Scottish Sheriff Court Decisions

A216/10

SHERIFFDOM OF TAYSIDE CENTRAL & FIFE AT KIRKCALDY

 

JUDGMENT OF

SHERIFF AG MCCULLOCH

 

In the cause

 

SCOTIA HOMES (SOUTH) LIMITED

Having their registered office at 23 Bridge Street, Ellon, Aberdeenshire

PURSUERS

against

 

Mr JAMES MAURICE McLEAN & Mrs LINDA ISABELLA McLEAN

Residing at 1 The Fairway, Kirkcaldy, KY1 3AU

DEFENDERS

 

Act: Upton, instructed by Thorntons, Dundee

Alt: Davies, instructed by Innes Johnston, Kirkcaldy

 

 

Kirkcaldy, 11 January 2012.

 

The Sheriff having resumed consideration of the cause FINDS IN FACT:

 

[1]         That the Pursuers are property developers and builders. They were from early 2008 seeking purchasers for properties within a development known as Langtoun Maltings, Kirkcaldy.

[2]         That the defenders are a married couple, who reside in Kirkcaldy, and in early 2008 were actively searching for properties to purchase.

[3]         That the second named defender, hereinafter called Mrs McLean, was on 26 January 2008 driving in Kirkcaldy when she saw the pursuers' site at Langtoun Maltings. This site was newly opened, at a very early stage of preparation with the sales office consisting of a portacabin on the site. Mrs McLean entered the portacabin, having seen an advertising hoarding at the entrance to the site which indicated that 2 and 3 bedroom properties were available to purchase.

[4]         That Mrs McLean was met by, and discussed matters with, Gill Nisbet one of the pursuers' sales representatives.

[5]         That by that time no formal sales schedules had been completed by the pursuers, and that during their discussions the only documents available to Gill Nisbet were a site plan (of which 5/12 is part), and a price list (not produced).

[6]         That Mrs McLean was interested in purchasing a number of properties in early 2008, having recently completed the sale of a public house; and that at least one of the properties to be bought was for one of her sons.

[7]         That Mrs McLean, having seen the advertising hoarding, and the site plan, and in discussion with Gill Nisbet, considered that the prime properties in the development were the flats with the large corner window features, being plots 42, 43 & 44. These were respectively ground, first and second (top) floor apartments. She decided to buy plot 44, paid an initial deposit of £500, and signed a reservation form (5/10). The agreed price was £124,950, although if Missives were "returned within 14 days of issue" a discount of £5000 would be applied, leaving a net purchase price of £119,950. The property reserved is described in 5/10 as "Plot Number 44, House type FT12 SF". The reservation form was annotated by Gill Nisbet with " Investor - to rent or for son to move into".

[8]         That Gill Nisbet provided Mrs McLean with a plan, showing the proposed layout of plot 44, which she copied from the site plan. That plan is 5/12 of process. It shows an architect's drawing of the plot, originally marked as "Plot 39" but in bold ink is written Plot 42 (GF), Plot 43 (FF) and Plot 44(SF). Three bedrooms in total appear on this plan, marked as bedroom 1, in the lower part of the plan, bedroom 2 next to it, and a further bedroom 1 to the top left corner. There is no obvious access to this second bedroom 1 from the rest of the apartment. On the plan it is separated from it by a series of lines, which are drawn in similar fashion to external walls.

[9]         That neither Gill Nisbet nor Dorothy Nesbit advised Mrs McLean that Plot 44 was, or would be, designed and constructed as a three bedroom property.

[10]     That Mrs McLean believed that the property she had reserved was a three bedroom flat, and told her husband so on return home; he was unconvinced, immediately noting what he considered to be a dividing wall between the second bedroom 1, and the rest of the flat. That neither defender advised their solicitor, Andrew Baillie, of any uncertainty over the number of bedrooms, nor was the plan 5/12 shown to the solicitor.

[11]     That there were no three bedroom flats available for sale by the pursuers in January 2008, nor in June 2008, when Mrs McLean revisited the portacabin to complain about the interior fittings/colour choices plan (5/13) which had been sent to her by the pursuers, and only showed two bedrooms. That this was the first occasion that the pursuers became aware of the defenders' apparent belief that Plot 44 was to contain three bedrooms.

[12]     That the pursuers had throughout the period February 2008 to at least July 2008 advertised the development as " Released for sale - 2 & 3 bedroom apartments, prices from £114959 to £124950". That this was inaccurate, as at that time there were no three bedroom properties available.

[13]     That the pursuers' solicitors, Thorntons, sent to the defenders solicitor, Andrew Baillie, a pro-forma offer, which Baillie completed and returned to Thorntons with a covering letter, dated 28 March 2008, which offer was accepted by letter from Thorntons dated 31 March 2008. That these letters (5/1 & 5/2) are the Missives by which the pursuers bore to agree to sell and the defenders bore to agree to purchase the subjects forming and known as Plot 44, Langtoun Maltings, Kirkcaldy at a purchase price of £124950. That within the Missives, the subjects are described as "that flatted dwellinghouse being Plot 44 of your development at Langtoun Maltings, Kirkcaldy, and that by condition 1.1 (m) "dwellinghouse" is defined by reference to the House Type referred to in the schedule to the Missives, where it is noted as being FT12 (second floor). That the missives make reference to the site plan 5/14, which shows the attitude, position and location of Plot 44 within the development, and that the detailed plan 5/12 was available to parties before the plot was reserved, and missives concluded.

[14]     That the Missives, when read with 5/14 and 5/12 give an adequate and sufficiently certain description of the property being purchased.

[15]     That the defenders paid the agreed deposit of £5000 on 4 April 2008, and at that point Plot 44 had not been constructed. That on 12 June 2009, NHBC completion was intimated to the defenders, with local authority habitation intimated on 18 June 2009. On 2 July 2009, the pursuers' agents wrote to the defenders' agent holding the defenders to be in material breach of the Missives, as settlement had been effected by the due date, 25 June 2009. That letter confirmed that the pursuers were now remarketing the property, to minimise any losses. That the balance of the purchase price has not been paid by the defenders.

[16]     That Mrs McLean, on receipt of the plan 5/13 contacted her solicitor to advise that she was under the impression that the property reserved as Plot 44 was to contain three bedrooms, rather than the two shown. Baillie's letter to Thorntons, dated 10 June 2008 (6/3), sets out the defenders' position, which was that Mrs McLean had discussed with the pursuers' representative that she wanted a three bedroom flat, and was given an assurance in that regard. The letter suggests that as there is no consensus between the parties, there can be no contract. It seeks return of all monies paid by way of deposit, as the defenders do not wish to proceed with the purchase of a two bedroom property. By letter dated 10 July 2008 (6/4) Thorntons responded with an insistence that the contract will be honoured by the pursuers, and deny any suggestion that the sales staff indicated that Plot 44 would be a three bedroom property. On 11 July 2008, Baillie replied (5/16) restating the belief that the property was to contain three bedrooms, that there was misrepresentation by the pursuers, which was clear from advertising available at the time, and shortly afterwards, and threatening court action for return of the deposit monies paid of £5500. No such action was raised, although new solicitors for the defenders wrote on 18 August 2008 (5/17) restating the defenders position on the representations made, and demanding repayment. In January 2010, the pursuers rescinded the contract due to non-performance by the defenders.

 

FINDS IN FACT AND IN LAW

 

1.      That there has been no misrepresentation by or on behalf of the pursuers such as to justify reduction ope exceptionis of the Missives.

2.      That the Missives are not void from uncertainty

 

THEREFORE

Repels the defenders 4^th and 5^th pleas in law; allows a proof before answer on the pursuers' second plea in law, restricted to quantum; appoints the cause to a hearing on expenses on 22 February 2012 at 2.00 pm.

(Signed) A G McCulloch

 

 

NOTE :

[1]          In this matter, I heard evidence and submissions over a number of days. Proof had been restricted by interlocutor of 1 June 2011 to consideration of the defenders 4^th and 5^th pleas in law, in the following terms:-

4. The Missives being void from uncertainty as condescended upon, the defenders should be assoilzied from the craves of the initial writ.

5. In any event, the defenders having been induced to enter into the Missives as a result of the misrepresentation of employees of the pursuers, the Missives should be reduced ope exceptionis and the defenders assoilzied from the craves of the writ.

 

[2]          The following authorities were referred to :-

Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154

May & Butcher Ltd v The King [1934] 2KB 1

McArthur v Lawson 1877 4R 1134

Grant v Peter Gauld & Co 1985 SC 251

McClymont v McCubbin 1994 SC 573

NJ&J MacFarlane (Developments)Ltd v MacSweens Trs 1999 SLT 619

Bogie v Forestry Commission 2002 SCLR 278

Daks Simpson Group PLC v Kuiper 1994 SLT 689

Gordon v East Kilbride Development Corp 1995 SLT 62

Sovereign Dimensional Survey v Cooper 2009 SC 382

Braes v Keeper of the Registers of Scotland 2010 SLT 689

Walton-Towers v McPhail 1986 SLT 617

Bell v Lothianleisure Ltd 1990 SLT 58

Richardson v Quercus Ltd 1999 SC 278

R&J Dempster v Motherwell Bridge & Engineering Co 1964 SC 308

R&D Construction Group Ltd v Hallam Land Management Ltd 2009 CSOH 128

Brown v Guild 1972 Ch 53

Investors Compensation Scheme v West Bromwich Building Society 1998 1 WLR 896

Chartbrook Ltd & Anr v Persimmon Homes 2009 UKHL 38

John v Price Watehouse [2002] EWCA Civ 899

Emcor Drake & Scull v Edinburgh Royal Joint Venture 2005 SLT 1233

Land Registration Act 1979 s4

Contracts (Scotland) Act 1997 s1

Conveyancing 4^th ed - Gretton & Reid, para 12 -18 (and 3^rd ed para 4.03)

Interpretation of Contracts - Lewison

Contract 3^rd ed - McBryde, paras 5.11 - 5.25; 8.34 - 8.36; 15.66 - 15.73

Contract 2^nd ed - Gloag, pp11-12, 471-472

Conveyancing Law & Practice 2^nd ed - Halliday Vol 2, paras 30.28 - 30.33; 30.139- 30.140; 33.02; 33.64 - 33.66; 33.82

 

[3] This is a case involving builders' (or developers') Missives, and possible misrepresentation. What is clear from the evidence is that the defenders were keen to purchase properties, they being in the fortunate position of having the finances to do so, after the sale of a public house. In early January 2008, the pursuers having acquired the site at Langtoun Maltings, Kirkcaldy, started to advertise for property to be purchased prior to redevelopment of the site, and the building of various properties. A large advertising hoarding was placed at the roadside which showed an artist's impression of the finished development, with the legend "Two and Three‑Bedroom Properties for Sale". This sign attracted the first named defender, Mrs McLean, as she drove past on 26 January 2008. She decided to investigate the possibilities of a purchase there.

 

[4] Mrs McLean entered the portacabin and was met by Gill Nisbet, one of the two sales representatives employed by the pursuers at the site. At that time the pursuers had not yet produced sales particulars, and all that was available to Ms Nisbet was a A3 sized architects plan of the whole development, and a schedule of prices. At the proof the A3 plan was produced (5/14) but there was no trace of the price schedule. The earliest one that the pursuers had been able to trace was dated 30 January 2008, (5/15), which showed as reserved, the plot that Mrs McLean had reserved on 30 January, namely Plot 44. This plot was shown on the site plan 5/14 as being one of three (42, 43 and 44) to the right hand side of the development, adjoining Overton Road, opposite its junction with Lorne Street as part of block FBK3. These particular flats (42, 43 and 44) where thought by the pursuers, and indeed by Mrs McLean, as amongst the best in the development, because of the presence there of a large feature window within the livingroom. Indeed in a local property newspaper, called "PropertyToday.co.uk" a full‑page advert in the edition of 28 February 2008 by the pursuers had, as one of its main depictions by artist's impression of the development, this very block. Mrs McLean was attracted by the second floor (top) property. At this point it becomes clear that there is a discrepancy between the pursuers and the defenders as to what happened at the discussions on 26 January 2008, leading up to the signature of a reservation form by Mrs McLean. It is the defenders position that Mrs McLean indicated at the outset that she wanted a three‑bedroom property, and that she was assured by Ms Nisbet that the property she had reserved would indeed be a three‑bedroom property. It is for that reason, and for that reason alone, that Mrs McLean maintains that she reserved the property. To support her position, she refers to the plan that she was given by Ms Nisbet to take away with her. That plan, 5/12 of the process, does indeed show three bedrooms; however they are referred to as bedroom one, bedroom two, and bedroom one. For those not experienced in reading architects drawings or plans, it may well appear that the "second" bedroom one, shown at the top left hand corner, might indeed be part of the same subjects as the rest of the property. However, it was Mrs McLean's position that it showed three bedrooms, that she did not understand plans, and therefore she signed the reservation form. She then went home and later in the day discussed matters with her husband, the second named defender. It was the evidence of both Mr and Mrs McLean, that Mr McLean had immediately noticed the second bedroom one was on the wrong side of what appeared to be a structural, dividing wall. When he challenged his wife about this, she said that she had been told by Ms Nisbet that the plans were not finalised and she would be sent a proper plan in due course. Nothing more was said, or done.

 

[5] Shortly afterwards Mrs McLean advised her solicitor, Andrew Baillie, that she had purchased Plot 44 Langtoun Maltings, Kirkcaldy and sent to him the reservation form that she had completed. She did not tell Mr Baillie that the property had three bedrooms, indeed she did not mention the number of rooms at all to him.

[6] In due course the pursuers' solicitors, Thorntons, sent the defender's solicitor, Baillie, an offer to purchase. In accordance with instructions previously obtained, Mr Baillie submitted the offer on behalf of the defenders and Missives were concluded by a letter from Thorntons. These Missives, constituted by 5/1 and 5/2 of process were subsequently the object of the pursuer's fourth plea in law, namely, that they were void from uncertainty. In any event, by the time that the defenders had received the further, promised, plan from the pursuers Missives had been concluded. The new plan 5/13 was clear to the extent that there were only two bedrooms. It omitted "second" bedroom one. The defenders sought to withdraw from the contract, but the pursuers did not agree. Eventually once the property was built and the appropriate certifications were obtained, the full price became due. It was not paid. The pursuers later resold the property, and have in this action sought to recover their apparent losses from the defenders. As the proof has been restricted to the defenders fourth and fifth pleas, the court is not at the present time considering the pursuers claim for payment.

 

[7] The defenders case has two separate, and partially related, positions. The first is that the pursuers induced them to enter in to the contract by falsely representing that the property would be one containing three bedrooms. The defenders did not wish a two‑bedroom property, and would not have contracted for one. They were thus wrongly induced in to the contract to purchase Plot 44 as a result of misrepresentations made on behalf the pursuers by the sales staff on 26 January 2008. The second position is that esto there was no misrepresentation, the Missives are void from uncertainty. There is no clear description of what is being contracted for. The only references are to "Plot 44" and "House Type F T 12". On their own the Missives are unclear and thus must be uncertain and for this reason they should be reduced ope exeptionis. On the other hand the pursuers deny firstly that there was any misrepresentation, and secondly that there is nothing uncertain about the Missives; thus the pleas in law should be repelled. I will deal with these points separately.

 

Misrepresentation

[8] For the defenders to prove that there had been misrepresentation, I would have to accept the evidence of Mrs McLean and reject the evidence of Gill Nisbet. The evidence of Dorothy Nesbit is of some assistance, but as the principal discussion was between Mrs McLean and Gill Nisbet, it is to their evidence that I first turn.

 

[9] Mrs McLean gave her evidence in an open manner and fully answered the questions asked of her in both chief and cross. The critical passage of her evidence was in relation to what was said between her and Gill Nisbet in the portacabin on 26 January 2008. Mrs McLean's evidence was that she had been told that the flat was to have three bedrooms. She has been consistent in saying this ever since. There was evidence from her husband, and Andrew Watt a local estate agent, that both had been told by Mrs McLean shortly after the meeting on 26 January that she had bought a three‑bedroom flat at the development. Mrs McLean maintains that she spoke primarily with Gill Nisbet, and that she told Ms Nisbet that she wanted a three‑bedroom property, and that she was given a drawing which shows three bedrooms. In evidence she accepted that as now explained to her the drawings showed a dividing wall between the third bedroom ("second" bedroom one) and the rest of the flat. She said that when the plan was given to her it was only to give her an idea of what the flat might look like as the pursuers had no other sales particulars available at the time, and 5/12 was copied from a larger plan. According to Mrs McLean she was told that Plot 44 would have three bedrooms, and the plan she was given was not intended to be definitive of what she was buying, but only an indication of the rough layout. What is clear however is that in June 2008 having been sent the revised plan 5/13, she contacted her solicitor who described her as being "in a considerable state of anxiety" when she contacted him, and after which he wrote his letter of 10 June 2008 to Thorntons (6/3).

 

[10] On the issue of misrepresentation I heard from Mr McLean, Mr Watt and Mr Baillie all of whom confirmed that they were told by Mrs McLean that she had bought a three‑bedroom property.

 

[11] However, the pursuers witnesses Gill Nisbet, and to a lesser extent Dorothy Nesbit, also addressed the issue of misrepresentation. Gill Nisbet's position is quite clear namely that Mrs McLean had said that she wanted to a two‑bedroom flat. She was also looking for a three‑bedroom house. She (Nisbet) said that there were no three‑bedroom flats yet for sale, and she had no plans, layouts or prices for any three‑bedroom flats. Ms Nisbet maintained that her usual practice was to "talk her through a visual walk‑through of the flat". She gave her evidence in a fair, reasonable and confident manner. I found her to be generally credible and reliable.

[12] Dorothy Nesbit had joined her colleague and Mrs McLean sometime after they had started discussing matters, just before the reservation form had been signed. She described Mrs McLean as being very buoyant, remember her distinctly. She recalled Mrs McLean mentioned that she had sold a pub and that she was interested in buying a three‑bedroom house at Dysart. She thought that the reservation procedure had been unusual, in that Mrs McLean had come in and paid the deposit, making the reservation in the space of half an hour, which was "unheard of". She had heard no reference to any mention either by Mrs McLean or by Gill Nisbet of three‑bedroom flats. She found it difficult to believe that Mrs McLean could have thought that she was purchasing a three‑bedroom flat. She pointed out that the portacabin was not particularly large, and was open‑plan. There had been nobody else there and although she had been going about other tasks, she had overheard much of what had been said. I found her also to be a credible and reliable witness

 

[13] The pursuer's response on the issue of misrepresentation was prefaced with the comment that the defenders did not plead fraudulent misrepresentation nor error, but simply "misrepresentation". The basis of the alleged misrepresentation was that in the sales office on 26 January, Mrs McLean was repeatedly told by the pursuer's staff that "Plot 44 would be a three‑bedroom flat". In evidence Mrs McLean maintained that she asked this three times and was given the same response in the affirmative, three times. The pursuers doubt that she can possibly be credible on this, and it was just implausible that such repeated comments would not be overheard by Dorothy Nesbit, even if they were denied by Gillian Nisbet. The pursuer's evidence was quite straightforward: no such representation was made.

 

[14] The evidence in chief of Gillian Nisbet was crucial. If believed, that would be the end of this issue. Her position was that she had not said to Mrs McLean that there were three‑bedroom flats available. Although Dorothy Nesbit was not involved in the primary discussions she did give evidence that she recalled Mrs McLean's visit to the sales office, but she was not there for long, and that her decision to buy there and then had been "unusual". Both sales ladies confirmed that they had no documentation relating to three‑bedroom flats, and that they had not been in a position to discuss three‑bedroom flats. The reason that the plan 5/12 of process had been used, was because it was all they had in the sales office; it was originally an A3 sized paper, but there was only an A4 copier which meant that Mrs McLean was handed an A4 plan of the property. When one factored in the evidence of Mr Lonie, the pursuer's director, regarding what actually existed on paper at the time, it was clear that not only was there not misrepresentation on 26 January, but at the very best that could be said for the first defender was that she had been mistaken in her analysis or understanding of the plan 5/12. Accordingly it would improper for the court to prefer the evidence of Mrs McLean over that of Gillian Nisbet and Dorothy Nesbit.

 

[15] Further, in any event, how reasonable was the first defender's belief that there were three bedrooms? The only document that might support her contention was 5/12. However the second defender, Mr McLean, immediately spotted that the property was only a two‑bedroom property as soon as he saw it, recognising the dividing wall. Both McLeans confirmed that they discussed it that night, but neither drew it to the attention of their solicitor, a fact which was confirmed by Mr Baillie. The first that he became aware of Mrs McLean's understanding of the property being purchased as having three bedrooms was on 10 June 2008. One has to wonder why, given the obvious confusion that existed between the McLeans themselves on 26 January, that they did not seek clarification from the pursuers, or bring the matter to their solicitors attention so that when the Missives came to be considered, they would be considered by Baillie as being an offer for a three‑bedroom property, which issue he could clarify if it was unclear from the missives once received.

 

[16] There were two possible versions of how Mrs McLean had thought that this was a three‑bedroom property and both relate to the use of the plan, 5/12. The first is that Mrs McLean was shown a plan, and saw and understood that it showed a two‑bedroom flat, but was told that Plot 44 was nevertheless to have three bedrooms. Alternatively, she was shown a plan of a structure but justifiably read it as showing a three‑bedroom flat. The difference is that on the first version the plan she was shown did not misrepresent matters, and only Gillian Nisbet's statements misrepresented the situation, whereas on version two the plan was part of the misrepresentation in as much as it appeared to be consistent with the oral misrepresentations. In respect of the plan 5/12 according to the pursuers it came to this:- do the defenders say that its inconsistency with the misrepresentation was explained away by Gillian Nisbet, or do they say that this did not happen and on the contrary as Mrs McLean read the plan (three bedrooms) it was consistent with the alleged oral misrepresentation?

 

[17] When considering the first defender's evidence it is clear that it is version one that she is relying on. Indeed it was consistent with the conversation that she and her husband had in the evening. However previously the defenders position was version two, and this appears from the content of the letters that were written between the defenders agents and the pursuer's agents, 5/16 and 5/17. These letters purports to indicate that Mrs McLean had taken the plan on 5/12 to show the third bedroom as included within Plot 44. Although 5/17 is written 'without prejudice' no objection to it was made at the time it was referred to in evidence. In cross examination Mrs McLean appeared to go back to version two as being her preferred line of evidence. Such is her confusion about the misrepresentation the misrepresentation case cannot stand.

[18] I have found it impossible to accept Mrs McLean's version of the discussions on 26 January 2008. It is clear from the evidence that there was no material, by way of a price list or sales particulars, relating to any three‑bedroom flats. I accept the evidence of Gill Nisbet and Dorothy Nesbit that no three‑bedroom flats were mentioned. I got the impression, although this was denied by Mrs McLean, that she was very keen to buy the best plot in the development, which was generally accepted to be one of Plots 42, 43 and 44, and that when she saw the plan 5/12, she noted the third bedroom. It thereafter became her position, in conversations with her husband and others, that she was buying a three‑bedroom property, and used the existence of "second" bedroom one on the plan to bolster that belief. In fact that belief was erroneous and consequently as I have not accepted Mrs McLean as a credible or reliable witness in this regard, their claim that there has been misrepresentation must fail. Her position changed in evidence as to the nature of any misrepresentation, from version one to version two, leaving me to doubt the veracity of her evidence.

Missives void from uncertainty?

[19] This aspect of the defenders case is one based upon construction rather than evidence although to a limited extent one can factor in Mrs McLean's (incredible and unreliable) insistence that the property was to contain three bedrooms. What is clear is that the number of bedrooms was never discussed with Mr Baillie, nor did he see any plan at any time before concluding the Missives. What is equally clear is that the Missives do not of themselves refer to the number of rooms, or specifically the number of bedrooms. They do by implication make reference to the site plan, but the site plan is of limited assistance other than in fixing where Plot 44 happens to be in the overall site. It does not give for example the square footage, any indication of where the boundaries with the neighbouring plots might be, nor an indicative layout of the internal room divisions. In the normal course of affairs, although builder's Missives are notoriously one‑sided, purchasers and sellers tend to know what it is that they are buying and selling. Purchasers know that the developers can change the plans, as indeed happened in this case where bedroom one (the correct one) became a little bit smaller by the time it was actually built. The plans themselves bear a legend which confirms that:-

"The plot layout is intended for illustration purposes only and may change for example in response to market demand. Consequently it should be treated as general guidance and cannot be relied upon as accurately describing any of the specified matters described by any owner made under Property Misdescriptions Act 1991"

 

[20] The defenders submissions on the question of uncertainty commenced with the statement of the general rule which is that the burden of proof lies on the party asserting the positive, and that in relation to the enforceability of the contract it was the pursuers who were asserting that there is an enforceable contract and in particular that there is agreement on all the essentials of a contract for the sale of land. Thus, according to the defenders, the onus lay on the pursers to set up the contract. In passing they accepted that on the issue of misrepresentation the onus was on the defenders. I have already determined that this onus they failed to discharge.

 

[21] The defenders submitted that in order to have a concluded contract the parties must agree on the essentials necessary to constitute the contract. As was said by Viscount Dunedin in May and Butcher Ltd v The King, at page 21:- "To be a good contract there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties". Further there must be certainties about what has been agreed and what is to be done by the respective parties. As Gloag (supra) states "In order to create a contractual obligation an agreement must be reasonable definite. Vague general understandings cannot be enforced. The test as to whether or not the terms of a contract are sufficiently specific is whether or not it will be possible to enforce the contract be specific implement." As was said by Lord President Inglis in McArthur v Lawson:-

"A contract which cannot be enforced by specific implement, insofar as regards its form and substance, is no contract at all and cannot form the ground of an action of damages. There are screeds of contracts which give grounds for actions of damages, but not of implement, but that is not from defect of form but from considerations outside of a written instrument...a contract in order to found an action must be complete, and as much so to found an action of damages as an action of specific implement."

 

[22] One of the essentials for a contract for the sale of heritage is the subjects of sale, and, according to the defenders, the Missives must therefore contain a definite description identifying the subjects to be sold. In the absence of such description, there will not be a binding contract (see Grant v Peter Gauld and Co, Bogie v Forestry Commission and Halliday, Conveyancing Second Edition).

 

[23] Considering the Missives themselves, contained in 5/1 and 5/2 of process it is clear that the offer, although submitted on behalf of the defenders, was a pro-forma offer which had been prepared on behalf of the pursuers and was sent by the pursuers solicitors to the defenders solicitor to be signed and returned. In the offer the subjects are described initially as "that flatted Dwellinghouse being Plot 44 of your development at Langtoun Maltings, Kirkcaldy" which is only a general description. However this is subject to the terms set out in the pro-forma offer which was annexed. Clause 2.1 of the pro-forma offer provides that what is to be purchased is "the Plot" which is defined in clause 1.1(o) as "the Dwellinghouse together with any garden ground, car parking space and/or garage pertaining exclusively thereto known by the plot number specified in the schedule." "The Dwellinghouse" is further defined in clause 1.1(m) as "the Dwellinghouse and garage if applicable of the house type specified in the Schedule and shown on the companies site layout plan (which plan is demonstrative only and may be varied by the company as circumstances require) erected or to be erected by the company as part of the development and where the context so admits or requires such fixtures and fittings therein as are included in the sale".

 

[24] The defenders counsel then sought to put the full definition of "Dwellinghouse" into the definition of "the Plot" and adding in the terms from the Schedule to give the extended definition of "the Plot" as "the Dwellinghouse and garage if applicable of House Type F T 12 (second floor) and shown on the companies site layout plan ( which plan is demonstrative only and may be varied by the company as circumstances require) erected or to be erected by the company as part of (the housing development at Langtoun Maltings, Kirkcaldy) and when the context so requires such fixtures and fittings therein as are included in the sale together with any garden ground car parking space and/or garage pertaining exclusively thereto known by Plot Number 44."

 

[25] It was submitted on behalf of the defenders that this description provides no definite description of the subjects. There is plainly no description of the boundaries of the subjects. It has to be remembered that effectively the defenders were purchasing a slice of air, this being a second floor flat in a block of flats yet to be built. However it is said that the dwellinghouse "is shown on the company's site layout plan" but this provides no assistance since it is expressly provided that the plan is demonstrative only and therefore does not define the boundaries of the property for the purposes of the Missives. In any event it is not entirely clear from the Missives which plan is being referred to, or which version of the plan is being used. If it had been intended that the plan was to be an essential part of the Missives then one would have expected a copy or an extract to be sent with the pro-forma offer, or at least for it be clearly identified. In any event evidence was led that production 5/14 was the version of the site layout plan available in January 2008. There was no evidence of what layout plan was available in March 2008, at the time Missives were concluded. However, according to the defenders, 5/14 is of no assistance because it only gives a general location of Plot 44. It does not give the precise boundaries of the plot or even the floor area. It does set out the areas and boundaries of the plot from which houses were to be built, but there is no attempt to set out any of the boundaries of the tenement properties.

 

[26] Further and in any event not only is the definition of the subjects and the Missives lacking in any boundaries, it is unclear precisely what is included in the subjects to be sold. The definition refers to "any garden ground, car parking space and/or garage pertaining exclusively thereto." However there was nothing to say whether or not these are included in the subjects and if so to what extent. The site layout plan shows car parking spaces and garden ground adjacent to the block which includes Plot 44, but it does not show whether or not these are allocated to particular plots. The price lists which were held by the pursuers show a parking space allocated to each flat. Accordingly it appears that each flat was to have a car parking space although the exact nature of the right to the car parking space remains unclear. It is clauses 2.1 and 1.1(o) which provides the definition in the Missives of what is being sold. If this definition and the plan (which is in any event is not definitive) do not state clearly whether or not these are included then there can be no definite description of the subjects. It was also submitted that a proper definition of the common parts of the block would be an essential part of the definition of any tenement property. However there is no definition of common parts in the Missives beyond clause 1.1(f), which is also uncertain.

 

[27] The definition in the Missives also refers to house type F T 12 (second floor). From this it can be assumed that the property purchase is indeed on the second floor but there is no further definition of house type F T 12. The pursuers suggest that production 5/12 which was shown to Mrs McLean on 26 January 2008 provided a definition of house type F T 12, but this cannot be the case as this document is not referred to in the offer. Clause 9 of the offer provided that "the purchaser (McLean's) acknowledge that none of the visual depictions contained in any sales brochure or any note of material to be used or any verbal descriptions provided by the company or the company's representatives can be relied upon save insofar as they are contained in the Missives". Clause 14 of the offer also provided that the Missives formed the entire agreement between the parties and excluded reliance in any representation (whether written or verbal which is not specified in and does not form part of the Missives). According the pursuers could not rely on any document not referred to in the Missives as defining the extent or make up of the subjects. Accordingly production 5/12 could not form any part of Missives and in the absence of any definition in the Missives of house type F T 12 the reference to this is meaningless. Returning to the extended definition set out in paragraph [24] above if one goes through the definition deleting those parts which have no meaning the definition of the plot becomes simply "the dwellinghouse...second floor...part of the housing development at Langtoun Maltings, Kirkcaldy...together with any garden ground car parking space and/or garage pertaining exclusively thereto known by Plot Number 44". This description gives no more than a general location of the subjects. It gives no indication of the boundaries of the site or the subjects. It gives no precise indication of what is included in the subjects. There was nothing built at the time of the Missives and the subjects could therefore could not be defined by reference to any existing physical boundary. It follows that in the absence of a proper binding description or plan incorporated into the Missives, there is no proper description of the subjects.

 

[28] The pursuers, or presumably their solicitors, drafted the form of offer. Thus the difficulties, if any, with the Missives are of their making. Inclusion of a definitive plan would not have been difficult and such plans must have been available to the pursuers at the time. It is clear however that the pursuers sought at every opportunity to avoid committing themselves to anything in particular. All plans, drawings, sales particulars etc were to be demonstrative or indicative only and were not to be part of the contract or to bind the pursuers. The tendency of builders Missives to attempt to "denude the purchaser of rights" has been noted elsewhere (Halliday Conveyancing 2^nd Edition paragraph 3-140). The defenders submitted that in this case the pursuers have gone so far down this path that there is nothing in the Missives to state what it is the pursuers were ultimately obliged to convey to the defender. Having declined to commit themselves to delivering any specific property the pursuers cannot expect the defenders to be obliged to implement the contract.

 

[29] The defenders concluded by attempting to apply the test in McArthur as to how one would frame a detailed crave for specific implement. They submitted that it would be impossible from the material in the Missives to frame a description of the property to be included in a crave for implement of the Missives. In all the circumstances there was no definite description of the subject of sale in the Missives and accordingly the Missives did not constitute an enforceable contract. The defenders were accordingly entitled to be assoilzied from the craves of the writ.

 

[30] Responding to the defenders case based on the missives being void from uncertainty, the pursuer's counsel immediately referred to various authorities. In particular Professor McBryde at paragraph 5.21 confirms that it is not "necessary that the terms of a contract be 'certain'...precision of expression is not required...a court would depart too far from the standards of the commercial community if it refused to enforce a bargain merely because there was doubt as to its meaning...therefore, the first stage is to construe the contract, according to the normal laws of construction, and this may provide a solution to problems caused by drafting errors."

[31] Moving from the general law of contract into conveyancing practice, one notes that Gretton and Reid point out that "only rarely is a full conveyancing description given in Missives" and "the only requirement is that a property is described in such a way that it can be identified" (para 12-26).

 

[32] It was submitted that it was not necessary to look at the Missives as if they were a disposition, because after all it would be the disposition that transferred the property and created the necessary document for land registration. However in the present case the Missives do sufficiently define the properties by reference to a plan. Further the background knowledge of the parties could be inferred so as to confirm that there was a mutual understanding of what was meant by the Missives. There had been no negotiations on these Missives, so presumably parties knew what it was that they were contracting to buy. Taking this with the presumption on enforceability, that would tend to suggest that the Missives were valid and not void for uncertainty. Counsel referred to R & J Dempster v Motherwell Bridge & Engineering Company, Brown v Gould, and the comments of Lord Hodge in R & D Construction v Hallam Land Management Limited. Lord Hodge said at para 39:-

"While the courts require legal certainty and do not enforce an agreement if parties have not sufficiently formulated an intention, judges have repeatedly stated the position that where they are satisfied the parties intended to enter into binding obligations they should attempt, insofar as is consistent with essential principal and binding precedent, to give effect to the agreement and not be the destroyer of bargains. ...more recently Lord Steyn has stressed that, when considering contractual problems, the courts should seek to uphold the reasonable expectations of honest men."

It was submitted that this was the correct approach to follow.

 

[33] Moreover, esto a given contract's description of an essential element, such as the subjects, is inadequate (which the pursuers deny in this case) extrinsic evidence is admissible to assess whether a written contract is, in context, too vague to be enforced. In the particular context of Missives, Gretton and Reid state that "it is no objection to a description that it needs to be supplemented by extrinsic evidence...in practice, disputes about the definition about the property are uncommon, but where a dispute does arise extrinsic evidence can be used."

 

[34] What then is the definition of the subjects? The joint minute of admissions agrees as follows:-

"10. Without prejudice to the defenders fourth and fifth pleas in law, by Missive letters of 28 and 31 March 2008 the pursuers bore to agree to sell and the defenders bore to agree to purchase the subjects forming and known as Plot 44 Langtoun Maltings, Kirkcaldy at a purchase price of £124,950.

11. 5/1 and 5/2 of process are true copies of the Missive letters of 28 and 31 March 2008

12. The Missives described the subjects as 'that flatted dwellinghouse being Plot 44 of your development Langtoun Maltings, Kirkcaldy".

 

[35] Turning then to the Missives themselves paragraph 1.1(o) of the terms and conditions attached to the defenders agents letter defines "the Plot" as "the dwellinghouse together with any garden ground car parking space and/or garage pertaining exclusively thereto known by the plot number specified in the schedule" while the schedule identifies the "plot number" as "44". The joint minute continues at para13: "At condition 1.1(m) the Missives further define the dwellinghouse as 'the dwellinghouse of the house type specified in the schedule'". The detailed terms attached to the letter of 28 March continue at page 2 "and shown on the company's site layout plan...directed to be erected by the company as part of the development".

 

[36] The evidence was that the layout plan was 5/14 of process and was available to and seen by both sides at the meeting on 26 January. It refers to "proposed residential development Overton Road, Kirkcaldy Scotia Homes" and plainly shows the shape and attitude of the block to which Plot 44 was to form part (FBK 3) in relation to amongst many other things, Overton Road and identifies the location of the subjects within that block with the words "Plot 44 (second)". The joint minute goes on at paragraph 14 "the schedule to the Missives defines house type as 'F T 12 (second floor)'". It should be noted that on the reservation form 5/10, that the parties were content to use "Langtoun Maltings, Plot Number 44, house type F T 12 SF" as sufficient description for its purposes. Accordingly both parties had the plan 5/12 of process on and from 26 January 2008. It was known to and within the contemplation of both parties from the first meeting until conclusion of the contract and thereafter. It was understood on both sides to represent what was proposed to be built (although if Mrs McLean's evidence had been accepted, she was expecting it to built as a three‑bedroom property). The parties contracted in those terms, because the plans bears to show the layout of three flats at Overton Road, identified as Plot 42 GF, Plot 43 FF, Plot 44 SF because the plan has at its foot the words "flat type 12" and what this plan shows is a detailed view of the flat in plan, complete with entrance stair and lobby, external walls, party walls, internal walls, lengths of individual rooms walls, how doors were are to be hinged, where there was accommodation for fitting and even the detail of the electrical specification and where furniture might be placed. It also refers the reader to further documents containing further details by the legend "Refer to 4000 series block drawings for individual plot details".

 

[37] In the joint minute it was also agreed at paragraph 15 that "On 31 May 2008 the pursuers had not built the dwellinghouse". There was no suggestion that thereafter what the pursuers went on to build differed in any respect from what was shown on the plan 5/12 process.

 

[38] What the Missives disclose, in the context of the documents that were available to the parties, is a certainty about the identification of the plot to be sold; that the plot in this case was to be a second floor flat within a block of three stories; where precisely that block was to be built, in relation to the existing geography and street plan of Kirkcaldy; where both in general and specifically within that particular block the flat was to be; and the fully detailed internal design and layout of the flat, including but not limited to the lengths and angles of the walls both internal and external. Accordingly if all that is to be required is "that the property be described in such a way that it could be identified" that was done.

 

[39] Finally there is another important point which underlines this issue and it is one of principal. If the Missives were truly void from uncertainty, then of course this would potentially cut both ways - the sellers just as much as the buyers would be entitled to refuse to implement such a purported contract. Thus even on the date of entry the pursuers would be entitled to say to the private purchaser that they had changed their mind and have other plans for the property. Indeed when they talk about "this property" neither side can identify what they are talking about. That would just be a nonsense, and would certainly not "fulfill the reasonable expectations of honest men".

 

[40] For all these reasons the defenders pleas should be repelled. The Missives were not void from uncertainty; there had been no misrepresentation.

 

[41] In response the defenders counsel argued that the parties could not look at or use the plan 5/12 in construing the Missives. It was not open to the pursuers to include it, as it was not agreed that this represented what was bought at the time. Mrs McLean said that it was an indication of what was to be built, but not a proper plan. The two sales ladies agreed that it was not a proper plan, and thus it could not be part of the contract.

 

[42] What is the contract? One must draw a distinction between a contract for the purchase of something which already exists, such as buying 22 Acacia Avenue, Kirkcaldy, from the situation where a property does not exist, as in the present case. The Missives therefore must properly identify what the property is, and the law is clear: prior negotiations are excluded. On 26 January the defenders were given a diagram, not a statement of what was being sold, but just indicative of what might be build. It could not be part of the contract. It was thereafter up to the lawyers to define what had been bought and if they failed to do it properly the contract is unenforceable. The pursuers accept that 5/12 is not a contractual document, as its not been incorporated on any basis within the terms of the Missives. However the pursuer wants to interpret it into the Missives, by saying that it defines "F T 12". There was never any agreement that it should be incorporated, it was plainly just part of the information was exchanged between the parties on 26 January. What is in the Missives defines the properties, and the more one looked at the Missives the more confused one would become. Reference is made to a garden but it is impossible to say whether this particular does or does not have a garden. The same applies to parking spaces. One can only test what has been bought by examining the Missives, not the subsequent disposition. Courts should be rigorous in enforcing the boundaries of properties and conditions within Missives. It is unreasonable to have Missives that allow developers to build what they like and call it, for example, "Plot 44" yet hold the defenders liable to implement the Missives. Consequently as one pays for something specific, if it is not proved to be specific, by the principle of mutuality of obligations the defenders are entitled to walk away.

 

Discussion

[43] I will deal with the issue of misrepresentation first. Putting it bluntly, I was not satisfied with Mrs McLean's evidence. I have accepted the evidence of Gillian Nisbet and Dorothy Nesbit. Although Dorothy Nesbit is an employee of the Pursuers, Gillian Nisbet does not have such loyalty, as she has not been working for the Pursuers for some time. I have found it inconceivable that sales staff of the Pursuers could have represented to Mrs McLean that a three-bedroomed property could have been built as Plot 44. I am satisfied that Mrs McLean intended to buy Plot 44, that it was explained to her that it was a two-bedroomed property, and that the plan that she was shown (5/12) was shown to her for the purpose of explaining the layout of a two-bedroomed property. The fact that it also displays a third bedroom (marked as bedroom 1 (and referred to earlier as "second" bedroom one)), situated beyond what is clearly shown as a dividing and structural wall may be considered unfortunate, but it is not of itself a misrepresentation. I am satisfied that Plot 44 was always designed to be, and indeed was built as, a two-bedroom property. I can only assume that Mrs McLean, in seeing the third bedroom on the plan, has for whatever reason convinced herself that she was buying a three-bedroomed property.

 

[44]. However, even if Mrs McLean was clear at the point at which she left the sales portacabin that she was buying a three-bedroomed property, she must have been disabused of that notion following the discussion which she had later that evening with her husband. The question then arises as to why she did not do anything to clarify the situation, or put her solicitors on notice that this might be an issue. Instead, she chose to ignore her husband's concern and remain silent. Thus, her solicitor on receiving the offer had no reason to suspect that his client was buying anything other than Plot 44. She had not supplied the solicitor with a copy of the plan (5/12). Had she done so, and had she mentioned to him that she had bought a three-bedroom flat, then I have no doubt that he would have raised the issue with the Pursuers prior to the conclusion of the missives, and neither party would be in the position that they are at present. One may wonder why a solicitor, in taking instructions for the purchase of a property at a new-build development, does not ask the exact nature of the property being purchased, but that is not a question for this process.

 

[45] Accordingly, the case based upon misrepresentation fails.

 

[46] I now go on to the missives themselves and the issue of whether or not they are void from uncertainty. At the outset, I would comment that the Pursuers or perhaps those acting for them, have not been overgenerous with their description of the property to which the missives relate. The question is whether the missives are or are not too vague in describing what the Pursuers have contracted to build, and the Defenders have contracted to purchase. In answering that question, the court must take account of the line of authorities that requires them "not to be the destroyer of bargains", and that they should meet "the reasonable expectations of honest men". In the present case, it can be accepted that we are dealing with "honest" parties. Although Mrs McLean has been found not to be credible or reliable in her evidence on alleged misrepresentation, I do not find her to be dishonest. Equally, there have been no allegations of any underhand or dishonest actings by the pursuers. Accordingly, it is the reasonable expectations of these parties that are to be met.

 

[47]      In the normal situation of property purchase, a prospective purchaser sees a property that they might be interested in. An offer follows, and it might be answered by a qualified acceptance. Eventually missives are concluded for the purchase of the property that was viewed at the outset. At entry, with the price paid, a disposition is delivered and title registered. The Keeper issues a certificate. Any dispute about what has or has not been included in the bargain is decided by reference to the Registered Title. In the present case, as in all cases where a property is purchased "off plan" from a builder or developer, there is nothing to view other than some documents. No doubt a prospective purchaser thinks they know what it is that they have bought. But they cannot be absolutely certain until the property is actually built. This is because the developer reserves the right to vary the design and size of the individual properties within the development. And frequently what is finally produced is different from what was envisaged. In the present case, the designs changed as time passed, to the extent only that room sizes varied. The present case has the added oddity of possible confusion about the number of bedrooms to be included in the reserved plot, number 44. I have already held that the purchasers were at best mistaken in their belief that there were to be three bedrooms, but it puts the importance of the missives into sharp relief. One cannot go back to the property to view it again as one can do with existing buildings, although one can look again at the plans, or visit the site to see how things are coming on. The argument advanced by the defenders in this case is that it is not possible to understand what has been bought by examining the missives. Thus they are void. The pursuers argue that they are valid, sufficiently clear, and in any event it is possible to look at some extrinsic evidence to assist any shortcomings there might be in the missives.

 

[48] The missives themselves are made up of 5/1 and 5/2 of process. The first production is a letter from Andrew Baillie, solicitor, on behalf of Mr & Mrs McLean dated 28 March 2008 address to Messrs Thorntons, acting on behalf of Scotia Homes (South) Ltd which is a straightforward offer to purchase "that flatted dwellinghouse being plot 44" on the terms and conditions contained in "your" (the pursuers) pro-forma offer. It is said in the offer that it is open for acceptance in writing to be received by 31 March 2008. The pro-forma offer has been prepared by Messrs Thorntons on behalf of the pursuers. It sets out over a number of paragraphs what is meant by various words, expressions and descriptions, describes the purchasers obligations, the sellers obligations and by schedule at the end, names of the purchasers, the plot number, the house type and the price together with any additional conditions. The acceptance from Messrs Thorntons is dated 31 March 2008 and is 5/2 of process. These missives described the subjects as "that flatted dwellinghouse being plot 44 of (your) development at Langtoun Maltings, Kirkcaldy".

 

[49] What exactly is plot 44? In paragraph 1.1(o) of the terms and conditions attached to the missives, there is a definition of "the plot" as "the dwellinghouse together with any garden ground, car parking space and/or garage pertaining exclusively thereto known by the plot number specified in the schedule". The schedule itself is defined at paragraph 1.1(t) as "the schedule annexed and signed as relative hereto"; within that schedule there is the identification of a plot number as being "44". The joint minute lodged by the parties agrees at paragraph 13 that "condition 1.1(m) the missives further defined "the dwellinghouse" as "the dwellinghouse of the house type specified in the schedule". By paragraph 14 we know that the schedule defines house type as FT 12 (second floor). Finally with reference to the missives condition 1.1(m) continues by making reference to the pursuers' site layout plan. Parties were agreed that 5/14 of process was a site layout plan and was seen by Mrs McLean at the meeting in the portacabin on 26 January which plan plainly shows the shape and attitude of the block to which plot 44 was to form part and identifies the location of the subjects within that block. Whether it was the only such plan was unclear; however no other site layout plan was ever produced or referred to, and I am prepared to accept, on the balance of probabilities that 5/14 is the site layout plan referred to in the missives.

 

[50] I am not satisfied that on looking only at the missives, and the site layout plan (5/14) that what is being purchased ("plot 44") is completely and sufficiently described. Such a description would obviously follow from the Disposition handed over in return for the price. But the missives are the contract, and there is some force in the defenders argument that it would be extremely difficult to frame an action for specific implement having regard only to the terms of the missives. The question therefore is whether or not that is an end of the matter, or whether, as the pursuers maintain in the alternative, that extrinsic evidence can be used to clear up any possible uncertainty as to the terms of the contract. It is helpful to consider the authorities on this point.

 

[51] It has been pointed out by the learned authors in Gretton and Reid that "only rarely is a full conveyancing description given in missives" (Conveyancing 3^rd Edition Paragraph 4-03) and paragraph 12.26 of the 4^th Edition that "the only requirement is that the property be described in such a way that it can be identified". In this regard it may be enough that the identification is given as plot 44, of house type FT 12 (second floor). However, that on its own does not let a prospective purchaser know exactly what it is that is being purchased. Both parties referred to the case of Grant v Peter G Gauld & Co. In that case at page 258 the Lord Justice Clerk (Wheatley) states:

"There is no doubt that a definite description of the heritage which is being offered for sale is essential to a valid contract, and must be contained in the missives of offer. The general law on the subject was canvassed at some length by the sheriff and I need not repeat it. At the end of the day the issue turns on the wording of the missives of offer. The sheriff proceeds on the basis that, as there were doubts as to its meaning, it had to be construed contra proferentes, who were the defenders. Obviously the first and basic question is - how should that introductory paragraph be construed? Is it sufficiently clear to identify fully what is being offered, or is there an ambiguity in it which requires extrinsic evidence for express resolution? The pursuers' interpretation means that the 12 acres cover the existing ground on which the quarrying operations are being carried on and its surrounds. The interpretation argued for by the defenders means that the 12 acres relates to the surroundings. There is accordingly a substantial area of difference between the two sides. On a purely grammatical construction of the words in issue, I would attribute the qualification imposed by the words "extending to 12 acres" to the words immediately preceding that qualification namely "and the surroundings thereto". That interpretation leads, in my view, to the further construction of what was being offered were two distinct parcels of heritage, namely the ground at present being quarried and the surroundings thereto extending to 12 acres. The first condition attached to the offer was in these terms:- "the actual boundaries will be agreed between you and our client". Counsel for the defenders laid great stress on this as demonstrating that the actual limits of the ground offered had not been defined and required an agreement that they should be defined by some future agreement between the parties. That could not constitute the precision required for such an essential factor in a contract of heritage, and acceptance of such an indefinite offer could not constitute a concluded contract of heritage. I agree with that submission, which is determinative of the whole issue".

 

[52] It can be seen that in that case, the court was dealing with missives over which there was a dispute, namely whether the 12 acres referred to are in the offer included or did not include, the quarry itself. Such was the uncertainty, that it was held that the missives were not fit for their purpose and thus void. The question of whether or not extrinsic evidence could be used did not arise. The present case however is in a different situation. There is no ambiguity of what has been bought, namely plot 44 of the Langtoun Maltings Development. It seems to me therefore that if there is any doubt as to what exactly constitutes plot 44, then extrinsic evidence can be considered. Thus, as the pursuers maintain, the court is entitled to look beyond the missives (5/1 and 5/2) and the site plan (5/14). One can also look at the layout plan 5/12. This gives a clear indication of what was intended to be built as and conveyed, as plot 44. It matters not that Mrs McLean claims to have misunderstood the plan, or has had it misrepresented to her. All those giving evidence confirmed that 5/12 showed what was to be built as plot 44, or an approximation thereof allowing for architectural and building alterations and improvements as matters progressed. It was submitted by the defenders that the plans, such as 5/12, were of no significance at all, and could not be referred to, for three reasons. The first reason is that the missives themselves excluded any reference to other documents. In this regard paragraph 14 of the offer states "it is expressly declared and agreed that the contract forms the agreement entered into by the company and the purchaser and no reliance has been or will be placed by either the company or the purchaser in any manner or way whatsoever upon any representation, warranty or undertaking given by or on behalf of either the company or the purchaser, whether written or verbal, which is not specified in or does not form part of the contract". Additionally at clause 9 the offer states "the purchaser acknowledges that none of the visual depictions contained in any sales brochures or any note of materials to be used, or any verbal descriptions provided by the company or the companies representatives can be relied upon save in so as far as the are contained in the contract. The company's sales brochures are general illustrations and may be subject to change from time to time and as a result their accuracy is not guaranteed by the company and is not to be relied upon by the purchaser". The defenders argued that these two paragraphs, when taken together, precluded any reliance to be placed on any extrinsic evidence, but that is not a proposition that I can accept. Given that the missives referred to the sale of plot 44, it is quite permissible to look at further documents, produced by the pursuers, to see exactly what is contained in plot 44. The plan 5/12 of process is such a plan. In any event, I am not satisfied that 5/12 falls within the parameters of clauses 9 and 14. It is a plan, not a sales brochure, nor is it a "representation warranty or undertaking".

 

[53] The second reason for not relying on any extrinsic evidence, according to the defenders, was that each of the plans contained a disclaimer as to accuracy and held out the possibility of subsequent variation. Thus, because 5/12 could not be said to be a final document, it could not be used to determine exactly what was defined by plot 44. This argument I also reject, on the basis that any alterations to 5/12 are of such minor consequence as to be de minimis, involving the moving of a wall by a few centimetres only which had no material effect upon the eventual property erected.

 

[54] The final reason for not examining extrinsic evidence, according to the defenders, was that the missives are conclusive of themselves. The pursuers accept that 5/12 is not a contractual document, but the pursuers seek to interpret it into the contract, arguing that it makes reference to House Type FT12. However, it was just part of the information that passed between the parties, and cannot be considered as anything else. All the court can consider is the missives. In this regard I accept that courts should be rigorous in enforcing the boundaries of properties, and conditions in missives. If all that was available was the missives and nothing else, then I would hold them as void. But we have 5/14, specifically referred to and incorporated into the contract. That gives considerable points of reference. As Lord Eassie said in NJ&J McFarlane (Developments) Ltd v MacSweens Trustees, at p 624, when considering the description of part of the subjects as "approx 8.5 acres of rough undeveloped land lying to the east of the above property" and holding it "too uncertain for the constitution of a valid contract of sale" not only because of the use of an approximate measure of the land, but also because of "the absence of specification of the boundaries of the land or reference to an objective factor, such as occupation, whereby the extent may be objectively settled by evidence of existing facts". In the present case, there are existing facts which can assist in objectively settling the boundaries, namely 5/12. Thus the court can consider extrinsic evidence, such as 5/12, to finalise any difficulties that may have arisen with the missives. The plan 5/12 has reference within itself to House Type FT12. The pursuers argued that another reason for allowing examination of 5/12 to assist in defining the property was because the Missives contained reference to "House Type FT12", as did 5/12. That "cross-reference" allowed one to look at 5/12 for any further detail that might be necessary (esto it was necessary) to determine the full extent or definition of the property purchased. I accept that proposition. The clear reference to FT12 on 5/12 ties it in to the Missives, as the sort of extrinsic evidence envisaged by Lord Eassie in McFarlane.

 

[55] The defenders took issue with uncertainty in the Missives regarding garden ground, garages and parking bays. I do not consider this to be significant. The Missives, at clause 1.1(m) indicate that the purchaser will receive a dwellinghouse "(and garage if applicable)". There was no representation anywhere that there was to be a garage attached or allocated to Plot 44. Similarly, at clause 1.1(o) to "Plot" there is mentioned "the dwellinghouse together with any garden ground, car parking space and /or garage pertaining exclusively thereto known by the plot number specified in the schedule. There is no documentation other than the price list that gives any information on car parking spaces, although they can be clearly seen on site plan 5/14 as being adjacent to the block containing Plot 44. Indeed the price list 5/16 indicates that the plot has a such a space. Thus the only area of potential uncertainty relates to "any garden ground". The defenders knew that they were purchasing a second floor flat. No garden ground was shown on 5/14, or referred to elsewhere as pertaining to plot 44, or any Plot. The Missives do refer to Common parts of the Block, and of the Development, and by clause 3 the purchaser is made aware that these will be defined in clauses in the subsequent disposition. It is, after all, the defenders offer to purchase, albeit drafted initially by those acting for the pursuers. No doubt the terms thereof could have been amended or clarified by the defenders, if desired. They did not do so. They cannot now seek to hide from their own obligations by reference to perceived (but not real) failings in their offer.

 

[56] Accordingly I am satisfied that having regard to the totality of the missives, which includes by reference the site layout plan 5/14, and looking additionally at 5/12, as a plan available at the time the property was reserved, prior to the missives being concluded, there can be no doubt as to the subjects purchased, and therefore the missives are valid and enforceable. Putting it another way, they are not void for uncertainty. The parties knew what had been reserved, and what would be built, and indeed what was built was in accordance with the missives and the various plans referred to.

 

[57] I was not addressed to any extent on expenses and have therefore fixed a hearing on that matter. I should also record my gratitude to Counsel for their helpful written, and oral, submissions, and prior lodging of authorities.