed; the bathroom was fitted out and the window replaced; a conservatory was added and a garden wall was put up. In September 1991 the parties moved to Lauriston, where they continued to live together. The work on the house went on and was almost complete by Christmas 1992, but unfortunately by that time the defender had become aggressive towards the pursuer and one evening she came home from work to find that he had locked her out of the house. As a result she was homeless for six months.

The dispute between the parties concerns payments by the pursuer in connection with the works on Lauriston. Using funds from a legacy, she made what amounted to a substantial contribution to the repair work. In some cases she made payments to suppliers of materials while in others she paid those who worked on the house. All told, for materials and work she paid £7,018.38 to various people, including her son. The pursuer also paid sums totalling £1,880 to the defender, who then used them to pay for materials and work. In addition she bought a number of items, worth in total £756.33, which she put into the house and garden and which she had to leave behind when she was put out of the house.

The pursuer sued the defender for recovery of her total expenditure of £9,654.71 and after a proof the sheriff pronounced decree for that sum. The sheriff principal having dismissed his appeal, the defender appealed to this court. Before us his counsel did not dispute the quantification of any of the elements in the pursuer's claim, but argued, rather, that he should not have been held liable at all.

Some indication of the nature of the pursuer's case is to be found in her first plea-in-law: ‘The pursuer having paid the monies condescended upon to or for the benefit of the defender and having installed the various items condescended upon at the defender's said dwellinghouse at Lauriston, all on condition that the defender and she would get married and the said condition having failed to materialise, the defender should make payment as craved.’

Although, quite properly, this is not spelled out in her plea-in-law, at the most general level the pursuer's case depends on the defender's alleged unjust enrichment at her expense. Discussions of unjust enrichment are bedevilled by language which is often almost impenetrable. Anyone who tries to glimpse the underlying realities must start from the work of Professor Peter Birks, the Regius Professor of Civil Law at Oxford, in particular his book An Introduction to the Law of Restitution (paperback edition, 1989) and his two ground-breaking articles on Scots law, ‘Restitution: A View of the Scots Law’ (1985) 38 Current Legal Problems 67 and ‘Six Questions in Search of a Subject—Unjust Enrichment in a Crisis of Identity’, 1985 JR 227. Professor Birks (Introduction, pp 9–27) and many others have pondered what is meant by unjust enrichment. While recognising that it may well not cover all cases, for present purposes I am content to adopt the brief explanation which Lord Cullen gave in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd at pp 348–349: a person may be said to be unjustly enriched at another's expense when he has obtained a benefit from the other's actings or expenditure, without there being a legal ground which would justify him in retaining that benefit. The significance of one person being unjustly enriched at the expense of another is that in general terms it constitutes an event which triggers a right in that other person to have the enrichment reversed.

As the law has developed, it has identified various situations where persons are to be regarded as having been unjustly enriched at another's expense and where the other person may accordingly seek to have the enrichment reversed. The authorities show that some of these situations fall into recognisable groups or categories. Since these situations correspond, if only somewhat loosely, to situations where remedies were granted in Roman law, in referring to the relevant categories our law tends to use the terminology which is found in the Digest and Code. The terms include condictio indebiti; condictio causa data, causa non secuta and—to a lesser extent—condictio sine causa. It is unnecessary in this case to examine all the groups and it is sufficient to note that the term condictio causa data, causa non secuta covers situations where A is enriched because B has paid him money or transferred property to him in the expectation of receiving a consideration from A, but A does not provide that consideration. The relevant situations in this group also include cases where B paid the money or transferred the property to A on a particular basis which fails to materialise—for example, in contemplation of a marriage which does not take place. The pursuer in this action contends that the defender should be regarded as having been unjustly enriched in a manner which falls within this general category and that his enrichment should therefore be reversed.

Once he has satisfied himself that he has a relevant case, anyone contemplating bringing an action must then determine how the court is to reverse the defender's enrichment if it decides in the pursuer's favour. This will depend on the particular circumstances. The person framing the pleadings must consider how the defender's enrichment has come about and then search among the usual range of remedies to find a remedy or combination of remedies which will achieve his purpose of having that enrichment reversed.

Elementary examples make this clear. For instance, if A has been unjustly enriched because he has received a sum of money from B, the enrichment can be reversed by ordering A to repay the money to B. B's remedy will be repetition of the sum of money from A. On the other hand, if the unjust enrichment arises out of the transfer of moveable property, the enrichment can be reversed by ordering A to transfer the property back to B. An action of restitution of the property will be appropriate. If A has been unjustly enriched by the transfer from B to him of title in heritable property, then reduction of A's title will be required. The remedy will be an action of reduction. If A is unjustly enriched by having had the benefit of B's services, the enrichment can be reversed by ordering A to pay B a sum representing the value of the benefit which A has enjoyed. An action of recompense will be appropriate. So repetition, restitution, reduction and recompense are simply examples of remedies which the courts grant to reverse an unjust enrichment, depending on the way in which the particular enrichment has arisen: see Morgan Guaranty Trust Company of New York v Lothian Regional Council, per Lord President Hope at p 155B–D. Often, of course, the situation will be complex and the pursuer will require a correspondingly sophisticated set of remedies to reverse the enrichment.

It follows that, despite what was said by both counsel in argument, in Scots law the term condictio causa data, causa non secuta is used, not to describe a remedy, but to describe one particular group of situations in which the law may provide a remedy because one party is enriched at the expense of the other. A pursuer whose case falls into that group has a ground of action under our law. That being so, although both parties were agreed that the pursuer's ground of action in the present case fell under the heading of the condictio causa data, it is necessary to identify the remedy which the pursuer seeks. While her crave is simply for payment of the sum of £9,654.71, it really breaks down into two distinct elements.

The larger part of the pursuer's claim is based on the fact that, in contemplation of the parties' marriage, she paid for repairs and for materials used in repairs to the defender's house and that she installed various items in the house and garden. The defender has benefited from these materials, repairs and items. The pursuer says that the value of the benefit which she conferred on the defender is the cost of the various materials, repairs and items. That would not necessarily be so in all cases, but no point arises here since, as I have noted, the defender does not dispute that the cost to the pursuer is the true measure of the value of the benefit to him. The pursuer asks the court to order the defender to pay her the cost of the various materials, repairs and items for which she paid and which he enjoys. In this aspect of her case the pursuer is therefore seeking payment of a sum of money which will reverse the defender's enrichment by transferring from him to her a sum which represents the value of the benefit enjoyed by him as a result of the outlay which she incurred.

The remainder of the pursuer's claim is different. It is based on the fact that in contemplation of the parties' marriage she paid £1,880 to the defender, which he used to pay for materials and for work on his house. The pursuer is asking the court to reverse the defender's enrichment by ordering him to repay that sum to her. This part of her claim is therefore one for repetition of the money which she paid to the defender.

Although the two aspects of the pursuer's claim can be distinguished in this way, none the less for each of them she relies on the same ground of action, which falls under the rubric of the condictio causa data. On the one hand the pursuer says that she paid money to the defender in contemplation of marriage, on the other she says that she expended money on his house in various ways in contemplation of marriage. Although the usual situations discussed in connection with the condictio causa data are where money is paid or property transferred on a particular basis, in my view there is no relevant difference between the two aspects of the pursuer's claim. If she is entitled to recover money paid to the defender in contemplation of a marriage which never took place, in principle she must equally be entitled to recompense for the materials and work she paid for on the same basis.

In summary therefore, the pursuer seeks two remedies, recompense for the benefit, valued at £7,774.71, which the defender enjoys as a result of the pursuer's expenditure on various materials, repairs and items, and repetition of the sum of £1,880 which she paid to him. The underlying basis upon which the pursuer asks for the two remedies is, however, the same: she paid for the various materials, repairs and items, and she paid him the money, ‘on condition’—as it is put in the plea-in-law—that the parties would marry; that did not happen, and therefore it is unjust that he should enjoy the benefits for which she paid or keep the money which she paid to him. Although these distinct aspects of the pursuer's claim are not spelled out in her pleadings, counsel for the pursuer adopted that analysis and counsel for the defender made no submission to the contrary.

I turn to the arguments advanced by the defender at the hearing of the appeal. The crucial finding in fact upon which the sheriff based his decision was that ‘the pursuer, who had benefited from a legacy, made a substantial contribution towards the repair work carried out on the property in contemplation of her prospective marriage to the defender and her relationship with him’. This led him to find in law that: ‘The pursuer has paid the monies and installed the items narrated…on the condition that she and the defender would get married; the condition having failed to materialise, she is entitled to payment from the defender.’

This finding reflects the terms of the pursuer's first plea-in-law. Counsel for the appellant argued that since, on the findings in fact, the pursuer had made her contribution ‘in contemplationof her prospective marriage’ rather than ‘on the condition that she and the defender would get married’ she had not established the basis upon which she would be entitled to seek repetition for recompense under the heading of the condictio causa data. He said that, before the sheriff could grant decree, he would have required to find specifically that the pursuer's contribution was conditional on the parties getting married.

In my view counsel stated the position too narrowly. For the pursuer counsel was quick to acknowledge that the phrase ‘on the condition that’ in the pursuer's first plea-in-law was not particularly apt. It might tend to suggest that her claim was based on some kind of contract between the parties. He submitted that the phrase ‘in contemplation of’ used by the sheriff had been more apt and he referred to Stair, Institutions I vii 7: ‘The duty of restitution extendeth to those things, quae cadunt in non causam, which coming warrantably to our hands, and without any paction of restitution, yet if the cause cease by which they become ours, there superveneth the obligation of restitution of them; whence are the conditions in law, sine causa and causa data, causa non secuta, which have this natural ground, and of which there are innumerable instances, as all things that become in the possession of either party in contemplation of marriage, the marriage, which is the cause, failing to be accomplished, the interest of either party ceaseth, and either must restore.’

The passage concerns two situations. The first (described by Stair as sine causa) is where property comes into someone's hands on a particular basis which then ceases to exist. The second (described as ‘causa data, causa non secuta’) is where property comes into the person's hands on the basis of some future event which fails to materialise. In either case the property must be restored. The important thing to notice is that in both cases the duty to restore is said to be based not on agreement (paction), but on a natural ground, ie, it is a duty imposed by law. This is a useful reminder that, even if in Cantiere San Rocco SA v Clyde Shipbuilding and Engineering Co Ltd [1924] AC 226 the House of Lords included certain situations relating to the non-performance of a contract under the heading of the condictio causa data, the basis of liability to reverse unjust enrichment is not contractual but rests on this separate duty imposed by law.

Counsel was therefore correct to argue that there was no need for the pursuer to point to any kind of contract between the parties under which the pursuer paid the various sums on condition that they married. Nor need the pursuer prove that her expenditure was conditional in any technical sense. The passage from Stair shows that it would be a relevant ground for saying that the defender was unjustly enriched if the pursuer had expended the sums ‘in contemplation of’ the parties' marriage and the marriage had failed to materialise. That is indeed what the sheriff has held. The defender knew that the pursuer was expending money on his house, which the parties had agreed would be their matrimonial home, and the sheriff has found that all that she did was done in contemplation of the parties' marriage. In these circumstances I reject counsel for the appellant's first argument as being inconsistent with Stair's statement of the law.

Counsel submitted that, in any event, the pursuer's case must fail because her actings were done for her own benefit or for her own purposes (in suo). The pursuer was aware that her son would be moving into her cottage. She would be moving into the defender's house. She did move in and lived there from about September 1991 until the end of 1992. It was anticipated that the house would be the parties' matrimonial home. The defender agreed to transfer the title of the house into joint names when the pursuer had enough money to pay the conveyancing fees. He changed his will so that the pursuer, rather than his children, would inherit the house. In that situation the pursuer had really spent money on improving the defender's house in her own interest and, that being so, she was not entitled to recover her expenditure from the defender. Counsel referred to Fernie v Robertson;Buchanan v Stewart; Rankin v Wither;and Newton v Newton.

For present purposes the essential point which these cases vouch is that, if a person spends money or otherwise acts in his own interest (in suo), but his expenditure or actings incidentally benefit someone else, the first person cannot seek any payment from the other on the basis that his expenditure or actings have resulted in a benefit to that other person. The cases denying recovery involve situations where the only alleged basis for the pursuer's claim for recompense is that he has expended money or done work from which the defender has derived an incidental benefit. The law rejects the claim: a defender is not regarded as being unjustly enriched just because he enjoys an incidental benefit from expenditure or work which a pursuer has made or carried out for his own purposes.

The pursuer's case is wholly different. She does not argue that the defender should pay her the sum in the crave simply because she paid money to him and spent money on his house from which she derived benefit. The pursuer points, rather, to a particular factor which makes the defender's enrichment unjust. Where such a relevant factor exists, that factor, rather than the mere fact of expenditure by the pursuer and benefit to the defender, constitutes the ground of action. So, in Newton the pursuer was allowed to recover from his former wife money which he had spent on a house which actually belonged to her, but which he had mistakenly thought belonged to him. The critical factor in the pursuer's ground of action was his mistake about the title: he recovered because his wife was benefiting from sums which he would not have spent if he had been aware of the true position. In the present case also the pursuer does not simply rely on the fact that she paid money to the defender and spent money on the defender's property from which he has benefited. On the contrary, the critical factor in her ground of action is that she acted as she did in contemplation of the parties' marriage, which did not take place. That is why she seeks to be repaid the money which she gave him and to be recompensed for her expenditure. The facts bear out her claim. In evidence which the sheriff accepted as truthful and reliable, the pursuer said that she would not have done what she did if the parties had not been engaged, with the intention of being married. The sheriff's findings leave no room for doubt that this was indeed the basis upon which the pursuer paid money to the defender and expended money on his house. That being so, the cases relied on by counsel afford no basis for rejecting the pursuer's claim.

For these reasons, I am satisfied that the decisions reached by the sheriff and the sheriff principal were correct and I move your Lordships to refuse the appeal.

LORD KIRKWOOD —Your Lordship in the chair has set out fully the facts of the case and the submissions which were made on behalf of each party.

The defender did not seek to challenge any of the findings in fact made by the sheriff so that the factual situation was not in dispute. Put shortly, the parties began to cohabit in the pursuer's cottage in Bridge of Earn in June or July 1989. In September 1989 the defender purchased the property known as Lauriston, Main Street, Balbeggie, although at that time it was not habitable as there were ceilings down, the floors required repair and there was no bathroom. After the defender purchased Lauriston the parties discussed marriage. In July and August 1990 they were on holiday in Jersey and while there they became formally engaged. Thereafter they continued to live as man and wife. During 1990,1991 and 1992 a great deal of work was carried out at Lauriston and the work was almost complete by Christmas 1992. The parties moved into Lauriston in September 1991 and they continued to cohabit there until the end of 1992 by which time the defender had become aggressive towards the pursuer. When she returned home from work one evening she was locked out of the house and she remained homeless for six months. Accordingly, the sheriff found it established that they lived together from June or July 1989 until the end of 1992 and that they became engaged in July or August 1990 and he also made a finding that they agreed that Lauriston would be their matrimonial home. The sheriff went on to find it proved that the pursuer, who had benefited from a legacy, had made a substantial contribution towards the repair work carried out at Lauriston. In particular, she paid a total of £7,018.38 to various persons for materials used and work carried out. In addition, she paid sums totalling £1,880 to the defender who used the money to pay for materials and work. She also purchased a number of items, worth £756.33, which were put into the house and garden and which she had to leave behind when she was put out of the house. Accordingly, the total sum which the pursuer expended on Lauriston was £9,654.71. The sheriff also found that the payments made by the pursuer in relation to the property were made in contemplation of her prospective marriage to the defender and her relationship with him. Further, finding in fact 11 is to the effect that the defender had been enriched to the extent of the payments specified in findings 8 and 9, namely, the total figure of £9,654.71. As I have said, none of the findings in fact was challenged by counsel for the defender in the course of the appeal hearing. The sheriff also observed that it was clear from the pursuer's evidence that had she not become engaged with the intention of marrying, she would not have contributed anything to the house. In the foregoing circumstances it was not in dispute that the defender had been enriched to the extent of the total payments made by the pursuer and that the payments had been made by her in contemplation of her marriage to the defender which, in the event, had not materialised, the relationship having come to an end and there now being no prospect of marriage.

The sheriff made a finding in law in the following terms: ‘The pursuer has paid the monies and installed the items narrated in Findings 8 and 9 on the condition that she and the defender would get married; the condition having failed to materialise she is entitled to payment from the defender.’

This finding in law was presumably based on the pursuer's first plea in law which states that the pursuer having paid monies to or for the benefit of the defender, and having installed various items, ‘all on condition that the defender and she would get married and the said condition having failed to materialise the defender should make payment as craved’. In my opinion, however, the word ‘condition’ is not particularly appropriate in a claim of this nature as it might be thought to imply that there was some form of contract or agreement between the parties. The remedies sought by the pursuer are not dependent on the existence of any agreement between her and the defender and I am content to proceed on the basis of the sheriff's finding that the payments which the pursuer made were in contemplation of her marriage to the defender which failed to materialise.

In the foregoing circumstances the question which arises for our determination is whether or not the sheriff was entitled to grant decree in favour of the pursuer for the sum of £9,654.71, being the total amount which she expended on Lauriston and by which the defender was admittedly enriched.

The pursuer's claim is based on the common law principle of unjust enrichment as expressed in the condictio causa data causa non secuta. Lord Stair's Institutions, Book I, Title VII, para 7 states as follows: ‘The duty of restitution extendeth to those things, quae cadunt in non causam, which coming warrantably to our hands and without any paction of restitution, yet if the cause cease by which they become ours, there superveneth the obligation of restitution of them. Whence are the condictions in law, sine causa and causa data causa non secuta, which have this natural ground; and of which there are innumerable instances. As all things that become in the possession of either party in contemplation of marriage, the marriage (which is the cause) failing to be accomplished, the interest of either party ceaseth, and either must restore.’

While the pursuer's case is that the defender has been unjustly enriched at her expense and she founds on the condictio causa data causa non secuta, it is, in my opinion, clear that, with a view to having the enrichment reversed, she is seeking two separate remedies, namely, recompense and repetition, both remedies being sought on the basis of the principle of unjust enrichment. In relation to the benefit which the defender has enjoyed in consequence of her expenditure on various materials, items and work carried out, totalling £7,774.71, her claim is based on recompense and in relation to the total sum of £1,880 which she paid to the defender, her claim is based on repetition. As I have said, it was not in dispute that the defender had been enriched to the extent of £9,654.71.

With regard to the general issue of unjust enrichment and the condictio causa data causa non secuta I respectfully agree with the observations made by your Lordship in the chair. Counsel for the pursuer submitted that, on the basis of the findings in fact made by the sheriff, it has been established that the defender has been unjustly enriched at the expense of the pursuer and that she is entitled to decree for the sum sued for. Counsel for the defender had to accept that the payments made by the pursuer were in contemplation of her marriage to the defender and that the defender had been enriched thereby but he submitted that in the particular circumstances of this case there had not been unjust enrichment. The pursuer was not entitled to recover her expenditure as she had been acting in suo, the payments which she had made having been for her own benefit. Thus, it was said that she knew that her son would be moving into her cottage in 1991 and that she therefore would be moving into the defender's house. In this connection, however, it should be noted that there is no finding to the effect that the pursuer had come under any obligation to move out of her own cottage. She did, in fact, move into Lauriston and live there from about September 1991 until the end of 1992. While she was living there she benefited from the improvements which had been carried out. Further, the defender had intended to transfer the title of the house into joint names when the pursuer had the necessary funds to meet the conveyancing costs. The defender had also made a will in March 1992 bequeathing Lauriston and two-thirds of the residue of his estate to the pursuer in order to protect her position in relation to that of his daughters by a previous marriage. In these circumstances counsel for the defender submitted, under reference to Fernie v Robertson;Buchanan v Stewart; Rankin v Witherand Newton v Newton, that the sums which the pursuer had expended on the house had been expended for her own benefit or for her own purposes and accordingly she was not entitled to recover these sums from the defender. In my opinion, however, this argument is misconceived. The pursuer's case is not based simply on the premise that she expended money on improvements to the defender's house and he benefited thereby. Her case is that the expenditure was made by her in contemplation of her marriage to the defender, that the marriage did not materialise and that in the circumstances the defender was unjustly enriched by the payments which she had made. The sheriff found that the payments were made by her in contemplation of marriage and he accepted her evidence that had she not intended to marry the defender she would not have contributed anything to the house. There is no doubt that the relationship came to an end when the pursuer was put out of the house. While it is possible to point to certain benefits which the pursuer received in consequence of the payments which she made, I have no doubt that, in the particular circumstances of this case, these benefits were merely incidental to her main purpose which was to improve Lauriston in contemplation of her marriage to the defender, the parties having agreed that Lauriston would be their matrimonial home. I am therefore of the opinion that the pursuer has established that the defender was unjustly enriched by the payments which she made and that the fact that the pursuer received certain incidental benefits from the expenditure which she made does not disentitle her from claiming repayment on the basis of the condictio causa data causa non secuta.

For the foregoing reasons, and the reasons more fully set out by your Lordship in the chair, I agree that the appeal should be refused.

LORD CAPLAN —I find myself in complete agreement with the opinion of your Lordship in the chair. The grounds of action which arise in this area of the law derive from unjust enrichment. The governing equitable principle is that a party ought not to be permitted to remain enriched in respect of a benefit in property or money which has he has no legal rights to retain against the party from whom it derived. There are many situations where the law has confirmed that unjust enrichment can arise and there has been a tendency to categorise them. However, this process should not deflect from the underlying equitable foundation of claims based on such categories. What makes it fair and reasonable that recompense, restitution or repetition should be made to the party who originated the enriching benefit is that it would be unjust that a party should be enriched at the expense of another when in the circumstances no such enrichment was intended. No question of recompense, restitution or repetition can arise, however, if the intention of the person who was the source of the benefit was to gain some personal material advantage and any benefit enjoyed by another was purely incidental to this. This is because the law does not regard it as unjust that a person be enriched in this way. The simple equitable formulation of the rules arising from unjust enrichment would perhaps be: ‘Is it right that a person should be entitled to retain a valuable benefit in circumstances where the person who conferred it had no intention that he should keep it?’ The need to regard the equitable basis of a right to recompense as the paramount consideration rather than getting entrapped in the process of labelling was recognised by both Lord President Hope and Lord Clyde in Morgan Guaranty Trust Company of New York v Lothian Regional Council (at pp 155 and 169 respectively).

In relation to the present case there is authority going back to Stair, Institutions, I, 7, 7 to the following effect: ‘[A]s all things that become in the possession of either party in contemplation of marriage, the marriage, which is the cause, failing to be accomplished, the interest of either party ceaseth, and either must restore.’ Accordingly, when the defender's counsel contends, as the first branch of the appeal, that the sheriff was not entitled to conclude that the investment by the pursuer in the defender's property had not been shown to have had a ‘condition’ attached that it was dependent on the parties marrying, this represents a misunderstanding of the position as set out by Stair. ‘Contemplation of marriage’ represents the basis for the transfer of value to the defender (either by payment directly or through application of money for his benefit). ‘Conditions’ tends to suggest that the transaction between the parties had been contract and this is not what it was. I do not think, in his interlocutor, the sheriff uses the words ‘condition’ in that formal sense. The defender had promised to marry the pursuer and to prepare for that eventuality she had applied her funds to enhance what she supposed was to become the matrimonial home. The sheriff's finding to that effect was not challenged. Thus the defender received funds, or the benefit of funds which, in the circumstances which thereafter arose, he had no warrant to retain. It was not challenged that the amount sued for represents the total sum by which the defender is lucratus at the pursuer's expense.

The second branch of the appeal was based on the contention that the facts of the case show that the expenditure of money by the pursuer was essentially, or in any event partially, for her own benefit and that since she had been acting in re sua she could not claim recovery from the defender of the value of any incidental benefit he may have received. The problem with this submission is that it does not accord with the facts which the sheriff found proved. The sheriff has found that the reason why the pursuer expended a large portion of her capital in order to develop the house then in the name of the defender was not because she was seeking lodgings in his house but because she was expecting to marry him. She was prepared to employ her capital to enhance what she expected to become the matrimonial home. It was the expectation that the house would be her married home, which she and the defender would share as man and wife, which was the sine qua non of her decision to apply her capital as she did. In the note attached to his interlocutor of 14 June 1996 the sheriff found the pursuer to be a credible and reliable witness. He observed that ‘it was clear in her evidence that, had she not become engaged with the intention of marrying, she would not have contributed anything to the house’. Thus, to suggest that the reality was that she was contributing to the house for no other reason than to provide herself with lodgings is to overlook the basis on which she acted and is simply not consistent with the factual findings of the court. Therefore, the second branch of the defender's appeal is also without merit.

In my view the appeal should be refused.