United Kingdom House of Lords Decisions

At delivering judgment on 21st February 1979,—

LORD DIPLOCK .—My Lords, I have had the advantage of reading in draft form the speech prepared by my noble and learned friend, Lord Fraser of Tullybelton. For the reasons that he gives I agree that the appeal should be allowed.

LORD EDMUND-DAVIES .—My Lords, I have had the advantage of reading in draft form the speech prepared by my noble and learned friend, Lord Fraser of Tullybelton. I am in respectful agreement with it, and accordingly concur that the appeal should be allowed and in the order he proposes.

LORD FRASER OF TULLYBELTON .—My Lords, this is an action by sellers (respondents in the appeal) for specific implement by purchasers (the appellants) of their obligation under missives to pay the agreed price of £150,000 in exchange for a valid executed disposition of the subjects of sale. The missives consist of an offer on behalf of the appellants by their solicitors, dated 20th December 1973, to purchase the subjects on the conditions stated in the offer, and an unqualified acceptance on behalf of the respondents by their solicitors, dated 24th December 1973. The appellants refused to pay and on 24th September 1975 they resiled from the contract. They say that the subjects are burdened with rights in favour of a neighbouring property and that they were unaware of the burdens when the missives were exchanged. The respondents at first maintained that they had informed the appellants of the existence of the burdens before the contract was entered into, but at the end of the proof the respondents' counsel conceded that that had not been proved. Two questions now arise. The first is whether the appellants were bound to accept a title which included the undisclosed burdens. If not, the second question is whether they have waived their right to refuse the title.

The subjects are described in the offer as "forming 243A and 245/249 High Street, Kirkcaldy, together with the ground effeiring thereto and being the subjects shown within red boundary lines in the plan"annexed to the offer. They lie to the north of High Street and form a rough rectangle with its south frontage running along the High Street, except that a portion at the south-west corner is not included. The excluded portion, which is roughly square, is No. 243 High Street, occupied as a shoe shop belonging to Messrs. William Smith, Shoe Merchants Ltd. The subjects are only partly built upon. At the south-east corner there are buildings forming Nos. 245/249 High Street. These now form one shop, which at the date of the contract and of the appellants' resiling, was occupied by a butcher named Mr Stahly. It extends along the High Street for approximately 45 ft westwards from the eastern boundary of the subjects. Immediately to the west of this shop is a passage approximately 10 ft wide which is included within the subjects of sale, and beyond the passage is the excluded shop, No. 243. Behind and to the north of No. 243, and separated from it by the passage, is No. 243A, which was occupied by Mr and Mrs Sharkey as a sauna bath under a lease from the respondents not due to expire until 27th August 1983. The lease included a right of access to No. 243A from the High Street for vehicles and pedestrians by the passage to which I have referred until such time as a proposed new service road along the northern boundary of the subjects should be in operation. The service road was required because of a plan to "pedestrianise" the High Street.

The dispute which has led to this litigation is centred on the passage. It arises because in the title offered by the sellers for No. 243A, certain rights, including a right of access by the passage, are reserved in favour of No. 243, and the owner of No. 243A is precluded from building on the ground forming the passage. The area of the passage is not large, but it is valuable because it includes about 10 ft. Of the main shopping frontage on High Street, and of course runs back behind that frontage for the whole depth of the shoe shop, No. 243. The restrictions were imposed in a disposition granted in 1924 by the trustees for the firm of William Smith to Miss J. C. Birrell and others and are as follows:

"The subjects hereby disponed [that is No. 243A and adjacent ground] are so disponed, and shall be accepted and held … with and under the reservation of a right to us, as proprietors of said excepted subjects, [that is No. 243] and to our successors therein of first access to said excepted subjects at all times when necessary by the passage or entrance and footpath on the east and north of said excepted subjects, as the same are coloured yellow on said plan, and second of erecting at any time on the ground towards the north-west corner of said excepted subjects a staircase …; and it is further specially provided and declared that our said disponees and their foresaids shall not be entitled to erect any buildings on the ground forming the said passage or entrance and footpath and coloured yellow on said plan, which reservations and provisions are hereby constituted real burdens on the subjects hereby disponed…"

The conditions in the appellants' missive offer of the 20th December 1973 included the following:

"2. Entry and vacant possession shall be given to the said subjects (with the exception of that part leased to Mrs Margaret Sharkey and George Sharkey forming 243A High Street, Kirkcaldy) on the 1st day of March 1974.

3. In exchange for payment of the price there will be delivered a valid executed Disposition in favour of our clients or their nominees and valid marketable title with clear Searches in the Sasine and Personal Registers and the Register of Charges for the prescriptive periods will be delivered or exhibited.

4. It is understood that your clients will terminate the Minute of Agreement entered into between yourselves and Charles Frederick Stahly and that vacant possession of the subjects occupied by Mr Stahly will be given at the date of entry.

5. …

6. There is nothing in the titles of the said subjects which will prevent demolition and redevelopment."

The first question is one of construing the conditions in the missives. Were the appellants in terms of the missives entitled to require a title free from the burdens in favour of Smith? The First Division by majority, consisting of the Lord President and Lord Cameron, answered that question in the negative—that is in favour of the respondents. Lord Avonside would have answered it in favour of the appellants. The majority held that the sellers' obligation to convey the subjects free from undisclosed burdens was regulated solely by condition 6 and that that condition superseded any obligation implied by the general law or expressly imposed by condition 3 of the offer. The majority further held that, in the words of the Lord President, condition 6 contemplated only "burdens which are obstacles which would defeat any worthwhile or profitable redevelopment of the subjects of sale" and that the appellants had not proved that the burdens in favour of Smith were obstacles which would render any worthwhile development impracticable. I agree that that was not proved, and indeed no attempt was made to prove it, but I do not think that matters because I am with respect unable to agree with the majority on the other two points. I agree with Lord Avonside's construction of condition 6, and with his view that condition 6 did not prevent the appellants from continuing to rely on condition 3 or (I would add) on the normal implied condition that a seller is bound to convey the subjects free from burdens that were unknown to the purchaser at the date of the missives if these burdens materially diminish the value of the subjects.

I begin by considering the words of condition 6 itself. It provides that there is "nothing" in the titles that will prevent redevelopment. In my opinion the Dean of Faculty was right in saying that the condition had not been satisfied here because there was something in the title offered by the respondents which prevented redevelopment, namely the restriction against building on the passage. The restriction has the effect of preventing redevelopment of the part of the subjects to which it refers and it is therefore contrary to condition 6. True, the restriction does not apply to the whole subjects, but it does apply to over one-sixth of the most valuable frontage and it cannot be disregarded under the de minimis rule. This construction depends upon a literal reading of condition 6, and does not involve reading in any words not already there. Not only is it literally correct but it gives to condition 6, in the context of the offer, a meaning which is satisfactory and which does not require condition 3 to be treated as superseded. The relevant part of condition 3 is the first, which requires delivery of "a valid executed disposition" in favour of the appellants. That clearly means a disposition of the subjects contracted to be sold—that is of the whole subjects. A disposition which included only a part of the subjects, or which included the whole subjects under a burden, would not comply with the sellers' obligation. This part of condition 3 does no more than express the normal obligation which is implied upon any seller of heritable property, in the absence of express stipulation to the contrary. The sellers' obligation is "to give a valid disposition to a free and unfettered subject, and it is a subject totus teres atque rotundus, which he must give. Now he does not perform this, if he only gives the subject affected with all these burdens"—per Lord Balgray in Urquhart v. Halden (1835) 13 S. 844, 849. Any undisclosed buiden which materially diminishes the value of the property, will entitle the purchaser to resile—see Smith v. Soeder (1895) 23 R.60, M'Connett v. Chassels (1903) 10 S.L.T. 790, Menzies Lectures on Conveyancing (4th Edition) 930. The purchaser is probably bound to allow the seller a reasonable time to cure any defect in title or remove any restriction—see Urquhart v. Halden —(supra), Carter v. Lornie (1890) 18 R. 353—but no question of reasonable time arises in the present case, because the respondents' attitude all along was that the burden in favour of Smith's, having been disclosed before the contract was made, was not one that they were bound to remove, and they did not attempt to remove it. That being the obligation which rested upon the seller in this case, either under condition 3 or by implication of the general law, it seems to me most improbable that the appellants intended, by including condition 6 in their offer, to cut down the obligation to their own disadvantage. It is surely more natural to read condition 6 as meaning that anything in the title which will prevent redevelopment is to be deemed to be material, even if it would not materially affect the value of the subjects to a purchaser who did not intend to redevelop them. Bearing in mind that both parties to this contract were companies engaged in property development, and that the appellants were, as the respondents knew (see Condescendence 3), buying the property for the purpose of redeveloping it, nothing could be more natural than that they should stipulate that, if there should turn out to be anything however apparently unimportant in the title preventing redevelopment, that would be fatal to the contract. That is what I think they did by condition 6. It is, I think, what Lord Avonside had in mind when he suggested that condition 6 might be treated as a glossary for condition 3.

I note in passing that the provisions in condition 3 for delivery of "valid marketable title" and "clear searches" seem to me to have no relevance. The former provision merely means that the title, so far as it goes, must be so clear as to protect [the purchaser], not only from eviction, but also from the risk of reasonable challenge"—see Encyclopedia of the Laws of Scotland vol. XIII para. 390. The expression "clear searches" means, I think, clear of financial encumbrances such as bonds secured on the subjects.

The Lord President said that no search for the prescriptive period would have disclosed the burden with which this case is concerned. With respect, I doubt whether that is accurate, except in a very narrow sense. It is true that the burden is set out at length only in the disposition of 1924, which is outwith the prescriptive period, so that its precise terms would not have been disclosed by a search for the prescriptive period. But it is validly referred to in a disposition of No. 243A granted by the Secretary of State for Scotland to Mr Stahly dated 10th November 1970 and recorded 18th November 1970, well within the prescriptive period. So a search for that period would have revealed that there was burden and would have directed the attention of the searcher to the deed of 1924 for its precise terms.

As the respondents no longer maintain that the appellants were aware of the burdens in favour of No. 243 when they entered into the contract, it follows that they are entitled to refuse the title offered to them, unless they have barred themselves by their conduct from doing so. I pass therefore to the issue of waiver. This issue has been raised in two slightly different forms during the progress of these proceedings. When the record was closed, the pursuers' third plea-in-law was that the defenders were personally barred from resiling from the contract and that plea, along with the pursuers' first plea for implement, was sustained after a proof by the Lord Ordinary (Lord Stott). The appellants reclaimed and, in the First Division, it appears that the respondents did not support the Lord Ordinary's reasoning on the subject of personal bar, but they were allowed to amend their third plea-in-law by adding a reference to waiver, and the plea as amended was, in effect, sustained by the Division. The plea in its amended form now reads:

"3. The defenders being personally barred from resiling from the contract on the ground stated in Condescendence 4 and having waived any right to resile therefrom, the defences should be repelled."

(The words in italics are those added by amendment at the conclusion of the debate in the First Division.)

It will be observed that the plea refers to waiving "the right to resile" and not "the right to refuse the title offered." The Dean of Faculty submitted that there was a material difference between those things. Even if the appellants had waived their right to resile, as the First Division held, it would not necessarily follow that the respondents were entitled to decree of implement. For one thing, the waiver might have been temporary, with the result that implement would be premature—as in the first stage of Carter v. Lornie (1890) 18 R. 353. In the present case a decree of implement would certainly not be premature, but the Dean of Faculty submitted that the contract which the respondents were seeking to have implemented is not the contract contained in the missives, because it includes an additional implied term to the effect that arrangements will be made, to the satisfaction of the appellants, whereby the Smiths will give up their rights over the access passage in exchange for a new right of access from the rear of their shop—see the averments in the last seven sentences of Condescendence 4. The respondents therefore ought to be seeking implement of the original contract as varied by a subsequent agreement. This submission seems to me to have a good deal of force, but I do not propose to express any concluded opinion upon it or to rely upon it, because I have reached the opinion that the plea of personal bar or waiver ought to be repelled on the simpler ground that it is not justified on the facts.

There was, of course, no express waiver by the appellants of their rights. The argument was that the appellants, by their actings after they had discovered the existence of the burdens, had waived their right to refuse the only title offered by the respondents. The actings by the appellants that were regarded by the Lord President as amounting to an unequivocal waiver were those relating to Mr Stahly's licence to occupy Nos. 245/249 and I must now consider those actings. At the date of the missives, the shop Nos. 245/249 was temporarily occupied by Mr Stahly under a licence from the respondents. In terms of that licence, he paid a fee or "rent" of £200 per month and he agreed that it could be determined immediately by the respondents. Accordingly condition 4 of the missive offer provided that the respondents would terminate their agreement with Mr Stahly and that vacant possession of the shop occupied by him would be given at the date of entry. In fact the contractual date of entry (1st March 1974) was not adhered to, probably because by that time the appellants had discovered the burdens in favour of the Smiths, and on 8th March the respondents' solicitors wrote to the appellants' solicitors enquiring whether the appellants wished them to give notice to Mr Stahly to remove "in terms of condition 4." On 11th March the appellants' solicitors replied that they did wish that to be done. The respondents' solicitors then wrote to Stahly demanding immediate possession and they informed the appellants' solicitors that they had done so. Counsel for the respondents submitted that by sending the letter of 11th March 1974 and by (as he submitted) taking entry to Stahly's shop a few days later, the appellants had waived their right to refuse the title. The first stage of the argument was that, when the respondents terminated Mr Stahly's licence, at the request of the appellants, they gave possession of Nos. 245/249 to the appellants, and that thereafter Mr Stahly occupied as the licensee of the appellants. The argument derives some plausibility from the fact that thereafter Mr Stahly paid his "rent" of £200 monthly to the appellants' property agent. But I have reached the opinion that there is no significance in this. The "rent" was received monthly by the property agent (whose office was in England) without the knowledge of the appellants or their solicitors, and when their solicitors discovered what was happening, they put the money on deposit and offered to pay it over to the respondents. The offer was refused. The reason for payment being made to the appellants' agent probably was that everyone concerned, including Mr Stahly, assumed that the sale was on the point of being completed. The appellants had arranged during February 1974 with Mr Stahly to grant him a licence to continue in occupation of his shop, and a new licence, in terms practically identical with those of the licence from the respondents, had been prepared and had actually been signed by Mr Stahly. But it was never signed by the appellants because, as they explained to Mr Stahly in a letter of 7th March 1974, of the difficulty about the title. The position accordingly was that notice was given to Stahly to terminate his occupation under the licence but was never put into effect. Legally, therefore, Stahly continued to be occupying under the licence from the respondents; they were the only party who had a title to take proceedings in court for his eviction if that had been necessary. The appellants did not, in my opinion, ever take entry to Nos. 245/249.

Even if they had taken entry, they would not thereby have waived their right to a good title. The fact that they had chosen to exercise their right to entry into part of the subjects under condition 4 would not have deprived them of their rights under condition 6 and, so far as applicable, under condition 3. It is perfectly clear that they never took entry to No. 243A, as the Sharkeys continued to pay their rent to the respondents. The mere taking of entry would not per se have amounted to waiver—see Macdonald v. Newall (1898) 1 F. 68—and Mr Bruce accepted that that was so. But he submitted that it amounted to waiver in the circumstances of this case particularly because the letter of 11th March 1974 was written in full knowledge of the difficulty about the burden and because it deprived the respondents once and for all of their valuable rights under the licence to Stahly. The latter point seems to me without substance because the only right of which they were deprived was the right to receive the "rent" and they were offered repayment as soon as the position came to notice. With regard to the former point, the significance of the letter of 11th March has to be assessed as part of a continuing correspondence between the parties' solicitors, in which the first mention of the burden is in a letter dated 26th February 1973 from the appellants' solicitors. At that time they assumed that the Smiths' right could be bought off and that the only question was whether the cost of doing so should be borne by the respondents or the appellants. The immediate reaction of the respondents was to reply that they had told the appellants or their property agent about the burden in favour of No. 243 before the contract was made, and that they could accept "no responsibility for any cash payment whatsoever." That continued to be the respondents' attitude until the end of the proof. The correspondence proceeded on the assumption, common to both parties, that the difficulty about the burdens would be removed and that the contract would then be fully implemented. The respondents cannot have been in any doubt that the appellants were not willing to hand over the price until that difficulty had been removed—see among others the appellants' solicitors' letter of 26th March, 1974 in which they "again confirmed [their] instructions that [their clients] are not prepared to pay over the price until the question of the right of access has been settled to their satisfaction." Mr Bruce argued that the question had been settled to the satisfaction of the appellants by about June 1975. The correspondence which is produced is unfortunately not complete, but it seems to show that the Smiths were willing to give up their right over the passage in exchange for a new right of access to the rear of their shop from the north. But the proposed service road had not been built by the date of the proof and, either because of the delay in building it or for some other reason, no agreement between the Smiths and either the appellants or the respondents was concluded. In these circumstances I think it is hopeless to suggest that the appellants were ever satisfied on the question of access. I find myself in wholehearted agreement with the Lord President on that matter.

I should add that the case on waiver can not, in my opinion, be disposed of simply on the ground that the respondents, who seek to rely on waiver, did not aver or prove that they had suffered prejudice or acted to their detriment in reliance on the appellants' conduct. The word "waiver" is a vague term—see Gloag on Contract (2nd Edition) 281. In Banning v. Wright [1972] 1 WLR 972, Lord Hailsham of St Marylebone L.C. at 979 C, said this:

"In my view, the primary meaning of the word ‘waiver’ in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted."

In the same case Lord Reid at 981 D said:

"It [waiver] always, I think, involves the idea of giving up or abandoning some right or rule."

In W. J. Alan & Co. Ltd. v. El Nasr Export & Import Co. [1972] 2. Q.B. 189, 213A, Lord Denning M.R. expressed the opinion that it was not necessary for the party relying on the waiver to have suffered prejudice by his reliance, but that it was enough if he had conducted his affairs on the basis of the waiver. In the present case the reason why the plea of waiver fails is not that the respondents suffered no prejudice (although in my opinion that is true) but that the appellants never abandoned their right to refuse the title offered, and the respondents never conducted their affairs on the basis that they had. The respondents' position all along was that the appellants did not have the rights which they claimed.

For these reasons I would allow the appeal. The second interlocutor of the First Division, dated 1st March 1978 should be recalled. The second, third and fifth pleas-in-law for the appellants should be sustained and the appellants should be assoilzied from the conclusions of the action. The appellants must have their costs of the appeal to this House and their expenses in the Court of Session.

LORD RUSSELL OF KILLOWEN .—My Lords, I have had the advantage of reading in draft the speech that has been delivered by my noble and learned friend, Lord Fraser of Tullybelton. I find myself entirely in agreement with it, and accordingly I also would allow this appeal.

LORD KEITH OF KINKEL .—My Lords, the facts of this case have been fully set out in the speech of my noble and learned friend Lord Fraser of Tullybelton, and it is unnecessary for me to restate them.

The first question for determination in the appeal relates to the nature and scope of the respondents' obligation, under the missives for purchase and sale of the subjects 245/249 and 243A High Street, Kirkcaldy, to tender to the appellants a valid marketable title. This obligation was expressly embodied in condition 3 of the missive dated 20th December 1973, but I do not consider that anything turns on the precise terms of that condition. The relevant obligation was one which would in any event have been implied by law into the contract. The obligation might by agreement have been extended or abridged, but in my opinion condition 3 does not have any such effect. Whether the same is true of condition 6 I shall consider later.

The nature and scope of the obligation, so far as material for present purposes were, in my opinion, correctly indicated by Lord Kincairney in M'Connell v. Chassels (1903) 10 S.L.T. 790 at p. 792:

"I think that the balance of authority supports the proposition that when a transaction for the purpose of sale and purchase of an heritable subject rests on missives, the purchaser will be entitled to refuse to complete the transaction if it be discovered that the property is affected by conditions which materially diminish its value, and which are not disclosed or known to the purchaser."

The seller's obligation is therefore to tender a title which does not contain any such conditions. The position is, in substance, that the existence of such conditions has the effect that the seller is unable to convey the full right of property which he agreed to convey, as was pointed out by Lord Mackenzie in Urquhart v. Halden (1835) 13 S. 844 at p. 849.

In the present case the title tendered by the respondents contained conditions in favour of the proprietors of 243 High Street severely restricting the full rights of ownership in the subjects, most importantly in respect that they were such as effectively to prevent development, at least at street level, often feet out of the 55 feet High Street frontage. It is now common ground, though not accepted by the respondents till the conclusion of the proof, that the existence of these conditions was not known to the appellants until after the transaction was entered into. There can be no doubt that they materially diminished the value of the subjects, considering that, as the respondents were aware, the appellants had in view a project to redevelop the site for shopping purposes, the prospects of which naturally influenced the price they were prepared to pay.

The appellants were accordingly entitled to refuse to accept the title tendered, unless the respondents' obligation in this respect was modified, to an extent sufficient to accommodate the restrictive conditions, by the terms of condition 6 of the missive dated 20th December 1973. That condition provided:

"There is nothing in the titles of the said subjects which will prevent demolition and redevelopment."

The argument for the respondents, which found favour with the majority of their Lordships of the First Division, was that condition 6 "superseded" the sellers' ordinary obligation as regards title by expressly describing the extent to which any title conditions restrictive of demolition and redevelopment were to be treated as unacceptable to the appellants. Upon a proper construction of condition 6, so it was maintained, such conditions were to be treated as unacceptable only if they had the effect of preventing any commercially useful development somewhere within the curtilage of the site, and the appellants had not proved that they had this effect. It was argued for the appellants that it would be strange if a condition obviously inserted for the benefit and better protection of the purchasers had the result of detracting from the rights they would otherwise have been entitled to, and that on a proper construction condition 6 struck at any condition in the title of are development preventing character, its purpose being to underline the materiality of freedom of development.

In my opinion the argument for the respondent is unsound. I am quite unable to read condition 6 as evincing an intention to abridge the rights which the appellants would have had in its absence. The broad purpose of the condition is obviously to draw attention to the appellants' object in acquiring the property and to stress the importance to them of there being no conditions in the title which would prevent redevelopment. I think the words "demolition and redevelopment" have reference to demolition and redevelopment generally, so that their import comes to be very close to that contended for by the appellants. The context is that of an acquisition by developers naturally anxious to implement the most highly profitable scheme. If one figures the case of an acquisition of land for the purpose, known to both parties, of mineral exploitation, subject to a condition that there is nothing in the title which will prevent the extraction of minerals, and it turns out that the extraction of minerals is prohibited over half the area acquired, it would be absurd to suggest that there has been no breach of the condition unless it is proved that minerals cannot be profitably extracted from the remainder of the area. I think, with all respect to the majority in the First Division, that the argument for the respondents in the present case is equally untenable. Plainly it is demolition and redevelopment of the subjects as a whole which is in contemplation.

The second question for determination in the appeal is concerned with the matter of waiver. In the respondents' pleadings as they stood up to the stage of the hearing before the First Division there appeared a plea that the appellants were by their actings personally barred from resiling from the contract, a step which the appellants had purported to take by their solicitors' letter to the respondents' solicitors dated 24th September 1975. That plea was sustained by the Lord Ordinary following the proof, but before the First Division the respondents' counsel recognised that it could not be maintained in its original form. The plea was allowed to be amended so as to embody the contention that the appellants had waived their right to resile from the contract. The Lord President, from whose opinion on the matter Lord Cameron expressed himself as not dissenting, held that, assuming the respondents' obligation was to convey the subjects unencumbered by the conditions in favour of the proprietors of 243 High Street, the appellants had waived their right to enforce that obligation. The plea, in its new form, is still directed to the appellants' right to resile from the contract, whereas the true question is whether they are bound to implement it by accepting the title tendered by the respondents and paying the price. That technicality is not, however, of any significance in the circumstances.

Your Lordships were favoured with an interesting argument from the respondents' side of the Bar as to the nature of waiver as a legal concept. Starting from the proposition to be found on the first page of Rankine on Personal Bar that similar principles govern personal bar in Scotland and estoppel in England, and the further proposition that waiver is an aspect of personal bar, counsel founded on the formulation of the concept of waiver stated by Lord Denning M.R. in W. J. Alan & Co. v. El Nasr Export [1972] 2 QB 189 at p. 213:

"The principle of waiver is simply this: if one party, by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict legal rights when it would be inequitable for him to do so."

Counsel was particularly concerned to carry the contention that it is sufficient for the party relying on a plea of waiver to establish that he has acted in some way in reliance on a belief induced by the words and conduct of the other party, and that he need not show that he has acted to his prejudice.

The topic of waiver may arise in a number of guises in a variety of contexts. The truth is that it is a creature difficult to describe but easy to recognise when one sees it, subject to the proviso that it is on occasion difficult to distinguish it from variation of a contract. In English law attempts to mitigate the rigours of the doctrine of consideration have led to introduction of concepts of equitable estoppel and promissary estoppel in situations where that doctrine rules out a finding of agreed variation of contract. Scots law would not, I think, be disposed to follow English law down such paths, in the absence of corresponding considerations of justice which might commend such a course. So I would not accept today that no important juridical differences exist between personal bar in Scotland and estoppel in England.

The word "waiver" connotes the abandonment of a right. (See Banning v. Wright [1972] 1 WLR 972 per Lord Hailsham of St Marylebone L.C. at p. 979, Lord Reid at p. 981). The abandonment may be express, or it may be inferred from the facts and circumstances of the case. I am of opinion that certain of the Scottish cases cited as being concerned with the latter aspect are disclosed, upon close examination, to be cases where one party to a contract has plainly accepted as being conform to contract performance tendered by the other party which he might, if so minded at the time, have rejected as defective. Such a case is Macdonald v. Newall 1 F. 68. There the solicitors acting for the purchaser of an hotel raised certain objections to the title tendered by the sellers. These objections were cleared up, and the purchaser entered into possession, paid the purchase price and took over the stock at a valuation. Some months later the purchaser claimed to be entitled to rescind the bargain on the ground that the titles contained a reservation of minerals. This had all along been plain on the face of the titles, and it was held that the purchaser was not entitled to rescind. Another such case is Davies v. City of Glasgow Friendly Society 1935 S.C. 224, where the pursuer had over a period of twelve years accepted and granted unqualified receipts for a salary which in the action he claimed was less than he was entitled to under his contract of employment. It was held that he was not entitled to recover any additional remuneration. A case on somewhat different lines was Donnison v. Employers' Accident & Live Stock Insurance Co. Ltd. 24 R. 681. A policy of assurance against accidental injury provided that as a condition precedent to liability of the insurers notice of any accident to the assured must be given within fourteen days of its occurrence. The assured sustained an accident and died as a result of it, having given notice to the insurers more than fourteen days after its occurrence. In pursuance of another condition of the policy the insurers requested a post mortem examination and the request was acceded to by the widow. It was held that in these circumstances the insurers had waived their right to rely as negativing their liability upon the condition regarding notice. I conclude from these cases that the question whether or not there has been waiver of a right is a question of fact, to be determined objectively upon a consideration of all the relevant evidence.

I am of opinion that in the present case the evidence falls far short of establishing that the appellants abandoned their right to insist upon the respondents fulfilling their whole obligations as respects the title to the subject of sale. The respondents relied principally for the purpose of establishing this upon the circumstance that, in response to their solicitors' letter of 8th March 1974, the appellants' solicitors wrote on 11th March:

"We confirm we wish you to send a letter to Mr Stahly to remove from the subjects and we would be grateful if you could advise us of the date on which you have asked him to remove."

They relied also on the circumstances that, Mr Stahly having been given notice to remove from the subjects, Mr Dollery on behalf of the appellants arranged with Mr Stahly that he should continue in possession and make to Mr Dollery monthly payments of the same amount as had previously been made to the respondents. I do not consider that these circumstances warrant the inference that the appellants waived any rights whatsoever under the missives. I will assume, in favour of the respondents, that the effect of what was done amounted to the termination of the respondents' licence to Stahly to occupy the butcher's shop and the granting to Stahly by the appellants of a new licence to do so, notwithstanding the difficulties in the way of that view of the matter which have been mentioned by my noble and learned friend Lord Fraser of Tullybelton. The position on that view simply comes to this, that the appellants insisted upon and obtained, albeit a little late, implement of the respondents' obligation under conditions 2 and 4 of the contract to give vacant possession of Stahly's shop on 1st March 1974. There is no good reason why insistence upon implement of these conditions should infer waiver of the right to insist on the conditions regarding title. Taking entry to subjects under a contract for purchase and sale does not, as a general rule, imply waiver of any conditions regarding title to the subjects. (See Carter v. Lornie 18 R. 353, per Lord Adam at 361: Macdonald v. Newall (supra), per Lord President Robertson at p. 71). The correspondence between the parties' solicitors regarding the restrictions in favour of 243 High Street and the appellants' state of knowledge of these restrictions started before and continued through and after the interchange of letters about the Stahly licence. The appellants' solicitors offered no grounds for supposing that their objections to the restrictions in question would be unreservedly departed from, and while the appellants were no doubt anxious to clear away the obstacles to development thereby presented by themselves negotiating a suitable arrangement with the proprietors of 243 High Street, their solicitors had made it clear by their letter of 26th February 1974 that this was to be done at the expense of the respondents. The appellants had in mind an agreed variation of the contract for purchase of sale of the subjects, but in the event no variation was agreed. The negotiations with the proprietors of 243 High Street never came to fruition, for reasons connected, no doubt, with uncertainties about the provision by the local authority of a new access road at the rear of the premises, and the resultant delay coupled with a falling market eventually made the appellants' intended project uneconomic. The respondents' attitude throughout was that the title burdened by the restrictions was all they were obliged to tender. In my opinion the appellants neither said nor did anything inconsistent with an insistence by them upon the title conditions of the missives. I do not overlook that the appellants' solicitors drafted a disposition of the subjects of sale which included reference to the burdens in question, sent it to the respondents' solicitors for revisal and following such revisal engrossed and sent it back for execution by the respondents, at the same time as they agreed to Stahly being given notice to remove. But the disposition would in all probability have been in the same form had an accommodation eventually been reached with the proprietors of 243 High Street. The likely method of giving effect to that accommodation would have included a discharge of the burdens granted in favour of the respondents, delivered to the appellants at the same time as the executed disposition and recorded simultaneously with it. So I do not consider that this aspect supports any implication of waiver.

For these reasons I agree that the appeal should be allowed, and an order made in the terms proposed by my noble and learned friend Lord Fraser of Tullybelton.