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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell (t/a Campbell Associates) v. Ferguson, Macsween Stewart & Others (a firm) [2003] ScotCS 118 (24 April 2003)
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Cite as: [2003] ScotCS 118
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Campbell (t/a Campbell Associates) v. Ferguson, Macsween Stewart & Others (a firm) [2003] ScotCS 118 (24 April 2003)
- This is a commercial action in which the pursuer sues the defenders, who are a firm of solicitors, for damages in the sum of £1,391,535 in respect of the defenders' alleged breach of contract and fault and negligence. The pursuer's claim relates to a transaction whereby the pursuer was to purchase certain areas of contiguous land on the Isle of Skye, which were in the same ownership of certain trustees. The defenders acted as the pursuer's solicitors in this matter. Two sets of missives were required for the purchase of the ground in question. The land was to be purchased with a view to its development potential.
- The pursuer's complaint is that the defenders, in acting for him, failed to waive, on his behalf, certain suspensive conditions in the missives timeously, which allowed the sellers to withdraw from the bargain to sell the land in question, since the conditions had not been purified.
- A preliminary question arises in the action as to what was the relevant date, in terms of the pursuer's contract with the sellers of the land in question, by which the relevant conditions had to be either waived by him or purified. The pursuer argues that the relevant date was 13 May 1997. The defenders contend that it was 19 September 1997. Both sides were agreed that this question is central to the dispute between them and that it could be determined having regard to the content of certain agreed documents. The pursuer, however, sought a proof before answer on the whole case. The defenders sought a debate on this preliminary question. I acceded to the defenders' request that a debate should be allowed in relation to the preliminary issue.
- The pleadings of the parties and the agreed documents reveal that the defenders, acting for the pursuer, and solicitors acting for the sellers of the land, which in the pleadings is described as the "MacSween ground", were engaged in the transaction for the purchase of the ground from at least 31 October 1994 until 19 March 1997. During that period various letters passed between the defenders, on the one hand, and the sellers' agents, on the other, setting out terms and conditions for the sale of the land in question. Those letters can be seen to contain what, in law, would be regarded as offers and acceptances, counter-offers and acceptances. They are, in the form, which in Scottish conveyancing practice, would be described as missives. As I have said there required to be two separate sets of letters relating to the two contiguous areas of land. The two separate sets of letters bear to be written on the same date. With regard to the question that was discussed before me, at debate, it was agreed by counsel for both parties that regard should be had to the set of missives which comprise No 6/3/1-19 of process. The first letter in that bundle, 6/3/1 bears to be an offer from the defenders, on behalf of the pursuer, to the sellers' agents, Messrs Murray & Co dated 31 October 1994 to purchase the land. Condition 5 of that offer is in the following terms:
- In the event of the purchaser or the purchaser's nominee failing to obtain all the necessary consents for the proposed development of the subjects, these missives shall cease to have effect and neither the purchaser nor the seller shall be liable to the other in any way whatsoever."
- The next relevant document is 6/3/4 of process. It is a letter from the defenders dated 4 March 1996. It is apparent that, in the meantime, the sellers had changed the solicitors who were to act for them in relation to the transaction. The letter is addressed to the sellers' new agents, Messrs Anderson Shaw & Gilbert. The letter refers to "our formal offer dated 31 October 1994 addressed to Murray & Co Solicitors", "the Qualified Acceptance thereof dated 18 January 1995 by Murray & Co ..." and "our further missives dated 19 January 1995 concluding the bargain". the letter went on to state as follows:
- Notwithstanding what that last mentioned letter said in its final words, the parties had not, in fact, reached the end of the road with regard to the terms and conditions on which the subjects were to be sold. On 17 September 1996 the sellers' agents wrote once more to the defenders. That letter, 6/3/8 of process, offered "to amend the terms of the missives concluded between the said Trustees and your client ... dated 31 October 1994, 18 January 1995 and 19 January 1995." The letter dealt with four matters. In the first place it proposed as follows:
- Notwithstanding the final words of the last referred to letter, no steps were apparently taken by either party to implement any bargain relating to the subjects before 17 March 1997. On that date the sellers' agents wrote to the defenders in a letter which is 6/3/11 of process. The letter was in the following terms:
- Having reviewed the contents of the relevant correspondence, it is important in my judgement, not to lose sight of the fact that the conditions, which were not purified, related to the obtaining by the pursuer of consents and his acquisition of contiguous subjects which were apparently required for the appropriate development to take place. It is also of importance not to lose sight of the fact, in my view, that the imposition of the six month period during which these conditions had either to be purified or waived were first sought by the sellers in their agents' letter which is 6/3/2 of process.
- In submitting that the relevant date by which the conditions in questions had to be purified was 19 September 1997, senior counsel for the defenders took me through the terms of the various letters passing between the defenders and the sellers' agents to which I have just referred. His analysis of the contractual position, obtaining as a result, was as follows. While the letters contained certain inconsistencies and infelicities of language, both parties had initially identified, expressly or by implication, that they had a concluded bargain in January 1995. That bargain was, however, amended in November 1996 and was further amended in March 1997. The concluded bargain between the parties fell to be found by reading, together, the letters which are 6/3/1, 6/3/2, 6/3/3, 6/3/8, 6/3/9, 6/3/10, 6/3/11 and 6/3/12 of process. That was consistent with what the pursuer avers to be the contractual position in his pleadings. Senior counsel submitted that, for present purposes, the crucial letter was 6/3/9 of process, which was the reply to 6/3/8 of process. The sellers' agents had apparently realised that a timetable for the purification of the relevant conditions had to be reimposed, since the timetable previously provided for in correspondence had lapsed. That was because the parties had a concluded bargain in January 1995 and the previous agreed period of six months "from the conclusion of missives hereunder" referred to in 6/3/2 of process, would have expired on 18 July 1995. The sellers' agents, accordingly, in 6/3/8 of process, proposed a new six month period to be imposed to run from the date of that letter, that is 17 September 1996. The defenders, however, sought to amend that provision to "six months from the date of conclusion of missives". That amendment was agreed to by the sellers' agents by their letter of 6/3/10 of process. The issue which the Court had to determine was focused on what was meant by the words "conclusion of missives". The parties had not identified the period, by which the relevant conditions had to be purified or waived, by reference to a specific date but by reference to something else, that is "six months from the conclusion of missives". It was the defenders' contention that these words had, in their context, to be read as meaning six months from the end of the exchange of letters which constituted the bargain between the parties or, put another way, six months from a letter which held the bargain as having been concluded between the parties which itself was not followed by a further letter, within that period, seeking to amend or modify the bargain. In Scottish practice, the dynamic nature of entering into a contract for the sale and purchase of heritage by way of letters described as "missives" normally meant that, in practice, certainty as to the conclusion of the parties' bargain was achieved by a letter which expressly stated that the bargain between the parties was to be held to be concluded. The six month period, in the present case, was a period, at the expiry of which, the sellers were entitled to resile from any contract which had been created between the parties. The missives constituting the bargain between the parties was, in the defenders' submission, the entire body of the exchange of letters which, if the matter had proceeded, would have constituted the bargain forming the basis upon which a disposition would be granted. On that approach, while the sellers, by their letter 6/3/10 of process, stated that the bargain was concluded as between the parties, they themselves subsequently sought to revisit the matter, by their letter of 17 March 1997, 6/3/11 of process, by inter alia, imposing two essential conditions into the transaction. These proposed modifications were accepted by the defenders by their letter of 19 March 1997, 6/3/12 of process. In that letter the defenders then held the bargain to be concluded. There was no further letter passing between the parties' representatives which sought to amend, or in any way modify, the terms of the bargain. The bargain was, therefore, concluded by that missive. The "conclusion of missives" did not therefore happen until 19 March 1997 and, consequently, the expiry of the six month period for purification or waiving of the conditions did not occur until 19 September 1997.
- In reply senior counsel for the pursuer submitted that the missives between the parties were "concluded" by virtue of the sellers' agents' letter of 13 November 1996, no 6/3/10 of process. The letters, 6/3/11 and 6/3/12 of process represented, he submitted, an agreed variation of the terms of an existing concluded bargain for the sale of heritage and innovated only upon the terms of that contract in one material respect by imposing an obligation to deliver and record a deed of servitude. Counsel for the pursuer went on to submit that the letters 6/3/1, 6/3/2 and 6/3/3 of process bore to contain a concluded bargain between the parties which, because of the passage of time, required to be "revived" by their letters 6/3/8, 6/3/9 and 6/3/10 of process. Those last mentioned documents had had the effect of "reviving" the agreement and, in particular, had reimposed a six month period for the purification or waiving of the relevant conditions. That period of six months ran from the date of the letter, 6/3/10 of process which had held the bargain between the parties to be concluded. The letter from the sellers' agents, 6/3/11 of process, did not, as it were, "stop the clock running". It simply sought to modify the bargain in one respect which did not bear upon the six month timetable. The modification proposed in 6/3/11 was immediately accepted by the defenders, on behalf of the pursuer, in their letter 6/3/12 of process. This was an agreed modification to an existing bargain. Counsel referred in this connection to Walker: Contracts (2nd Edition) at paragraph 25.1 and to Donlon v Colonial Mutual Group (UK Holdings) Ltd 1998 S.C. 244. For the foregoing reasons counsel for the pursuer contended that the six month period began to run from 13 November 1996.
- Having considered the productions referred to in the discussion before me, and the submissions made in relation thereto by each side, I am satisfied that the defenders' approach to the matter is to be preferred. The picture revealed by the productions referred to was of a transaction which took some two and a half years to finalise. As previously noted, the land in question was to be acquired by the pursuer for its development potential and this was known to the sellers from the outset. The conditions requiring the obtaining of consents such as planning permission and building warrants, together with the condition regarding the acquisition of other lands by the pursuer were suspensive conditions which, in my judgement, by definition, would normally only have a practical role to play when the parties had a complete and concluded agreement regarding the sale of the subjects in question. The purpose of the time limit imposed for the conditions to be fulfilled, or waived, was for the sellers' benefit. It enabled them to resile from the concluded bargain, in the event of the conditions not being fulfilled within the prescribed period of six months. The first question for me to determine is when was the bargain concluded. In this case, in my judgement, the moment when the completed and concluded agreement between the parties came into being was the acceptance by the defenders, in their letter of 19 March 1997, 6/3/12 of process, of the sellers' agents' conditions set out in their letter of 17 March 1997, 6/3/11 of process. The letter of 19 March 1997 held, expressly, that the bargain was to be deemed concluded thereby. No further letter seeking to impose any additional terms or conditions or seeking to delete any existing terms or conditions relating to the sale of the subjects emanated from either side. In the contractual process, in other words, that letter was "the last shot fired", to use an expression borrowed from the law which is applied when there is a clash between two conflicting sets of standard terms and conditions of contract. It was the parties' intention in their use of the words "conclusion of missives", in my judgement, that the six month period should begin to run from the time when the last shot had been fired in the process of setting out the terms and conditions upon which the sale would proceed. In other words, I am of the opinion that, in the context, the words "conclusion of missives" meant conclusion of the bargain constituted by missives While it is true that, in analysing matters in terms of offer and acceptance, over the two and a half year period, when the parties' agents were corresponding about the terms of the sale, it is possible, at various stages, to say, if nothing else had occurred, that there was a concluded contract, ultimately the contract with which the court is concerned is the contract which is to be found embodied in all the relevant communings between the parties which sets out the terms and conditions of their agreement. Those communings, as the sellers' agents in their letters 6/3/13 of process and 6/3/16 of process, themselves recognised, included the letters of 17 March 1997 and 19 March 1997. In a case, like the present, which can involve a good deal of negotiation between the parties as to the terms and conditions upon which they are prepared to contract, the ambulatory nature of the written correspondence setting out the terms and conditions upon which a sale of heritage is to proceed may embrace a whole series of communings setting out offers and acceptances, counter-offers and acceptances of counter-offers. What is ultimately important is, however, to identify when, finally, the parties have reached their concluded agreement. As Professor Bell put it in his Lectures on Conveyancing, 3rd Edition, Volume II, page 696:
- Both sides were in agreement that, in the event that I favoured the defenders' position in relation to the issue which I was asked to decide, I should put the matter out By Order so that further procedure in this case could be discussed. I shall, accordingly, have the matter put out By Order for that purpose.
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OUTER HOUSE, COURT OF SESSION |
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CA93/02
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OPINION OF LORD CLARKE in the cause ALLAN CAMPBELL, trading as CAMPBELL ASSOCIATES Pursuer; against THE FIRM OF FERGUSON, MACSWEEN & STEWART AND OTHERS Defenders:
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Pursuer: Anderson, Q.C.; Brodies W.S.
Defenders: McNeill, Q.C., Smart; Brechin Tindal Oatts
24 April 2003
Introduction
The issue
The relevant factual history
"It is a condition of this offer and the missives to follow hereon that:-
(a) The purchaser obtains to his complete satisfaction and that of his nominee detailed Planning Permission, Building Warrants and all other necessary consents required by the purchaser or his nominee for the proposed development of the subjects and in the event of such Planning Permission being refused or granted subject to unacceptable conditions, the purchaser shall be entitled but not bound to go to Appeal, in which case it is a condition of this offer that such Appeal is successful.
(b) The Local Authority approve the construction and installation of all services necessary for the proposed development of the subjects.
Condition 14 of the offer was in the following terms:
"This offer is conditional on:-
(1) The purchaser concluding a contract with the seller for the acquisition by the purchaser of contiguous subjects lying to the east of the subjects being acquired in terms of this offer, said contiguous subjects extending to Nine Thousand and Sixty-three square metres (9063m2) or thereby; and that on terms satisfactory to the purchaser.
(2) The purchaser concluding a contract with the proprietors thereof for the acquisition by the purchaser of contiguous subjects lying to the east of the subjects being acquired in terms of this offer, said contiguous subjects extending to One Thousand Two Hundred and Seventy-three square metres (1,273 metres2) or thereby; and that on terms satisfactory to the purchaser."
By letter dated 18 January 1995, 6/3/2 of process, the sellers' agents wrote to the defenders saying that they accepted the terms and conditions of the offer of 31 October 1994, but subject to certain other conditions. For present purposes the significant condition which the sellers' agents sought to impose was as follows:
"3. With regard to your conditions 5, 6 and 14, in the event that your clients have not obtained the necessary consents referred to in the said conditions, or carried out the reports referred to therein, or concluded a contract as per your condition 14, within a period of six months from the conclusion of missives hereunder, then our clients shall be free to resile from any contract that has been concluded, and that without penalty" (emphasis added).
The defenders wrote to the sellers' agents by letter dated 19 January 1995, 6/3/3 of process. In that letter they refer to "our offer dated 31 October 1994" and "your Qualified Acceptance thereof dated 18 January 1995". They then stated:
"on behalf of and as instructed by our said client we hereby accept the Qualifications contained in your said Qualified Acceptance of 18 January, 1995 and hold the bargain between our respective clients concluded".
While parties were agreed before me that as a result, as at 19 January 1995, there was a concluded bargain between the pursuer and the sellers, that bargain contained in the letters, which I have just referred to, was never implemented.
"On behalf of and as instructed by our said client "the purchaser" we hereby amend the terms of the foregoing missives as follows:-
(one) Condition 3 of said Qualified Acceptance dated 18 January, 1995 is hereby deleted and conditions 5, 6 and 14 of our said offer of 31 October 1994 are thereby restored.
(two) Condition 15 of our said offer dated 31 October, 1994 shall be amended by adding after the word 'latest' therein the following 'or such other date and on such other conditions' as may be mutually agreed".
The defenders, however, followed that letter by another letter dated 19 April 1996, 6/3/5 of process, addressed to the sellers' solicitors. That letter referred to "our formal offer dated 31 October 1994", "The Qualified Acceptance thereof dated 18 January, 1995", "our further missive dated 19 January, 1995 concluding the bargain" and what is described as "Our further qualifying missive dated 4 Marc,h 1996". The letter then stated:
"On behalf of and as instructed by our said client we hereby amend the aforesaid missives as follows:-
(1) The date of entry shall be no later than six months from the date of conclusion of missives as amended in terms of our said missive dated 4 March, 1996 and in terms hereof.
(2) There shall be added at the end of Condition 14 of our said offer of 31st October, 1994 the following:-
'The purchaser may at his discretion waive the foregoing Condition 14(2)'."
Some further four months elapsed and, then, on 20 July 1996, the sellers' solicitors wrote to the defenders by letter of that date, 6/3/6 of process. In that letter the sellers' solicitors offered "to amend the terms of the missives concluded between the said Trustees and your client Alan (sic) Campbell ... dated 31 October 1994, 18 January 1995 and 19 January 1995". It will be noted that no mention is made therein of the letters of 4 March and 19 March 1996, 6/3/4 of process and 6/3/5 of process. The "amendments" proposed were in two parts. The first was as follows:
"Condition 3 of our clients' qualified acceptance dated 18 January 1995 is hereby deleted as is Condition 6 of your client's Offer of 31 October 1994. With regard to Conditions 5 and 14 of your client's Offer dated 31 October 1994 in the event that these conditions are not both purified within a period of six months from the date of this letter then our clients shall be free to resile from these missives and that without any penalty due to or by either party".
The second matter the letter dealt with was to make it an essential condition that there should be reserved to the sellers an irredeemable right of pedestrian and vehicular access to subjects retained by them. That letter was, in turn, responded to by a letter from the defenders dated 1 August 1996, 6/3/7 of process in which they stated as follows:
"we hereby accept the amendments contained in your amending missive dated 20 July, 1996 amending the further missives described therein dated 31 October 1994, 18 January 1995 and 19 January 1995 in relation to our client's purchase of ALL and WHOLE the subjects at Dunvegan Road, Portree, Isle of Skye, extending to 1,570.2 m2 or thereby and now hold the bargain between our respective clients concluded."
"Condition 3 of our clients' qualified acceptance dated 18 January 1995 is hereby deleted as is Condition 6 of your client's offer of 31 October 1994. With regard to Conditions 5 and 14 of your client's offer dated 31 October 1994 in the event that these conditions are not both purified within a period of six months from the date of this letter then our clients shall be free to resile from these missives and that without any penalty due to or by either party".
It was then proposed in the letter that:
"in the event that the sellers are unable to implement any of the conditions contained in condition 13 of your client's said offer then they, or the sellers, shall be entitled to resile from the bargain without penalty".
The letter then went on to deal more specifically with the right of access which the sellers wished to retain. It lastly provided that the defenders' letter dated 4 March 1996, 6/3/4 of process, "shall be deemed as withdrawn". The defenders responded, by letter dated 8 November 1996, 6/3/9 of process. In that letter they stated that they accepted "the qualifications contained in your formal missive dated 17 September, 1996" but subject to further qualifications which were four in number. The defenders sought, in the first place, to qualify the first condition contained in the letter of 17 September 1996 in the following manner:
"Condition 1 of your said formal missive dated 17 September, 1996 shall be amended (a) by adding between the words 'purified' and 'within' where these occur on line five thereof the words 'or waived by the purchaser' and (b) by the deletion of the words 'this' and 'letter' where these occur in lines five and six respectively and there shall be substituted therefor 'conclusion of missives'."
The defenders' letter, furthermore, proposed that:
"Condition 2 of your said formal missive dated 17 September, 1996 shall be amended by adding between the words 'implement' and 'any of them' where these occur in the first line thereof the words 'or the purchaser declines to waive'."
A further qualification was proposed relating to the route of the access in respect of which the sellers were to be granted a servitude right. Lastly, the letter stated "Our formal missives dated 4 March and 19 April, 1996 shall be deemed to be withdrawn". This letter was responded to by the sellers' agents on 13 November 1996, by their letter of that date, 6/3/10 of process. In that letter they wrote as follows:
"On behalf of and as instructed by our clients, the Trustees of the late D J Macsween, we hereby accept your formal letter dated 8 November 1996 on behalf of your client Allan Campbell, trading as R & A Property Co., 22-24 Glen Street, Edinburgh, following on missives dated 17 September 1996 (in respect of the subjects described therein as extending to 1,570.20 m2) at Dunvegan Road, Portree, and we now hold the bargain between our respective clients as concluded."
"On behalf and as instructed by our clients, THE TRUSTEES OF THE LATE D J MACSWEEN, we hereby modify the missives entered into by our clients and your client, ALLAN CAMPBELL trading as R & A PROPERTY COMPANY, 22-24 Glen Street, Edinburgh following on missives dated 30 November, 8 November, both 1996 and other dates relating to the subjects described therein as extending to 1,570.20 metres squared at Dunvegan Road, Portree, as follows:
(a) It is an essential condition of the missives that there shall be delivered to our clients at date of entry a validly executed Deed of Servitude in terms of the draft adjusted between us.
(b) It is an essential condition of these missives that the sellers shall forward to the Registers of Scotland within ten days of the date of entry the Disposition, or Dispositions, conveying to him the subjects over which the Deed of Servitude is being granted and, if required to do so by the sellers, will produce evidence that the said deeds have been so submitted.
(c) the sellers shall, at the date of entry, deliver to the purchaser a validly executed Disposition conveying the superiority of the above subjects in terms of the Disposition adjusted between us".
It will be noted that the letter refers to missives dated 30 November, 8 November both 1996. It was agreed by both sides that there was in fact no missive of 30 November 1996 and that the reference should probably have been to 17 September 1996. I pause to comment that this mistake was not picked up by the defenders in their reply to this letter and the mistake and the defenders' omission to pick it up are, in my judgement, symptomatic of a general slackness which arose in the drafting of the correspondence in this case. The defenders' reply to the last mentioned letter was dated 19 March 1997 which is 6/3/12 of process. It was in the following terms:
"We refer to your formal offer dated 17 March 1997 on behalf of your clients, the Trustees of the late D J MacSween to modify the concluded missives between your said clients and our client, Allan Campbell, trading as R & A Property Company in respect of subjects at Dunvegan Road, Portree, Isle of Skye
On behalf of and as instructed by our said client we accept the modifications contained in your said offer and now hold the bargain concluded as modified by your said offer dated as aforesaid".
That is the last letter in the correspondence which bears to deal with what were to be the agreed terms of any bargain between the parties. On 15 May 1997, the sellers' agents wrote to the defenders in a letter, which is 6/3/13 of process, in the following terms:
"On behalf of an as instructed by our clients RONALD MACSWEEN, MRS CHRISTINA MACLEAN MACSWEEN AND DONALD JOHN MACSWEEN, the Trustees of the late D J MacSween, we hereby resile and withdraw from the missives entered into between our clients and your client, Allan Campbell t/a R & A Property Co, 22-24 Glen Street, Edinburgh, the said missives dated 31 October 1994, 18 January 1995, 19 January 1995, 4 March 1996, 10 July 1996, 1 August 1996, 17 September 1996, 8 November 1996, 13 November 1996, 17 March 1997 and 19 March 1997 relating to your client's purchase of ALL and WHOLE the subjects at Dunvegan Road, Portree, Isle of Skye extending to 1,570.20 metres2 or thereby due to your client's failure to intimate purification of conditions 5 and 14 of your client's offer dated 31 October 1994 and we now treat the bargain between our clients as at an end".
I pause to note that the sellers' agents apparently considered that the missives from which they were resiling included the missives of 17 March 1997 and 19 March 1997. Notwithstanding the terms of that letter, it appears that further correspondence took place between the defenders and the sellers' agents and in a letter, which is 6/3/16 of process, the sellers' agents wrote to the defenders, by recorded delivery, on 2 December 1997 in exactly the same terms as their letter of 15 May 1997, 6/3/13 of process, save for the addition at the beginning of the new letter of the words "For the avoidance of doubt".
The parties' submissions
Decision
"The missives must also import a finished obligation on both sides, without any reservation or condition on the one side not assented to on the other. If any stipulation is made by one and not agreed to by the other, there is locus poenitentiae, and the intended transaction may be broken off by either party, however far it may have been adjusted as to other particulars".
Applying that passage to the present case, the sellers' agents by their letter of 17 March 1997, 6/3/11 of process, sought to introduce two new stipulations described as "essential conditions" into the contract which, in terms of their own letter of 13 November 1996, 6/3/10 of process, they had held to be concluded. What the position of the pursuer would have been had he refused to agree to these conditions is not a matter that I need decide. The fact is that because of that letter the transaction was re-opened, not for the first time, and was only finally concluded by the acceptance of the conditions by the defenders' letter of 19 March 1997, 6/3/12 of process. That was what produced, in this case, the final agreement to which the present litigation relates. While the correspondence, in the present case, used the expression "conclusion of missives", I am of the opinion, as already indicated, that what was meant by the parties by their use of that expression was, as counsel for the defenders submitted, conclusion of the exchange of correspondence which constituted the final bargain between the parties. A missive is merely a letter setting out the terms and conditions upon which parties are prepared to contract for the sale and purchase of heritage. Such terms and conditions must, in Scots law, appear in writing if the contract for the sale of heritage is to be enforceable. Suspensive conditions which suspend the performance of such a transaction, and on whose non-performance one party may resile, normally only have a legal and practical effect when the transaction in question has been finalised and has been embodied in a contract which is conclusive of the entire agreement between the parties. The embodiment of the entire agreement is to be found in the letters, or missives, from which the entire terms and conditions of the agreement can be read. Accordingly, in the present case, when the parties referred to six months from the conclusion of missives, their intention was to provide for suspensive conditions to operate for a period of six months from the conclusion of their bargain. It follows therefore that, in my judgement, the relevant date by which the conditions either had to be fulfilled or waived was 19 September 1997.