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ELIZABETH ANNE SMITH v. ALEXANDER SHEWAN STUART [2009] ScotSC 72 (23 February 2009)
A1927/01.
SHERIFEDOM OF GRAMPIAN HIGHLAND AND
Interlocutor
of
Sheriff
Douglas J Cusine
in causa
ELIZABETH ANNE SMITH, The Cottage, Denhead,
Pursuer
against
ALEXANDER SHEWAN STUART,
Defender.
Act: Bovey Q.C.
Alt: McCall, Advocate
ABERDEEN, 23 February 2009.
The sheriff having heard counsel in
debate, Repels the Pursuer's 4th and 5th pleas-in-law and
Sustains the 1st, 2nd and 3rd pleas-in-law for the Defender in respect of
the Pursuer's 2nd 3rd 4th, 5th and 6th Craves and Dismisses the
action; Certifies the Debate as suitable
for the employment of junior counsel; Finds the Pursuer liable to the Defender
in the expenses of the action; Allows the Defender to give in an account of
these and remits the same, when lodged, to the Auditor of Court to tax and to
report.
NOTE
On appeal from my original interlocutor
dated
The Pursuer's original case as set out
in Craves 1 and 2 still remains, but she has added new Craves 3 and 4. Craves 5
and 6 are original Craves which have been re-numbered.
The Defender has a Supplementary Rule
22 Note (No. 20 of Process) on which a further debate took place on
Background
The background, which is not in
dispute, is set out in Article 3 of Condescendence, and Answer 3. The Pursuer
has raised an action for declarator that the Defender gave an Undertaking to
the Pursuer (his sister) that he would enter into a Minute of Agreement which
relates to the sale of land in Potterton. The Pursuer seeks to have the Defender
ordained to enter into the said Minute of Agreement.
In terms of the new Craves, the Pursuer
seeks declarator that the Defender is bound to implement paragraphs 1, 2 and 3
of the Undertaking, the terms of which are set out below, and to have the Defender
ordained to implement these paragraphs.
The Undertaking is set out in Answer 3
of the Amended Record (No. 19 of Process) at page 10. It is in the following
terms:-
"I, ALEXANDER SHEWAN STUART, hereby
confirm that, I will enter into a formal Minute of Agreement with my sister, ELIZABETH
ANNE SMITH, Glenloye, Ardo, Whitecairns, Aberdeen to the following effect:-
I] In the event of the sale of the land
adjacent to the Stead Inn, Denhead, Potterton for agricultural or development
purposes, half of the sale proceeds of the said land will fall to be paid to my
sister, the said Elizabeth Anne Smith, and
2] In the event of the sale of the said
land for agricultural purposes, I will effect the sale on the basis that if the
purchaser from me were to sell the said land for development purposes, the
increase in the value of the said land over agricultural value because of the
said sale for development purposes will be paid equally to both myself and my
sister, Elizabeth Anne Smith.
3] In the event of the sale of the said
land for agricultural purposes and that I do not wish to retain any interest in
the future development of the property I will effect the sale on the basis that
if the purchaser from me (or any future purchaser thereafter) were to sell the
said land for development purposes, one-half of the increase in the value of
the said land over agricultural value because of the said sale for development
purposes will be paid to my sister, the said Elizabeth Anne Smith.
Yours faithfully".
At the original debate, there was no
dispute between the parties that a unilateral promise or undertaking is binding
in Scots Law. In support of that proposition, at the original debate, the Defender
cited two cases, Macfarlane v Johnston
(1864) 2 M 1210 per Lord Neaves at 1214 and Morton's
Trustees v The Aged Christian Friend Society of Scotland (1899) 2 F 82 per
Lord Kinnear at 85. It was accepted that this kind of promise, i.e. the
Undertaking, would have been enforceable at the time when it was given.
It was accepted also that the Undertaking
would have prescribed under the Prescription & Limitation (
The Present Debate.
Submissions for the Defender.
Counsel for the Defender accepted that
no Minute of Agreement has been entered into, but submitted that the obligation
in the Undertaking has prescribed and he referred to section 6 and Schedule I,
of the 1973 Act.
It was said that it is clear from
Article 4 that the Pursuer accepts the Defender's construction of the
Undertaking, namely that the Defender undertook to enter into a Minute of
Agreement with his sister, the Pursuer, and it is admitted in Answer 5 that he
has not done so.
Article 6 sets out the Pursuer's
additional position. It was submitted that the Pursuer's position must be that
the obligations referred to in Craves 1 and 2, as well as those referred to in
Craves 3 and 4 are live, in that both arise from the Undertaking. It was
submitted that it is not open to the Pursuer to take that approach.
Craves 1 and 2.
It was submitted that the 5-year
prescription applies to the Undertaking, that more than 5 years has elapsed,
and so the Undertaking is unenforceable. The Pursuer's response is that the
20-year prescription applies. Counsel for the Defender adopted the position as
set out in my original interlocutor and invited me not to depart from the decision
I took at that point.
Section 6 of the 1973 Act provides that
if an obligation to which the section applies has subsisted for a continuous
period of 5 years without any relevant claim having been made in relation to
it, the obligation will be extinguished.
Schedule I, para. I sets out the
obligations covered by section 6 and para. 2 lists the obligations which are
subject to the 20-year prescription or are imprescriptible. Schedule 1, para.
1(g) applies to promises. It was submitted that the Undertaking was a promise,
and so unless this promise is an "obligation relating to land" within the
meaning of para. 2(e) of schedule I of the 1973 Act, it would have prescribed
after 5 years.
It was accepted that the 1973 Act does
not define an "obligation relating to land," except to say that it includes an
"obligation to recognise a servitude", something which is not a feature of the
present case.
Counsel for the Defender drew my
attention to two cases, there being a paucity of authority on this point. The cases
are Barratt Sçotland Limited v Keith
1993 SC 142, a decision of the Second Division, and
"10. In Barratt the Pursuers raise an
action seeking implement of an obligation in missives to deliver a disposition
of certain subjects in exchange for the price. The Defender submitted that the
obligation was covered by section 6 of 1973 Act and accordingly had prescribed.
Lord Penrose, the Lord Ordinary, held that the obligation in the missives was
an obligation relating to land within the meaning of para. 2(e) of schedule I
of the 1973 Act and accordingly the subject of the long negative prescription.
That decision was upheld by the Second Division."
"11. Counsel for the Defender drew my
attention to the dictum of Lord
Penrose at page 148 A to B.
The 'golden rule' of construction, in
its modern expression, requires that the words of the statute must, prima facie, be given their natural and
ordinary meaning, in their context, and according to the appropriate linguistic
register, without addition or subtraction, unless that meaning produces
injustice, absurdity, anomaly or contradiction. The expression in para. 2 (e)
includes the words 'any obligation', without specification of the source of the
obligation. This is in marked contrast to most of the provisions of paras. I
and 2. One must assume that this was intentional, and that the provision should
be capable of application whatever the source of the obligation, be it in
contract, promise, rule of law or statute. Except that it is clear that an
obligation must be owed by a person or persons to another person or persons,
there is no restriction on the scope of its application by reference to the
parties or their relationships either to each other or to the subjects in
question or any other subjects."
"12 Counsel also referred to a later
passage on page 148 D.
The words 'relating to land' define the
subject matter to which the obligation relates. They provide no other
qualification on its scope. If this view is correct, then the expression cannot
be limited to obligations relating to real rights of third parties, but must
include personal obligations under contracts dealing with land and interests in
land. With the exception of cases in which land is dealt with incidentally
only, contractual and other forms of obligation, such as unilateral gratuitous
promise, to create rights and interests in land, or to convey land or interests
in land, are in my opinion typical 'obligations relating to land'."
"13 In the Inner House, the Lord
Justice-Clerk, Lord Ross, said at page 154 A to B.
In the course of his opinion the Lord
Ordinary expressed the view that certain obligations in which land was dealt
with only incidentally were not 'obligations relating to land'. In this
passage, 1 think the Lord Ordinary must he referring to the sort of situation
envisaged by counsel for the pursuer where someone was instructed to dig a
ditch on land or a plumber was instructed to carry out repairs to heritable
fixtures. I agree with the Lord Ordinary that these can be regarded as cases in
which land is dealt with incidentally only. As already indicated, I regard
these cases as examples of contracts for services in which land is merely the
environment within which the services are to be performed. In these situations
the obligations to be performed are not to he regarded as obligations relating
to land."
"14 At page 157, Lord McCluskey said at
E to F
"In the circumstances the correct
course is to endeavour to give the words in the statute their ordinary meaning.
I agree with the Lord Ordinary that the first or golden rule of construction is
that the words of a statute must be given their natural and ordinary meaning in
their context unless to do so would produce injustice, absurdity, anomaly or
contradiction."
"15 Lord McCluskey at page 158 B to C
gave examples of obligations where the obligation involved land or heritable
property in some way, but the obligations did not themselves relate to land,
e.g. contracts whereby someone agreed to provide services relating to the land.
While it was unnecessary to decide the matter, it seems clear that Lord
McCluskey would have excluded these obligations from the ambit of "obligations
relating to land" within the meaning of schedule 1, para. 2(e)."
"16 Finally, counsel for the defender
referred to the opinion of Lord Kirkwood at page 159 at D to E.
In my opinion, however, it is important
to bear in mind that in the case of missives for the sale of heritable
property, the actual subject of the contract is the land itself and I cannot
regard the obligation to deliver a disposition of the subjects, to enable the
purchaser to acquire a real right thereto, as being other than an obligation
'relating to land,' The other types of contract to which counsel for the defender
specifically referred could not, in my view, properly be regarded as containing
obligations relating to land. I would have thought that a contract to excavate
a trench is an example of a contract to provide services. Although the services
are to be supplied on the land in question, the contractual obligation to
provide those services could not be said to be an obligation relating to land."
"17 In Glasgow City Council a
local authority entered into a lease with a construction company in terms of
which the company should have commenced building operations within 14 days of
the date of entry,
Reference was also made to
Against that background, it was
submitted that one has to distinguish an obligation which gives rise to a real
right and an obligation in respect of which land is incidental. If, in this
case, as the land is incidental, the obligation prescribes in 5 years.
Reference was made to
Reference was made to Clydeport Properties Ltd. v. Shell UK Ltd.
2007 SLT 547, an Outer House decision of Lord Glennie at para. 16 in which his
Lordship reviewed the authorities above referred, in deciding inter alia that an obligation relating
to the restoration of subjects of a lease, which was set out in the lease was
an obligation relating to land and that the land was not merely incidental.
I was referred to paras. 19 to 23 of my
original Note, which again I set out for simplicity. (There are 2 paragraphs in
my original Note numbered 22, but the numbering was not of my making)
"19 In my opinion, the undertaking by
the defender is not an obligation relating to land in terms of para. 2(e) of
schedule 1 of the 1973 Act, but was rather "an obligation arising from, or by
reason of any breach of, a contract or promise" (para. 1(g) of schedule I of
the 1973 Act) not being an obligation following within any other provision of
para. 1 and hence was one which prescribed after the expiry of a 5 year period."
"20 The defender undertook to enter
into a minute of agreement which related to a possible sale of land in three
situations, but in essence what he would have obliged himself to do would be to
pay over part of the free proceeds of the sale of the land. The pursuer would not
be a party to the missives entered into by the defender for that sale and
accordingly she could not sue for implement of these missives. She would able
to sue only once the subjects had been sold, and the defender failed to account
to her in terms of the minute of agreement.
"21 In Barratt both the Outer
House judge and. the inner House judges mentioned, albeit white; examples of
obligations where in the words of Lord Penrose, "land is dealt with
incidentally only." (page 148E; see also the opinion of Lord Justice Clerk Ross
at page 154B.) These were examples of someone undertaking to do something to
land or other heritable property, for example, to dig a ditch or to carry out
repairs to a plumbing system. That type of obligation was not "an obligation
relating to land." I respectfully agree with the opinion of Lord Eassie in Glasgow
City Council that
obligations relating to land are not restricted to real rights but extend to
"personal obligations arising under contracts which have as their subject the
creation of rights or interests in land or the transfer of the existing rights
or interests in land." (page 266H) In that case, he held that an obligation to pay
a grassum which was the direct counterpart of an obligation to grant possession
of land by the landlord was an obligation relating to land."
"22 I found the discussion in
"23 (the 2nd para. 22) Both Barratt
and Glasgow City Council were cases involving personal obligations which
were so closely connected to transactions involving land that they were
properly, in my respectful opinion, classified as obligations relating to land.
"24 However, the land transaction in
the present case is in my opinion much less closely associated with the defender's
undertaking. The Defender undertook to enter into a minute of agreement. If it
had been entered into, the minute of agreement would undoubtedly have been
connected with the possible land transaction, but the minute of agreement would
not have created rights or interests in land or transferred existing rights or
interests in land. It would have created no more than a right to payment out of
the free proceeds of a sale of the land. A contract for the sale of land would
have had to follow upon the minute of agreement and would have been entered
into by the defender and a third party. Only once that transaction had been
completed would any right under the minute of agreement be enforceable by the pursuer.
In my opinion, therefore, the land transaction was incidental to the obligation
undertaken by the defender which was no different from an obligation to pay
someone out of the free proceeds of the sale of any other item of property, for
example, shares. Even if the Defender had undertaken to enter into missives for
the sale of subjects, I would have regarded that obligation as also being
incidental to an obligation relating to land and hence one which would have
prescribed in 5 years."
Craves 3 and 4.
The Defender submitted that these
Craves should also be dismissed. The following points were made in that
connection:-
(a)
The letter of
Reference was also made to the dictum of Lord Mustill in Tam
Wing Cheun v. Bank of Credit and Commerce Hong Kong Ltd. [1996] 2 B.C.L.C.
69 at 77 where his Lordship said, "A person who puts forward the wording of a
proposed agreement may be assumed to have looked after his own interest, so
that if the words leave room for doubt about whether he is intended to have a
particular benefit there is reason to suppose that he is not." (Quoted in
McBryde at 8.38)
(b)
It was submitted that Crave 4 is irrelevant, in that an
order ad factum praestandum is a
judicial order in respect of an obligation due by someone, (Walker on Civil Remedies p. 269) and the Pursuer
does not say that the Defender ought to have done anything.
The Defender's submission on the case
as originally pled was that the obligation has prescribed and I should
therefore sustain the Defender's 3rd plea-in-law. On the "new" case,
the submission was that it is irrelevant, as the Pursuer's construction does
not accord with the terms of the Undertaking. I should therefore dismiss Craves
5 and 6.
I should therefore uphold the
Defender's 1st 2nd and 3rd pleas-in-law in
respect of Craves 2, 3 4, 5 and 6, and repel the Pursuer's 4th and 5th
pleas-in-law.
Submissions for the Pursuer.
I should repel the Defender's 3rd
plea-in-law and quoad ultra, allow a
proof before answer.
Craves 1 and 2.
Reference was made to section 15(2) of
the 1973 Act which states, "...unless the context otherwise requires, any
reference to an obligation or to a right includes a reference to the right, or,
as the case may be, to the obligation (if any) correlative thereto." That
indicates that this is a broad concept and that the "obligation" must include
the Pursuer being a tertius in
respect of a ius quaesitum tertio. Reference
was made to Scott Lithgow Ltd v. GEC
Electrical Projects Ltd 1989 SC 412,
(an Outer House decision of Lord Clyde) especially at pp. 436-439.
The effect of the Undertaking is to
confer on the Pursuer an interest in the land, particularly its planning status
and value and to impose on the Defender an obligation to secure the Pursuer's
interest by reference to the terms on which the land is sold.
It is incorrect to say that the
Undertaking creates no more than a right of payment out of the free proceeds of
land. While there is no obligation on the Defender to sell, in the event that
he does and paragraph 3 is applicable, such a sale must be on terms specified
in the interest of the Pursuer.
In construing the phrase "any
obligation relating to land":
(a) the words should be given their
natural and ordinary meaning; (see Barratt
Scotland Limited v Keith 1993 SC 142 per Lord Penrose at page 148A-B; Lord McCluskey at page 157E)
(b) the natural and ordinary meaning is
consistent with a broad interpretation of the phrase. (see Barratt Scotland Limited v Keith 1993 SC 142 per Lord Penrose at
page 148A-F; Lord Justice-Clerk (Ross) at page 154A-C; Lord McCluskey at page
157H to 158C. Also Lord Kirkwood at page 159C)
In this regard, the expression
may be contrasted with the expression 'interest in land' used in similar
contexts. (For example section 1(7) Requirements of Writing (
(c) it is not appropriate to apply a
technical or mechanical meaning to the phrase. (see Barratt per Lord McCluskey at page 157G-H)
(d) a wide construction is consistent
with the width of the exceptions found in paragraphs 1(a) etc of schedule 1 of
the 1973 Act, particularly:
• 1(a)(v) rent
• 1(a)(vi) periodical payment in
respect of the use of land;
• 1(a)(vii) periodical payment under a
title condition; (see definition in Title Conditions (Scotland) Act 2003 asp 9
section 122)
• 1(aa) compensation for extinction of
a leasehold casualty;
• 1(aa) compensation for extinction of
feu duty;
• 1(ac) obligation to pay costs under
Tenement (
The definition of "obligation"
It is the obligation not the contract
that is to be considered. (see Barratt
per Lord Justice-Clerk at page 153F-G and Lord McCluskey at page 158) The term
is further widened by the definition in section 15(2) of the 1973 Act.
The interpretation of "relating to"
In
Craves 3 and 4
It was submitted the substance of the
obligation was not to enter into the formal minute of agreement but to carry
out the obligations set out in the numbered paragraphs of the Undertaking. None
of these obligations had become prestable more than five years before the
action was raised and some of them are still not activated.
While it is perfectly possible for the
parties to an apparent contract to provide that there shall be locus poenitentiae until the terms of
their agreement have been reduced to a formal contract, the bare fact that the
parties to a completed agreement stipulate that it shall be embodied in a
formal contract does not necessarily import that they are still in the stage of
negotiation. In each instance, it is a matter of the construction of the
correspondence in the light of the facts, proved or averred, on which side of
the border line the case lies. (see Stobo
Limited v Morrison's (Gowns) Limited
1949 SC 184 per Lord President Cooper at page 192)
It was submitted that the document
signed by the Defender evinces an intention to be bound to carry out the
obligations listed in the numbered paragraphs. The Defender does not contend
otherwise; only that the making of the Minute of Agreement stands in the way of
enforcement. (see Answers 4, 5 and 6)
Notwithstanding the last sentence of
Answer 3, the Defender does not contend that the obligations undertaken in the
letter cannot be enforced to the effect of obtaining specific implement. (see McArthur v Lawson (1877) 4 R 1134 per
Lord President Inglis at page 1136)
As with missives, the obligation to
enter into a formal minute is simply a piece of mechanics. (see Barratt Scotland Limited v Keith 1993 SC 142 per Lord McCluskey at page 157H) A practical approach is appropriate. (see Stone v Macdonald 1979 SLT 288 per Lord
Ross at page 290)
In considering the contract as a whole,
one feature that favours a wider interpretation is that the narrower one would
allow the Defender to benefit from his own breach of contract - by failing to
enter into a formal minute, he avoids the duties that are the intended content
of the minute.
The case law in England and the
Commonwealth was extensively reviewed by Lord Jauncey in Alghussein Establishment v Eton College [1988] 1WLR 267 at 592 in
which he quoted Viscount Reading C.J. in New Zealand Shipping case [1917 2KB
717, at pp. 723-724:
"Unless the language of the contract
constrains the Court to hold otherwise, the law of
Given that this is the House of Lords
applying equitable considerations, it was submitted that the same principles
apply in
Proof before answer
Other than the Defender's third plea in
law, which relates only to prescription, it was submitted that the issues
between the parties would most usefully be determined once the facts have been
established. The context in which the individual obligations came to be agreed
might shed light on the issues in general and, more particularly, the
interaction between the opening words' obligation to enter into a formal minute
and the numbered paragraphs.
In The
Howgate Shopping Centre Ltd v Catercraft Services Ltd 2004 SLT 231, Lord Macfadyen, having
identified the way in which a provision of the parties' contract would fall to
be analysed if viewed in isolation from the background circumstances, held that
the point is capable of yielding to indications to the contrary in the
background circumstances:
"In my opinion it follows that the
issue cannot in this case be resolved without considering the effect of the
background circumstances on the interpretation of the language of Clause SECOND.
In seeking to identify the background
circumstances which may legitimately be taken into account in interpreting the
rent review pro visions of the sub -lease, I bear in mind that regard may be
had only to circumstances knowledge of which was, or ought reasonably to have
been, available to both parties." (p. 241, paras. 35, 36)
In these circumstances, it was
submitted that there would be a significant benefit in having a proof before answer, particularly
when the Defender puts the circumstances of the signing of the obligation in
issue as he does in Answer 3.
Decision.
(a) The case as originally pled.
In relation to the case as originally
pled, I have not been persuaded by the Pursuer's submissions to depart from my
earlier view that the obligation contained in the Undertaking is an obligation in
which the land is merely incidental, or putting it another way, applying the
test in Johnston on Prescription and
Limitation para. 6.60, that the land
was not the main object of the obligation. My reasons are set out in the
paragraphs of the original Note quoted above. I would add that it would seem to
be an odd result to say that an undertaking to give someone a half-share of the
proceeds of the sale of shares, a car, or a painting would be subject to the
5-year prescription, but to the 20-year prescription, if the property being
sold was heritable.
I should however comment on the issue of ius quaesitum tertio which was not raised at the original debate. It may be that the term "obligation" in s. 15(2) of the 1973 Act is habile to include a tertius, but, in my opinion, the submission that the Pursuer is a tertius is ill-founded. As I understand the law on ius quaesitum tertio, it confers on a third party, a title to sue. However, before that right can be exercised, there must be a contract in existence and one in which the tertius is named, or the tertius is a member of a class of persons named or identified in the contract. It is accepted that there is no contract in existence by which the Defender is obliged to sell his land and so, I cannot see how a ius quaesitum tertio can be said to exist. The case of Scott Lithgow which was cited by the Pursuer raised an issue about ius quaesitum tertio, but in the passage referred to (pp. 436-439) Lord Clyde was discussing the issue whether a tertius has a title to sue only in respect of non-performance, or whether the tertius can sue also for defective performance.
That case in therefore of no assistance until a concluded contract for the sale of the Defender's land exists.
(b) The new case.
The third carve is for declarator that
the Defender is bound to implement paragraphs 1 to 3 of the Undertaking, and
the fourth crave is for an order requiring him to implement these paragraphs.
In my opinion, the new case is
misconceived in that I am unable to see how Craves 3 and 4 can be additional to
Craves 1 and 2, but they may be alternatives.
Craves 1 and 2 are predicated on the
proposition that the Undertaking dated 4th and 11th May 1995 took
effect from the latter date, whereas Craves 3 and 4 are predicated on the basis
that the Undertaking relates to a contract for sale which, as yet, has not been
entered into by the Defender, and may never be entered into.
Read literally, the Undertaking
requires the Defender to enter into a Minute of Agreement with his sister that
he will give money to her "[i]n the event of the sale of the land...." To grant
an order which the Pursuer seeks, i.e. to require the Defender to enter into
such a Minute, does not advance matters at all, because the Minute of Agreement
would have no practical effect until there is a sale. The Minute of Agreement,
like the Undertaking, would prescribe in 5 years, if, as the Defender contends,
it is not an obligation relating to land, or in 20 years, if as the Pursuer
contends, it is such an obligation. That might result in the Minute of
Agreement having prescribed before any sale.
It may be straining the language used,
but, in my opinion, a commercially-sensible interpretation is justified in
order to give effect to what I regard as the true intentions of the parties, viz:-that, in the event of a sale, the
Pursuer would be entitled to a share of the proceeds. No such entitlement
arises until there is a sale.
On that approach, the Undertaking by
the Defender comes into force only if two conditions are satisfied. The first
is that the Defender has sold the land and the second is that, following upon a
sale, he has not entered into a Minute of Agreement with the Pursuer.
In my opinion, the
Undertaking is therefore subject to a suspensive, potestative condition. It is
suspensive in that it cannot come into force until the Defender sells his land.
It is potestative in that it is entirely for the Defender to decide when, or if,
to sell his land. On that analysis, only if the
Defender sells, and the Defender has not entered into a Minute of Agreement
with his sister, will the Undertaking take effect and at that point, it remains
in force, in my view, for 5 years, or if the Pursuer's submission is correct,
for 20 years because it is an "obligation relating to land."
If one takes an
example which is not complicated by any reference to land. A father says to his
12-year old son in February 2009, "In the event that you qualify as a lawyer, I
will give you £5000." There can be no doubt that that is an obligation which
prescribes after 5 years. Unless the son is some pubescent prodigy, he is
unlikely to be so qualified until his early 20s. In my view, it would be
strange to suggest that the promise, or obligation, is effective as from
February 2009, because, on that premise, it would have prescribed even before
the father and son envisaged it taking effect.
I am not persuaded
by the submission that, in terms of the Undertaking, the Pursuer would have to
be party to the contract for sale entered into by the Defender. He could
protect her interests either by entering into the Minute of Agreement, or by
directing his solicitor to pay her in terms of whichever paragraph of the
Undertaking applied to the sale.
Crave 4 seeks an order ad factum praestandum. Such an
obligation must be in respect of an obligation due by the Defender. (
The various authorities cited by the
Pursuer are of little assistance in determining the true meaning of the Undertaking
and when it takes effect. As the Defender has not yet sold the land, the
Pursuer's Craves 3 and 4 are premature, and irrelevant.
In summary, therefore, I have concluded
that the obligation contained in the Undertaking is not an obligation relating
to land and so prescribes in 5 years, but that the obligation does not come
into force until the Defender sells his land, which may never take place.
Given the success, I shall award the
Defender expenses.
The issue of what is meant by "an
obligation relating to land" is one of some nicety and I shall therefore
certify the Debate as suitable for the employment of junior counsel.