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Exclusion Clauses and Contracts for the Sale of Land

Published online by Cambridge University Press:  16 January 2009

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Extract

This article is a study of judicial attitudes to exclusion clauses in contracts for the sale of land. It examines the various devices which the courts have developed in order to limit the effect of such clauses and suggests that one of these devices has emerged as paramount: the principle that a vendor may, in appropriate circumstances, be estopped from relying on a condition by reason of his knowledge or conduct. One form of this estoppel will be shown to be of particular importance. This is the “well-established rule of equity” that a vendor of land cannot rely on a condition of sale, framed in general terms, to cover a specific encumbrance or other defect in title of which the vendor knew or ought to have known, and which he failed to disclose to the purchaser prior to contracting. The culmination of the article is a study of the rationale and precise manner of operation of this rule-which for convenience will be called the “no-disclosure, no-reliance” rule.

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Copyright © Cambridge Law Journal and Contributors 1992

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References

1 Rignall Developments Ltd. v.Halil [1988] Ch. 190, 197, Milieu J.

2 For a full discussion of these twin obligations, see Harpum, “Selling without title: a vendor's duty of disclosure?” (1992) 108 L.Q.R. 280.

3 e.g., Catayes v.Flather (1865) 34 Beav. 387, 388, Romilly M.R.;Re Ossemsky Estates, Ltd.[1937] 3 All E.R. 774, 778, Greene M.R.; and seeMartin's Practice of Conveyancing (1844) by Charles Davidson, vol. I. p. 83. 263

4 e.g., Peyman v.Lanjani [1985] Ch. 457, 496–497, Slade L.J.

5 See Harpum, (1992) 108 L.Q.R. 280, at p. 332.

6 The leading case wasReeve v.Berridge (1888) 20 Q.B.D. 523 (C.A.)

7 “Every vendor of freehold property is bound to furnish to the intended purchaser an abstract of all deeds, wills and other instruments which have been executed with respect to the land in question during the last sixty years; and if this is not done by a perfect abstract, the vendee may object or require further information”:Want v.Stallibrass (1873) L.R. 8 Exch. 175, 183, Pollock B.

8 e.g., Tomkins v.White (1806) 3 Smith's Rep. 435, K.B.;Farrer v.Nightingal (1798) 2 Esp. 639; and seeTravinto Nominees Pty. Ltd. v. Vlatlas (1973) 129 C.L.R. 1, 27–28, Menzies J., H.C.A. Strict compliance was subject to the exception of mattersde minimis: Belworth v.Hassell (1815) 4 Camp. 140, Lord Ellenborough C.J.;Jennings v.Brunt (1869) 19 L.T. 705, Lush J.

9 e.g., Dyer v.Hargrove (1805) 10 Ves. 505, Grant M.R.;Halsey v.Grant (1806) 13 Ves. 73, Lord Erskine L.C.

10 Two well-known works have been consulted by way of example: Barton, Charles,Modern Precedents in Conveyancing (3rd ed., 1821), vol. I,Google Scholar andMartin's Practice of Conveyancing (1839), by Davidson, Charles, vol. III.Google Scholar

11 The earliest regular use of standard form agreements was probably in insurance contracts, the most celebrated in contracts of carriage: see Adams, J.N., (1978) 7 Anglo-American Law Rev. 136.CrossRefGoogle Scholar

12 Seee.g., Purvis v.Rayer (1821) 9 Price 488, 522, Richards C.B.;Re Deighton and Harris's Contract [1898] 1 Ch. 458, 463–464, Lindley M.R.

13 Martin's Practice of Conveyancing, by Davidson, Charles, vol. Ill, p. 28.Google Scholar See too Dart, J.H., Vendors and Purchasers (1st ed., 1851), p. 70.Google Scholar

14 Harpum, (1992) 108 L.Q.R. 280, 314–320.

15 e.g., Samuel Pufendorf,De Jure Naturae et Gentium (Barbeyrac edition), 5.3.1 (p. 477 of Basil Kennett's translation of 1729);De Officio Hominis et Civis (1673), 15.3 (p. 74 of F.G. Moore's translation of 1934); R.J. Pothier,A Treatise on the Law of Obligations, 1.1.1.3.4.33 (vol. 1, p. 21 of W.D. Evans' translation of 1806);A Treatise on the Contract of Sale, 2.2.1.234 (p. 142 of L.S. Cushing's translation of 1839). The idea can be traced back to Aristotle,Ethics, V, 1133;via Thomas Aquinas,Summa Theologica, II—II, Q. 77, art. I.

16 DeJure Belli ac Pacts (1646 edition), 2.12.8 (p. 346 of F.W. Kelsey's translation of 1925).

17 Grotius,DeJure, 1X1. 9.1 (Kelsey, p. 347); Pufendorf,DeJure, 5.3.2 (Kennett, p. 477).

18 1 Bl.Comm. 41.

19 1 Bl.Comm.41–42; A.P. D'Entreves, Natural Law (1951), ch. 2.

20 See Gordley, James,The Philosophical Origins of Modern Contract Doctrine (1991), pp. 147160, and 201208.Google Scholar

21 Gordley,op. cit., pp. 205–206. There were good historical reasons for this: see Simpson, A.W.B., A History of the Common Law of Contract (1975), pp. 445449.Google Scholar

22 See,e.g., Re Banister (1879) 12 Ch.D. 131, 136, Fry J.;Re Marsh and Earl Granville (1883) 24 Ch.D. 11, 17, Fry J.;Nottingham Patent Brick and Tile Company v.Butler (1885) 15 Q.B.D. 261, 271, Wills J.;Re Terry and While's Contract (1886) 32 Ch.D. 14, 28, Lindley L.J.;Re Woods and Lewis' Contract [1898] 2 Ch. 211, 213, Lindley M.R.;Greenhalgh v.Brindley [1901] 2 Ch. 324, 328, Farwell J.; ReNichols' and Von Joel's Contract [1910] 1 Ch. 43, 47, Farwell L.J. These dicta are strongly reminiscent of a passage in R.J. Pothier'sTreatise on the Contract of Sale, 2.2.1.234 (Cushing p. 142).

23 Tomkins v.White (1806) 3 Smith's Rep. 435, 439.

24 On which, see Harpum, (1992) 108 L.Q.R. 280.

25 See,e.g., Brandling v.Plummer (1854) 4 Drewry 427, 430, Kindersley V.-

26 See Adams, J.N., (1978) 7 Anglo-American Law Rev. 136, 138.CrossRefGoogle Scholar

27 See Prausnitz, O., The Standardisation of Commercial Contracts in English and Continental Law (1937), p. 16, citing Pothier's experience.Google Scholar

28 On which, see the interesting analysis by Steve Hedley, “From Individualism to Communitarianism? The Case of Standard Forms”, inLegal Record and Historical Reality: Proceedings of the Eighth British Legal History Conference, Cardiff 1987 (ed. Thomas Glyn Watkin) 229, at pp. 235–237.

29 Suisse Atlantique Société d' Armement Maritime S.A. v.N. V. Rotterdamsche Kolen Centrale(1967] 1 AC. 361,406.

30 The starting point is to be found in some remarks of Devlin J.'s inSmeaton Hanscomb v. Sassoon I. Setty, Son & Co. (No. 1) [1953] 1 W.L.R. 1468,1470.

31 [1980) A.C. 827.

32 [1980] A.C. 827, 842–843, Lord Wilberforce.

33 [1980] A.C. 827, 843.

34 Unfair Contract Term s Act 1977, s. 11(1).

35 Unfair Contract Term s Act 1977, Schedule 1, para. 1(6).

36 Consideredinfra.

37 Listed in the Unfair Contract Terms Act 1977, Schedule I, para. 1.

38 The Standard Condition s of Sale, 1st edition, 1990 (hereafter “SCS”). The second edition is due to appear in the summer of 1992.

39 As substituted by the Unfair Contract Terms Act 1977, s. 8(1).

40 Unfair Contract Terms Act 1977, s. 11(1).

41 [1982] 1 W.L.R. 495.Cf. Swinglerv. Khosla [1991] 1 E.G.L.R. 245.

42 National Conditions of Sale (19th edition), c. 17.

43 [1982] 1 W.L.R. 495, 507–508.

44 See generally Peter Butt, (1983) 57 A.L.J. 93.

45 The earliest decision that is known to the present writer in which this condition was in issue, wasDuke of Norfolk v.Worthy (1808) 1 Camp. 337.

46 The common form of the condition in the nineteenth century was in the following terms: “That if any mistake or error be made or discovered in the description of the premises, or any other error whatever shall appear in the particulars of sale, such mistake or error shall not annul the sale, but a compensation or equivalent shall be given or taken, as the case may require…” See,e.g., Ayles v.Cox (1852) 16 Beav. 23; andMartin's Practice of Conveyancing (1839), vol. Ill, p. 32. For the current version of the condition, see SCS, c. 7.1.

47 Granger v.Worms (1814) 4 Camp. 83, Lord Ellenborough C.J.; and see Charles Barton, Modern Precedents in Conveyancing (3rd ed., London, 1821), vol. I, p. 13; and EC. Batten,A practical treatise on the law of specific performance (1849), p. 122.

48 See,e.g., Poole v.Shergold (1786) 1 Cox 273, Kenyon M.R.

49 See his remarks inDrewe v.Hanson (1802) 6 Ves. 675, 678; and inKnatchbull v.Grueber(1817) 3 Mer. 123, 145–146.

50 SeeBowyer v.Bright (1824) 13 Price 698, 706–707, Garrow B.

51 Halsey v.Grant (1806) 13 Ves. 73, 77.

52 Essay upon the law of contracts and agreements (1790, London), vol. I, pp. 147–148.

53 For a very clear statement of this principle, seeSmith v.Tolcher (1828) 4 Russ. 302, 305, Leach M.R. It had been formulated in very similar terms some 16 years earlier by Tilghman C.J. in the Supreme Court of Pennsylvania:Stoddart v.Smith, 5 Binney 355, 363 (1812).

54 As Plumer V.-C. observed inKnatchbull v.Grueber (1815) 1 Madd. 153, 167, “there is no standard by which to ascertain what is essential to a [reluctant] purchaser”. There is considerable authority on the question to be found in nineteenth century American state reports, notably in Virginia.

55 Dyer v. Hargrove (1805) 10 Ves. 505, 509, Grant M.R. See tooHenderson v.Hudson (1867) 15 W.R. 860, 861, Lord Romilly M.R.;Re Edwards to Daniel Sykes & Co. Ltd. (1890) 62 L.T. 445,447, ChittyJ.

56 The civil law origins of specific performance with compensation were well appreciated in America: Kent, James, Commentaries on American Law (1827, New York), vol. 2, p. 476.Google Scholar

57 See Buckland, W.W.,A Textbook of Roman Law, 3rd ed. by Stein, P.G. (1966), pp. 491493. In classical Roman law, the two actions were confined to sales of slaves and cattle: Peter Stein, Fault in the Formation of Contract in Roman Law and Scots Law (1958), p. 15Google Scholar. They were extended to all forms of property, including land, in the time of Justinian: ibid., pp. 54ff.

58 This interpretation was the work of certain “later scholastics” of the seventeenth century Spanish natural law school, such as Leonard Lessius and Luis de Molina: Gordley,The Philosophical Origins of Modern Contract Doctrine, pp. 105–106.

59 The Civil Law in its Natural Order, 1.2.11.3 (p. 84 of Williams Strahan's translation of 1722). The passage strikingly anticipates the treatment of redhibition in the 1825 edition of the Louisiana Civil Code, articles 2496ff.

60 Domat,op. cit., 1.2.11.4–5 (Strahan, p. 84).

61 Duke of Norfolk v.Worthy (1808) 1 Camp. 337, especially at p. 340, Lord Ellenborough C.J.; Sherwood v.Robins (1828) 3 Car. & P. 339; M. & M. 193, Lord Tenterden C.J.;Wright v. Wilson (1832) 1 M. & Rob. 208, Parke J.

62 Robinson v.Musgrove (1838) 2 M. & Rob. 92, 95, Tindal C.J.

63 Stewart v.Alliston (1815) 1 Mer. 26, Lord Eldon;Leach v.Mullen (1827) 3 Car. & P. 115, Best C.J.

64 (1834) 1 Bing. (N.C.) 370. The plaintiff had agreed to purchase the lease of premises in the Piazza, Covent Garden. In the particulars of sale, it was stated that no offensive trades could be carried on on the premises; and that the premises were not to be let to a coffee-house keeper or a working hatter. Th e contract contained the usual non-annulment clause. It transpired that the premises were subject to a covenant which prohibited the use of the premises for virtually all common retail trades—not only were those of butcher, baker and candlestick-maker proscribed, but, rather surprisingly in Covent Garden, those of fruiterer and herb-seller as well. The plaintiff repudiated the contract and successfully sued to recover his deposit.

65 (1834) 1 Bing. (N.C.) 370, 376, Tindal C.J.

66 (1834) 1 Bing. (N.C.) 370, 377, Tindal C.J.

67 Ayks v.Cox (1852) 16 Beav. 23, 24, Romilly M.R. See tooPortman v.Mill (1826) 2 Russ. 570, 574, Lord Eldon L.C.;Madeley v.Booth (1848) 2 De G. & Sm. 718, 722, Knight Bruce V.-C;Stanton v.Tattersall (1853) 1 Sm. & Giff. 529, 536, Stuart V.-C. See too the decision of the Court of Exchequer inEvans v.Robins (1862) 31 L.J. Exch. 465, especially at p. 469, Channell B., and p. 470, Pollock C.B.

68 Cf. Chanter v.Hopkins (1838) 4 M. & W. 399, 404, Lord Abinger C.B.

69 Contemporary commentators were well aware of this. Some non-annulment clauses provided not only for the vendor to pay compensation for any shortfall in the land sold, but for the purchaser to pay an additional sum if he received more land than had been stated in the particulars of sale. It was a right seldom exercised by vendors: “It must, indeed, be a very strong case of mistake for a vendor (who has full means of ascertaining with the utmost accuracy, what he intends to sell,) to succeed in obtaining compensation, or, in other words, an increase of his purchase-money, for an alleged mistake he has himself made”: Martin's Practice of Conveyancing(1839), vol. Ill, p. 34. See by way of example, Orange to Wright(1885) 54 L.J.Ch. 590, Bacon V.-C. A purchaser is generally under no duty to disclose to the vendor what he knows about the land he is buying. A court of equity will however refuse specific performance to a purchaser who, having some special knowledge, in some way misleads the vendor: see Foxv. Macreth(1788) 2 Bro. C.C. 400, 420; 2 Cox 320, 321, Lord Thurlow L.C.; Turnerv. Harvey(1821) Jac. 169, 178, Lord Eidon L.C.; Waltersv. Morgan(1861) 3 De G.F. & J. 718, 723, Lord Campbell L.C.

70 Cases which tend to support an objective test include:Ayles v.Cox (1852) 16 Beav. 23, 24–25, RomillyM.R.;Leev. Rayson [1917] 1 Ch. 613, 619, Eve J.;Re Courcier and Harrold's Contract[1923] 1 Ch. 565, 575, Sargant J.;Ridley v.Osier [1939] 1 All E.R. 618, 622, Oliver J. Those which support a subjective determination include:Re Fawcett and Holmes' Contract (1889) 42 Ch.D. 150, 157, Lord Esher M.R.; 158, Cotton L.J.;Jacobs v.Revell [1900] 2 Ch. 858, 864, Buckley J. It is clear that the issue of substantiality will be judged with regard to the use for which, to the knowledge of both parties, the property was sold:Re Puckett and Smith's Contract[1902] 2 Ch. 258,C.A.; Shepherd v. Croft [1911] 1 Ch. 521, 528, Parker J. There is much to be said for the view that the substantiality should be both objective and subjective. It should not be enough that a reasonable person would not have purchased the land but for the error or omission, if the purchaser would have done.Cf. Watson v. Burton [1957] 1 W.L.R. 19, Wynn-Parry J.

71 Re Turner and Skelton (1879) 13 Ch.D. 130, 132, Jessel M.R.;Cobbett v.Locke-King (1900) 16 T.L.R. 379, Wright J. A case in which a purchaser was allowed compensation in such circumstances,Lett v.Randall (1883) 49 L.T. 71, Kay J., is generally thought to have been wrongly decided.

72 (1834) 1 Bing. (N.C.) 370.

73 Most recently inKing Brothers (Finance) Ltd. v.North Western British Road Services Ltd.[1986] 2 E.G.L.R. 253, Mervyn Davies J.

74 Re Fawcett and Holmes' Contract (1889) 42 Ch.D. 150;Re Puckett and Smiths Contract [1902] 2 Ch. 258.

75 Re Fawcett and Holmes' Contract (1889) 42 Ch.D. 150, 158–159, Cotton L.J.

76 Misrepresentation Act 1967, s. 3, consideredsupra. Walker v.Boyle [1982] 1 W.L.R. 495, involved just such a composite condition of sale.

77 Jacobs v.Revelt [1900] 2 Ch. 858, 864, Buckley J.

78 Cordingley v.Cheeseborough (1862) 4 De G.F. & J. 379, 384, Lord Westbury L.C.;Re Terry and White's Contract (1886) 32 Ch.D. 14, 24, Lord Esher M.R.; 30, Lindley L.J.

79 Besiey v.Besley (1878) 9 Ch.D. 103, 109, Malins V.-C;Allen v.Richardson (1879) 13 Ch.D. 524, Malins V.-C;Clayton v.Leech (1889) 41 Ch.D. 103, C.A.

80 Cann v.Cann (1830) 3 Sim. 447, Shadwell V.-C;Bos v.Helsham (1860) L.R. 2 Exch. 72;Re Turner and Skelton (1879) 13 Ch.D. 130, Jessel M.R.;Palmer v.Johnson (1884) 13 Q.B.D. 351, C.A. The point was not settled without a protracted fight. In a series of decisions, it was held that no compensation was available after completion, whether or not there was a non-annulment clause:Manson v.Thacker (1878) 7 Ch.D. 620;Besley v.Besley (1878) 9 Ch.D. 103;Allen v.Richardson (1879) 13 Ch.D. 524 (all decisions of Malins V.-C);Joliffe v.Baker(1883) 11 Q.B.D. 255,266–267, Watkin Williams J. Although these authorities were disapproved by the Court of Appeal inPalmer v.Johnson, it was with some reluctance, and only because the decision inCann v.Cann had stood unchallenged for so long.

81 The terms of the contract of sale will normally be considered to have been merged in and superseded by the deed of conveyance which carries out the contract:Leggott v.Barrett (1880) 15 Ch.D. 306, 309, James L.J.

82 Re Turner and Skelton (1879) 13 Ch.D. 130, 133, Jessel M.R.

83 Cann v.Cann (1830) 3 Sim. 447,449, Shadwell V.-C.

84 If the vendor failed to disclose an encumbrance, there may in certain circumstances be a remedy on the implied covenants. For the implied covenants, see the Law of Property Act 1925, s. 76 and Schedule II.

85 Bowyer v.Bright (1824) 13 Price 698.

86 Ex p. Riches, reported only in short form at (1883) 27 S.J. 313, C.A.; followed inDebenham v. Sawbridge [1901] 2 Ch. 98, Byrne J.

87 (1883) 27 S.J. 313, C.A.

88 (1834) 1 Bing. (N.C.) 370.

89 See, e.g.,Re Brewer and Hankin's Contract (1899) 80 L.T. 127, C.A.;Re Belcham and Gawley's Contract [1930] 1 Ch. 56, Maugham J.

90 Land Registration Act 1925, ss. 82 and 83.

91 (1834) 1 Bing. (N.C.) 370.

92 [1980] A.C. 827.

93 G.H. Treitel inChitty on Contracts (26th ed., 1989), vol. I, para. 1893; and see the same author'sThe Law of Contract (8th ed., 1991), p. 673.

94 (1834) 1 Bing. (N.C.) 370.

95 For a modern analysis, seeSuisse Atlantique Sociiti d' Armement Maritime S.A. v.N.V. Rotterdamsche Kolen Centrale [1967] 1 A.C. 361, 433, Lord Wilberforce.

96 George Mitchell (Chesterhall) Ltd. v.Finney Lock Seeds Ltd. [1983] 2 A.C. 803, 813–814, Lord Bridge, H.L.

97 [1980] AC. 827, 845, Lord Wilberforce.

98 (1834) 1 Bing. (N.C.) 370.

99 [1986] 2 E.G.L.R. 253, Mervyn Davies J.Photo Production does not seem to have been cited.

100 The contract was governed by The Law Society's General Conditions of Sale (1980 edition). The non-annulment clause that is found in the current set of general conditions is, as it happens, moulded round the rule inFlight v.Booth and does not purport to go beyond what the principle allows: SCS c. 7.1. The purchaser is entitled to terminate the contract for a substantial misdescription or non-disclosure: SCS c. 7.1.3(6).

101 For the present version of the condition, see SCS cc. 4.1.1 and 4.5.1.

102 Cf. Robinson v.Musgrove (1838) 2 M. & Rob. 92;Hobson v.Bell (1839) 2 Beav. 17;Blacklowv.Laws (1842) 2 Hare 40; and seeMartin's Practice of Conveyancing (1839), vol. Ill, p. 42.

103 Cf. Blackburn v.Smith (1848) 2 Ex. 783.

104 Oakden v.Pike (1865) 34 L.J.Ch. 620, 622, Kindersley V.-C.

105 Martin's Practice of Conveyancing (1839), vol. III, p. 42. The author cautioned however that the time specified should be reasonable, “for otherwise, very slight circumstances would induce a court of equity to relieve the purchaser”.

106 Blackburn v.Smith (1848) 2 Ex. 783.

107 Blacklow v.Laws (1842) 2 Hare 40, 47.

108 Southby v.Hun (1837) 2 My. & Cr. 207, 211, Lord Cottenham L.C.

109 Oakden v.Pike (1865) 34 L.J.Ch. 620,624, Kindersley V.-C.;Martins Practice of Conveyancingvol. III, p. 42.

110 Blackburn v. Smith (1848) 2 Ex. 783, 791, Parke B.;Want v.Staliibrass (1873) L.R. 8 Exch. 175, 184, Pollock B.

111 Blackburn v.Smith (1848) 2 Ex. 783, 792, Parke B.

112 Ibid

113 Hobson v.Bell (1839) 2 Beav. 17, 24–25, Lord Langdale M.R.;Blacklow v.Laws (1842) 2 Hare 40, 47–48, Wigram V.-C.

114 Warde v.Dixon (1858) 28 L.J.Ch. 315, 321, Kindersley V.-C;Re Cox and Neve's Contract[1891] 2 Ch. 109, 118–119, North J.

115 Re Scott and Eave's Contract (1902) 86 L.T. 617, 618, Swinfen Eady J.

116 (1873) L.R. 7 Exch. 175.Cf. Bowman v. Hyland (1878) 8 Ch.D. 588, Hall V.-C. and comment thereon: Harpum, [1990] Conv. 150,153–154.

117 (1873) L.R. 7 Exch. 175, 185. See too Kelly C.B. at p. 181.

118 Re Tanqueray-Willaume and Landau (1882) 20 Ch.D. 465, 473, Kay J. (apparently endorsed by Jessel M.R. in argument in the Court of Appeal, according to one report: 46 L.T. 542, 544);Saxby v.Thomas (1891) 63 L.T. 695, 698, Romer J.; and see, by implication,Pryce-Jones v.Williams [1902] 2 Ch. 517, 521–522, Joyce J.

119 (1903) 19 L.Q.R. 168. He was responding to a critique of the case by Farrer, F.E., (1903) 19 L.Q.R. 161.Google Scholar

120 (1903) 19L.Q.R. 168. 172.

121 (1873) L.R. 8Exch. 175.

122 (1834) 1 Bing. (N.C.) 370.

123 (1903) 19 L.Q.R. 168, 178–179.

124 Flight v.Booth (1834) 1 Bing. (N.C.) 370, 377, Tindal C.J.

125 (1873) L.R. 8 Exch. 175. See generally the critique by F.E. Farrer, (1903) 19 L.Q.R. 161.

126 Such an approach has been adopted in relation to the vendor's obligation to give vacant possession on completion:Topfell Ltd. v.Galley Properties Ltd. (1979) 1 W.L.R. 446, Templeman J. See generally, Harpum, [1988] Conv. 400.

127 See,e.g., Farrand, J.T.,Contract and Conveyance (4th ed., 1983) pp. 7677. There is in fact long-standing authority for this proposition: seeTweed v.Mills (1865) L.R. 1 C.P. 39, 45, Byles, J.Google Scholar

128 (1834) 1 Bing. (N.C.) 370.

129 (1881) 8 Q.B.D. 162; 51 L.J.Q.B. 170 (the latter is a much fuller report). See tooOakden v. Pike (1865) 34 L.J.Ch. 620, Kindersley V.-C, a case cited inWant v. Stallibrass, but which is not conclusive, because the vendor's title was almost certainly good.

130 The chronology can be worked out from the dates given in the Law Journal report of the case.

131 Re Metropolitan District Railway Company and Cosh (1880) 13 Ch.D. 607.

132 (1881) 8 Q.B.D. 162, 165, Brett L.J.

133 (1881) 51 L.J.Q.B. 170, 172, Jessel M.R.; 173, Brett and Cotton L.JJ.

134 (1881)51 L.J.Q.B. 170, 172, Jessel M.R.

135 (1881) 8 Q.B.D. 162; 51 L.J.Q.B. 170.

136 For reasons to be explained,infra.

137 i.e., Want v.Stallibrass (1873) L.R. 8 Exch. 175.

138 (1873) L.R. 8 Exch. 175. SeeSaxby v.Thomas (1891) 64 L.T. 65, 67, where Lindley L.J. commented on the difficulty of reconciling the two cases.Want v.Stallibrass was in fact a weaker case thanRosenberg v.Cook. InWant, the vendors could transfer not just bare legal possession, but the legal title, albeit that any such transfer would have been voidable.

139 George Mitchell (Chesterhall) Ltd. v.Finney Lock Seeds Ltd. [1983) 2 A.C. 803, 813–814, Lord Bridge.

140 Treitel, ,The Law of Contract (8th ed.), p. 210.Google Scholar

141 The virtual absence of any reported twentieth-century authority suggests that the point is no longer one of much practical importance (though in one case in whichWant v.Stallibrass might have been cited,Re Ossemsley Estates, Ltd. [1937] 3 All E.R. 774, C.A., it was not). In most cases, if the purchaser's solicitor failed to discover a serious flaw in the vendor's title—apparent from the abstract—within the time allowed by the condition, he would be negligent, and therefore liable in damages to his client. InRosenberg v.Cook itself however, the purchaser's solicitor does not seem to have been at fault in failing to discover the vendor's lack of title.

142 [1980] A.C. 827. Granted the very questionable status of Pollock B.'s principle as a matter of precedent, it cannot claim the status of a well-established but anomalous example of a doctrine of substantive fundamental breach.

143 (1834) 1 Bing. (N.C.) 370.

144 (1873) L.R. 8 Exch. 175.

145 George Mitchell (Chesterhall) Ltd. v. Finney Lock Seeds Lid. [1983] 2 A.C. 803, 813, Lord Bridge.

146 See,e.g., MFl Properties Ltd. v.BICC Group Pension Trust Ltd. [1986] 1 All E.R. 974, Hoffmann J.;British Gas Corporation v.Universities Superannuation Scheme Ltd. [1986] 1 W.L.R. 398, Browne-Wilkinson V.-C;Basingstoke and Deane Borough Council v.Host Group Ltd. [1988] 1 W.L.R. 348, C.A.

147 Co. Litt. 183a; and see Samuel Comyn,The Law of Contracts and Promises (2nd ed., 1824) p. 26. It was a moot point whether the civil law was or was not the same. Domat's account of the civil law would serve as an accurate statement of the English position:The Civil Law in its Natural Order, 1.2.11.14 (p. 86 of Strahan's translation of 1722). Pothier, on the other hand, states the converse rule—that all such clauses are construed in the seller's favour. This was apparently because of the form of the Romanstipulatio: Treatise on the Law of Obligations, 1.1.1.7.97 (vol. I, p. 58 of Evans' translation of 1806). In his notes (ibid., p. 53), Evans refers to Vattel's The Law of Nations or the Principles of Natural Law (1758), and the chapter in that book on the interpretation of treaties, “which is equally applicable to the case of contracts”. According to Vattel, “where the meaning is doubtful, a clause is to be interpreted against the party who prescribed the same in the treaty”: op. cit., 4.3.32 (p. 354 of C.G. Fenwick's translation of 1916).

148 Hoy v.Smithies (1856) 22 Beav. 510, 520, Romilly M.R.

149 Greaves v. Wilson (1858) 25 Beav. 290, 294, Romilly M.R. See to like effect,Re Terry and White's Contract (1886) 32 Ch.D. 14, 28, Lindley L.J.

150 Seaton v.Mapp (1846) 2 Coll. 556, 562, Knight Bruce V.-C. See too Sir James Knight Bruce's comments inSymons v.James (1842) 1 Y. & C.C.C. 487, 490;Osborne v.Harvey (1843) 7 Jur. 229, 230; andRhodes v.Ibbetson (1853) 4 De G.M. & G. 787, 792; and to like effect Shepherd v.Keatley (1834) 1 CM. & R. 117, 128, Gurney B.;Cruse v.Nowell (1856) 25 L.J.Ch. 709, 710, Kindersley V.-C;Waddellv. Wolfe (1874) L.R. 10 Q.B. 515, 520, Blackburn and Quain JJ.; 522, Archibald J.;Re White and Hague's Contract [1921] 1 I.R. 138, 146, O'Connor MR.

151 Southby v.Hutt (1837) 2 My. & Cr. 207, especially at p. 215, Lord Cottenham L.C. See too, Dick v.Donald (1827) 1 Bli. (N.S.) 655, 661, Lord Eldon L.C.

152 After considerable doubt, it was settled by the Court of Exchequer inPurvis v.Rayer (1821) 9 Price 448, that a purchaser of leasehold property could insist that thelessor's title should be deduced as well as that of the assignor. This rule was eventually reversed by statute: Vendor and Purchaser Act 1874, s. 2; Conveyancing Act 1881, ss. 3(1) and 13(1).

153 Shepherd v. Keatley (1834) 1 CM. & R. 117, 127, Lord Lyndhurst C.B.; 128, Bolland B.; Sellick v.Trevor (1843) 11 M. & W. 722, 728, Lord Abinger C.B.;Darlington v.Hamilton(1854) Kay 550, 558, Page Wood V.-C; Waddell v. Wolfe (1874) L.R. 9 Q.B. 515, 520, Blackburn and Quain JJ.; 523, Archibald J.; Jones v. Watts (1890) 43 Ch.D. 574, 579, North J.; 584, Cotton L.J.; 586, Lindlcy L.J.

154 Smith v,Robinson (1879) 13 Ch.D. 148, 152, Fry J.

155 Phillips v.Caldcleugh (1868) L.R. 4 Q.B. 159, 162, Lush J.; 163, Hannen J.

156 Such conditions are undoubtedly valid:Jones v.Clifford (1876) 3 Ch.D. 779, 790, Hall V.-C; and see,e.g., Hume v.Bentley (1852) 5 De G. & Sm. 520, Parker V.-C. (where a condition that “the lessors' title will not be shown, and shall not be inquired into” was held to bar an objection by the purchaser thai the lessor had acted outside its statutory powers in granting the lease);Re National Provincial Bank of England and Marsh [1895] 1 Ch. 190, North J. (where a condition that the title should begin with a specified conveyance and that the prior title should “not be required, investigated or objected to”, prevented a purchaser from recovering his deposit because of a defect in title pre-dating the conveyance which he discovered aliunde ).

157 See, e.g.,Re Scott and Alvarez's Contract (No. 2) [1895)2Ch. 603,611–612, Lindley L.J.

158 For a clear early example, seeTomkins v.While (1806) 3 Smith's Rep. 435, 439, Lord Ellenborough C.J.

159 Harpum, , (1992) 108 L.Q.R. 280, 322325.Google Scholar

160 Swaisland v.Dearsley (1861) 29 Beav. 430, 436. See too,Adams v.Lambert (1832) 2 Jur. 1078, 1079, Lord Cottenham L.C.;Taylor v.Martindale (1842) 1 Y. & C.C.C. 658, 661 and 663, Knight Bruce V.-C;Paterson v.Long (1843) 6 Beav. 590, 599, Lord Langdale MR.; Harriett v.Baker (1875) L.R. 20 Eq. 50, 55–56, Malins V.-C.

161 Williams v.Wood (1868) 16 W.R. 1005, 1006, Lord Romilly MR.

162 Dykes v.Blake (1838) 4 Bing. (N.C.) 463, 476, Tindal C.J.

163 Brandling v.Plummer (1854) 2 Drewry 427, 430, Kindersley V.-C. See too,Jones v.Rimmer(1880) 14 Ch.D. 588, 591, Jessel M.R. (C.A.): “Is this a fair particular; is it one in which a purchaser is told what he has to buy, so as to enable him to form an idea of the value of the thing to be purchased”.

164 [1979J 1 W.L.R. 963, applyingWilliams v.Wood (1868) 16 W.R. 1005.

165 [1979] 1 W.L.R. 963, 965.

166 [1979] 1 W.L.R. 963,968.

167 By failing to complete in those circumstances, the purchaser was in breach of contract. However, Walton J. exercised the discretion conferred by the Law of Property Act 1925, s. 49(2) (consideredinfra), to order the repayment of his deposit.

168 Dykes v.Blake (1838) 4 Bing. (N.C.) 463. Obviously if the misdescription is insubstantial, the vendor will still be able to enforce the contract, but unless the conditions of sale state otherwise, it will be with an abatement of the price.

169 Cruse v.Nowell (1856) 25 L.J.Ch. 709.

170 Drysdale v.Mace (1854) 2 Sm. & Giff. 225, Stuart V.-C; 5 De G.M. & G. 103, C.A. in Ch.; Jones v.Rimmer (1880) 14 Ch.D. 588, C.A.;Re Davis and Cavey (1888) 40 Ch.D. 601, 606–607, Stirling J.

171 English v.Murray (1883) 49 L.T. 35, 38–39, Bacon V.-C.

172 Blenkhorn v.Penrose (1880) 43 L.T. 668, Fry J. (a particularly useful judgment). If the particulars had contained statements of fact which were positively untrue, the vendor would not have been able to obtain specific performance merely because the purchaser could have discovered the truth from documents to which he was referred before contract:Camberwell and South London Building Society v.Holloway (1879) 13 Ch.D. 754, 762, Jessel M.R.

173 Quadrant Visual Communications Ltd. v.Hutchinson Telephone (U.K.) Ltd., The Times, 4 December 1991, C.A.

174 Warren v.Richardson (1830) You. 1,8, Alexander C.B.;Re Davis and Cavey (1888) 40 Ch.D. 601, 607, Stirling J.;Re Scott and Alvarez's Contract (No. 2) [1895] 2 Ch. 603, 613–614, Lindley

175 Hyde v.Dallaway (1842) 4 Beav. 606, 608; better reported on this point in 6 Jur. 119, 120, Lord Langdale M.R.

176 [1895] 2 Ch. 603, 615. See tooHume v. Pocock (1865) L.R. 1 Eq. 423, 429, Stuart V.-C.

177 (1830) You. 1, Alexander C.B.; Equity side of the Exchequer. The purchaser had waived his right to investigate the vendor's title—by virtue of his conduct as it happens, rather than because of any condition of sale. In the course of specific performance proceedings, it was discovered that the vendor's title was wholly bad and the remedy was refused.

178 (1830) You. 1, 7–8, Alexander C.B.

179 [1895] 2 Ch. 603, C.A.

180 Ominously described in the particulars “as a small safe investment”.

181 Re Scott and Alvarez's Contract (No. 1) [1895] 1 Ch. 596. There are a number of gradations of title, though these cannot be measured or even defined with scientific precision. Agood title is one which can be forced on an unwilling purchaser under open contract. It is a title free from incumbrances that can be deduced for the full period required by law. Agood holding title is strictly a bad title, but one which is in fact perfectly marketable. It is a title which is imperfect (e.g., it is one which the vendor is unable to prove by an unbroken chain of title for the period required by law), but the holding under which is unlikely to be challenged successfully, normally because any adverse claims have been barred by lapse of time. Abad title is anything else, and includes cases where the property is subject to some undisclosed but enforceable incumbrance; where the vendor has a lesser estate than that which he contracted to sell; or where the vendor has no title at all. Adoubtful title is one which the vendor cannot prove with certainty to be good. On this classification, see J.T. Farrand,Contract and Conveyance (4th ed., 1983), pp. 86–92.

182 [1895] 2 Ch. 603, 613. See too, Rigby L.J. at pp. 615–616.

183 [1895] 2 Ch. 603, 613, Lindley L.J.; 614, Lopes L.J.

184 [1895] 2 Ch. 603,614.

185 Freme v.Wright (1819) 4 Madd. 364, Leach V.-C;Duke v.Burnett (1846) 15 L.J.Ch. 173, Knight Bruce V.-C;Keyse v.Hayden (1853) 1 W.R. 112, Page Wood V.-C;Priddlev. Wood(1864) 4 New Reports 320, Page Wood V.-C;Hume v.Pocock (1865) L.R. 1 Eq. 423, Stuart V.-C

186 “If a purchaser will bargain thus rashly to pay for such a title as the seller has, it is his own fault if his money is placed in hazard by the insufficiency of that title”:Wilmot v.Wilkinson(1827) 9 Dowl. & Ryl. 620, 625, Lord Tenterdcn C.J.

187 See,e.g., Freme v.Wright (1819) 4 Madd. 364.

188 See,e.g., Hume v.Pocock (1865) L.R. 1 Eq. 423.

189 Priddle v.Wood (1864) 4 New Reports 320, 321, Page Wood V.-C.

190 Smith v.Harrison (1857) 26 L.J.Ch. 412, 414, Page Wood V.-C. The vendor was required to deduce the best title that he could:Keyse v.Hayden (1853) 1 W.R. 112, 113, Page Wood V.-C.

191 Romilly v.James (1815) 6 Taunt. 263, 274, Gibbs C.J.;Boyman v.Gutch (1831) 7 Bing. 379, 392, Tindal C.J.;Simmons v.Heseltine (1858) 5 C.B.(N.S) 554, 569–570, Cockburn C.J.

192 Cooper v.Denne (1792) 1 Ves. Jun. 565, 566; 4 Bro. C.C. 80, 87, Lord Commissioner Eyre. It was possible for the Court of Chancery to refer the question of title to one (or more) of the common law courts for an opinion either by means of an issue (if the question were one of fact) or a case (if it were one of law), but the parties could not be compelled to choose this expensive course:Willcox v.Bellaers (1823) Turn. & R. 491, 495, Plumer M.R.

193 Marlow v.Smith (1723) 2 P. Wms. 198, 201, Jekyll M.R.;Shapland v.Smith (1780) 1 Bro. C.C. 75, 76, Lord Thurlow L.C.;Cooper v.Denne (1792) 1 Ves. Jun. 565; 4 Bro. C.C. 80, Lords Commissioners;Sheffield v.Lord Mulgrave (1795) 2 Ves. Jun. 526, 529, Lord Loughborough L.C.;Roake v.Kidd (1800) 5 Ves. 647, 648, Lord Loughborough L.C. Lord Eldon L.C. disliked the practice, preferring the common law rule. Nevertheless, he felt compelled by authority to follow it: Vancouver v. Bliss (1805) 11 Ves. 458, 464–465; Stapylton v. Scott (1809) 16 Ves. 272, 274. There is a vast nineteenth-century case law, much of it hard to reconcile, as to when a title would or would not be regarded as doubtful.

194 This was in part due to the introduction (by the Vendor and Purchaser Act 1874, s. 9) of a mechanism for resolving such doubts, the vendor and purchaser summons:Re Nichols' and Van Joel's Contract [1910] 1 Ch. 43, 46 Cozens-Hardy M.R.

195 Osborne to Rowletl (1880) 13 Ch.D. 774, 780–781, Jessel M.R.;Smith v.Colbourne [1914] 2 Ch. 533, 541, Lord Cozens-Hardy M.R.; 545, Swinfen Eady L.J.;Johnson v.Clarke [1928] 1 Ch. 847, 854–855, Maugham J.

196 M.E.P.C. Ltd. v.Christian-Edwards [1981] A.C. 205, 220, Lord Russell of Killowen.

197 Emery v. Grocock (1821) 6 Madd. 54, Leach V.-C;M.E.P.C. Ltd. v. Christian-Edwards[1978] Ch. 281, 288–290, Goff L.J.

198 InRe Heaysman's and Tweedy's Contract (1893) 69 L.T. 89, 91, Lindley L.J. said that the test was whether there was “the slightest reasonable chance of any such lawsuit being instituted”, but this seems over-generous as to the degree of likelihood that is required. Rather better is Byrne J.'s test inRe the Trustees of Hollis' Hospital and Hague's Contract [1899] 2 Ch. 540, 555: will the purchaser if he completes, “be in danger of immediate litigation”?

199 King v.Stacey (1892) 8 T.L.R. 396, 397, Cave J.

200 (1852) 10 Hare 1, 8. See tooPegler v.White (1864) 33 Beav. 403, 408, Romilly M.R.

201 See,e.g., Re Scott and Alvarez's Contract (No. 1) [1895] 1 Ch. 596, 608, Kay L.J.;Re White and Hague's Contract [1921] 11.R. 138, 144, O'Connor M.R.

202 Edwards v.Wickwar (1865) L.R. 1 Eq. 68, 70, Page Wood V.-C. The same rule existed in the civil law: Pothier,A Treatise on the Contract of Sale, 2.1.4.211 (Cushing, p. 130).

203 A likely example might be where a boundary is in dispute.Cf. Walker v. Boyle [1982] 1 W.L.R. 495, where the point was not raised, but easily could have been.

204 (1886) 16O.B.D. 778.

205 (1886) 16 Q.B.D. 778, 789. See too Lord Esher at p. 787, and Lopes L.J. at p. 790.

206 This is correct in principle. On the facts as assumed, the purchaser and not the vendor would have been in breach of contract.

207 Bestv. Hamand (l879) 12Ch.D. 1, C.A.;Rosenbergv.Cook(1881)8Q.B.D. 162,51 L.J.Q.B. 170, C.A.;Re National Provincial Bank of England and Marsh [1895] 1 Ch. 190, North J.;Re Scott and Alvarez's Contract (No. 2) [1895J 2 Ch. 603, C.A. Sec too the remarks of Stirling J. inRe Davis and Cavey (1888) 40 Ch.D. 601, 606–607.

208 SeeWolstenholme & Cherry's Conveyancing Statutes, 12th ed., by Sir Benjamin Cherry and other s (1932), vol. l, p. 314.

209 For a discussion of the working of the section, see Harpum, [1984] C.L.J. 134, 169–175.

210 See,e.g., the New South Wales Conveyancing Act 1919, s. 55(1), discussed [1984] C.L.J. 134, at p. 170.

211 Dimsdale Developments (South East) Ltd. v.De Haan (1983) 47 P. & C. R. 1, 11–12, Deputy High Court Judge Gerald Godfrey, Q.C. There had been earlier suggestions that a decision that the purchaser's deposit should be returned under section 49(2) had the practical effect of terminating the contract:Schindler\. Pigault (1975) 30 P. & C.R. 328,337, Megarry J.;Faruqiv.English Real Estates Ltd. [1979J 1 W.L.R. 963, 969, Walton J.

212 See especiallyRe Banister (1879) 12 Ch.D. 131, 136, Fry J.;Re Marsh and Earl Cranville(1883) 24 Ch.D. 11, 17, Fry J.

213 See,e.g., the National Conditions of Sale (20th ed., 1981) c. 7(1).Cf. SCS c. 7.3.

214 Re Woods and Lewis's Contract [1898] 2 Ch. 211, 213. See too, in an analogous context. Greaves v.Wilson (1858) 25 Beav. 290, 296, Romilly M.R.

215 Re Sandbach and Edmondson's Contract [1891] 1 Ch. 99, 104, Lord Halsbury L.C.

216 Blaiberg v.Keeves [1906] 2 Ch. 175, 182, Warrington J.

217 A reflection perhaps of the fact that the principle of estoppel was, prior to the Judicature Acts, accepted by courts of common law and equity alike.

218 See,e.g., Harnett v.Baker (1875) L.R. 20 Eq. 50, Malins V.-C;Re Banister (1879) 12 Ch.D. 131, C.A.;Re Marsh and Earl Granville (1883) 24 Ch.D. 11, C.A. The point is not always made clear in the eases. InCharles Hunt Ltd. v.Palmer [1931] 2 Ch. 287, a vendor contracted to sell at auction certain leasehold property to a dairyman, describing it as “valuable business premises”. Under the terms of the lease, the property could only be used as “a ladies' outfitter, fancy draper and manufacturer of ladies' clothing”. By a condition of sale, the lease was available for inspection prior to the auction and the purchaser was deemed to buy with knowledge of its terms. Clauson J. did not find it necessary to consider whether or not the vendor could rely on the condition. He simply exercised his discretion to refuse specific performance and, without deciding whether the vendor was in breach of contract or not, ordered the repayment of the purchaser's deposit under the Law of Property Act 1925, s. 49(2). For a similar case, seeRe Davis and Cavey (1888) 40 Ch.D. 601, Stirling J.

219 See generally the remarks of Fry J. inRe Banister (1879) 12 Ch.D. 131, 135–136; and his extrajudicial analysis inA treatise on the specific performance of contracts (1st ed., 1858), p. 343.

220 Else v. Else (1872) L.R. 13 Eq. 196, Lord Romilly M.R.; Re Cumming to Godbolt (1884) 1 T.L.R. 21, 22, Kay J.;Re Sandbach and Edmondsoris Contract [1891] 1 Ch. 99, 103, Lord Halsbury L.C.;Re O'Flanagan and Ryan's Contract [1905] 1 I.R. 280, Porter M.R.;Rosslyn & Lorimer Estates Ltd. v.Englefidd Holdings Ltd. [1962] E.G.D. 390, 391, Pennycuick J.

221 Elsev. Else (1872) L.R. 13 Eq. 196, 201, Lord Romilly M.R.

222 Harnett v.Baker (1875) L.R. 20 Eq. 50, 55, Malins V.-C.

223 Re Marsh and Earl Granville (1883) 24 Ch. D. 11, 17, Fry J.

224 Priddle v. Wood (1864) 4 New Reports 320, 321, Page Wood V.-C. See too the same judge's comments inKeyse v.Hayden (1853) 1 W.R. 112, 113, and his decision inSmith v.Harrison(1857) 26 L.J.Ch. 412.

225 (1879) 12 Ch.D. 131, Fry J. and C. A. Fry J.'s judgment contains a particularly useful statement of the principles at pp. 135–136. Although his decision was reversed on appeal, this was only because fresh evidence became available to the Court of Appeal.

226 As the purchaser had bargained for no more than a good holding title, that was all that the vendor had to prove.

227 (1879) 12 Ch.D. 131, 143. See too Brett L.J. at pp. 146–147, and Cotton L.J. at p 149.

228 (1883) 24 Ch.D. 11, Fry J. and C.A.

229 [1962] E.G.D. 390, Pennycuick J.

230 Re Woods and Lewis' Contract [1898] 2 Ch. 211, 213, Lindley L.J.

231 (1856) 21 Beav. 331, Romilly M.R. The case was decided on a different point on appeal.

232 There was no relief against forfeiture for breach of a covenant to insure until 1859.

233 (1856) 21 Beav. 331, 335.

234 Duke of Norfolk v.Worthy (1808) 1 Camp. 337, 340, Lord Ellenborough C.J.;Winch v. Winchester (1812) 1 V. & B. 375, 377, Grant M.R.;Wright v.Wilson (1832) 1 M. & Rob. 207, 209, Parke J.;Robinson v.Musgrove (1838) 2 M. & Rob. 92,95, Tindal C.J.;Price v. Macaulay(1852) 2 De G.M. & G. 339, 344, 347, Knight Bruce L.J.

235 (1808) 1 Camp. 337.

236 (1808) 1 Camp. 337, 340. See too,Price v.Macaulay (1852) 2 De CM. & G. 339, L.JJ.

237 SeeRe Turpin and Ahern's Contract [1905] 1 I.R. 85, 103, FitzGibbon L.J., for a particularly clear statement.

238 Re Flanigan and McGarvey and Thompson's Contract [1943] N.I. 32, 38, Black J.

239 Reeve v.Berridge (1888) 20 O.B.D. 523, C.A.;Re White and Smith's Contract [1896] 1 Ch. 637, Stirling J.

240 Edwards v.Wickwar (1865) L.R. 1 Eq. 68, 70; 35 L.J.Ch. 48, 49, Page Wood V.-C. (a particularly influential judgment—see,e.g., Re Scott and Alvarez's Contract (No. J) [1895] 1 Ch. 596, 606, where Lopes L.J. quoted the relevant part of the judgment without attribution). See tooJackson v. Whitehead (1860) 28 Beav. 154, 159, Romilly M.R.;Beioleyv. Carter (1869) L.R. 4 Ch.App. 230, 234, Lord Romilly M.R.;Harnett v.Baker (1875) L.R. 20 Eq. 50, 55, Malins V.-C.

241 [1901] 2 Ch. 666, 670. In that case, a leasehold was subject to the condition that “the vendor's title is accepted by the purchasers”. The vendor failed to disclose before contract that the lease was subject to certain onerous covenants. He could not rely on the condition of sale and was therefore in breach of contract.

242 (1879) 12Ch.D. 131, C.A.

243 (1883) 24 Ch.D. 11, C.A.

244 Farnham Brewery Co. Ltd.v.Hunt & Co. (1893) 68 L.T. 440, 443, Romer J., rejecting the contention that the mere inclusion in the contract of a condition upon which the vendors were unable to rely by reason of the no-disclosure, no-reliance rule, was a ground on which the purchasers might repudiate the contract.

245 (1883) 25 Ch.D. 357; 53 L.J.Ch. 492; 49 L.T. 658, Bacon V.-C. (Both the facts and the decision are better understood from the reports in the Law Times and Law Journal.)

246 (1885) 15 O.B.D. 261, Wills J.; (1886) 16 O.B.D. 778, C.A.

247 It was a right, granted by will and undoubtedly exercised, to take water from a well and t o use a kitchen for washing and brewing. The right was established on the evidence, despite the vendor's assertions that it was no more than a claim. It is a moot point whether the right could in fact be an easement.

248 Ther e was, as has already been noted, an allegation in the case that the land, having been acquired by the vendor without notice of the covenants, was no longer subject to them. The point under consideration only arose if the covenants were still binding.

249 The passage appeared for the first time in the 4th edition at p. 143.

250 In theNottingham case, Wills, J. based his decision on this passage from Dart (p. 156 of the 5th edition, 1875): (1885) 15 Q.B.D. 261, 271Google Scholar. In Heywood, , Bacon, V.-C. cited a different section of the book on the need to draft particulars accurately (pp. 113114): (1883) 25 C h. D. 357,364365.Google Scholar

251 In his judgment in theNottingham case. Wills J. gave what is probably the most definitive statement of the no-disclosure, no-reliance rule: (1885) 15 O.B.D. 261, 271. When the case went on appeal ((1886) 16 O.B.D. 778), it was decided on the basis of misrepresentation, but both Lord Esher M.R. (p. 786) and Lopes L.J. (p. 790) expressed their approval of Wills J.'s judgment, and Lord Esher stated the principle in much the same terms.

252 Walker v.Boyle [1982] 1 W.L.R. 495, 504–507, Dillon J.;Sakkas v.Donford Ltd. (1982) 46 P.& C.R. 290, 302–303, Deputy Judge Lord Grantchester, Q.C.;Rignall Developments Ltd.v.Halil [1988] Ch. 190, 197–199, Millet! J.

253 Faruqi v.English Real Estates Ltd. [1979] 1 W.L.R. 963, a case in which specific performance was refused because of a misleading condition, was relied upon inWalker v.Boyle, Sakkas v. Donford Ltd., andRignall Developments Ltd. v.Halil, all cases on the no-disclosure, no-reliance rule.

254 [1925] Ch. 350, Russell J.

255 Presumably under the Conveyancing Act 1881, s. 14(1) (what is now the Law of Property Act 1925, s. 146(1)).

256 See,e.g., Charles Hunt Ltd. v.Palmer [1931] 2 Ch. 287;Faruqi v.English Real Estates Ltd. [1979] 1 W.L.R. 963.

257 Dimsdale Developments (South East) Ltd. v. De Haan (1983) 47 P. & C.R. 1, Deputy Judge Gerald Godfrey Q.C.

258 Re Scott and Alvarez's Contract (No. 1) [1895] 1 Ch. 596, C.A.;Faruqi v.English Real Estates Ltd. [1979] 1 W.L.R. 963, 969, Walton J.

259 See Part II,B.2 andC of this article,supra.

260 InRe Forsey and Hollebone's Contract [1927] 2 Ch. 379, 387, Ev e J. held that a purchaser was deemed to contract with knowledge of all land charges and local land charges. This was because under the Law of Property Act 1925, s. 198, the registration of such charges constitutes “actual notice” of the matter registered “to all persons for all purposes”. This solecism—which had disastrous conveyancing implications—was finally laid to rest by Milieu J. inRignall Developments Ltd. v.Halil [1988] Ch. 190, 199–203. For a full discussion, see Harpum, [1987] Conv. 291.

261 Yandle & Sons v.Sutton [1922] 2 Ch. 199, 210, Sargant J.

262 Caballero v.Henty (1874) L.R. 10 Ch. App. 447, L.JJ. The law had once been otherwise: see, e.g., Hallv. Smith (1808) 14 Ves. 426,433–434, Grant MR. For the way in which the distinction between “patent” and “latent” encumbrances underwent a transformation, see Harpum, (1992) 108 L.Q.R. 280, 321–325.

263 Nottingham Patent Brick and Tile Co. v.Butler (1885) 15 Q.B.D. 261, 271, Wills J.;Re Turpin and Ahern's Contract [1905] 1 I.R. 85, 103, FitzGibbon L.J.;Simpson v.Gilley (1923) 92 L.J.Ch. 194, 201–202, Astbury J.;Becker v.Partridge [1966] 2 Q.B. 155, 171–172, Danckwerts L.J.;Rignall Developments Ltd. v.Halil [1988] Ch. 190,198, Millett J.

264 Re Scott and Alvarez's Contract (No. 2) [1895] 2 Ch. 603, C.A.

265 Or, presumably, in the case where the vendor is a mortgagee selling under its paramount powers, the circumstances surrounding the execution of the mortgage.

266 [1966] 2 Q.B. 155, better reported at [1966] 2 All E.R. 266.

267 It can be ousted by an expression of contrary intention in the contract: section 45(10).

268 That is the present statutory period for the commencement of title: Law of Property Act 1969, s. 23.

269 In such circumstances, it would be the purchaser who failed to complete who would be in breach of contract, not the vendor. However, the vendor would be unable to obtain specific performance and the purchaser would probably recover his deposit under the Law of Property Act 1925, s. 49(2).

270 It has been argued elsewhere that the rule ought to apply equally to a condition which restricts the vendor's liability for a failure to give vacant possession: Harpum, [1988] Conv. 324 and 400. This is because of the close coincidence between the obligation to show a good title and the duty to give vacant possession on completion.

271 Heywood v. Mallalieu (1883) 25 Ch.D. 357;Nottingham Patent Brick and Tile Co. v.Butler (1885) 15 Q.B.D. 261;Sakkas v.Donford Ltd. (1982) 46 P. & C.R. 290;Rignall Developments Ltd. v.Halil [1988] Ch. 190.

272 Nottingham Patent Brick and Tile Co. v.Butler (1885) 15 Q.B.D. 261.

273 Re Haedicke and Lipski's Contract [1901] 2 Ch. 666;Becker v.Partridge [1966] 2 Q.B. 155.

274 Else v. Else (1872) L.R. 13 Eq. 196.

275 Edwards v.Wickwar (1865) L.R. 1 Eq. 68.

276 Simpson v.Gilley (1923) 92 L.J.Ch. 194. InWalker v.Boyle [1982] 1 W.L.R. 495, 504–506, Dillon J. extended the no-disclosure, no-reliance rule to a non-annulment clause which purported to exclude liability for misrepresentations. Although the misrepresentation had been innocent, the true facts lay within the vendor's knowledge and she could not rely on the condition. Maugham J.'s decision inRe Belcham and Gawley's Contract [1930] 1 Ch. 56 seems to suggest that the vendor can rely upon a non-annulment clause even where he is aware of the defect in his title but has not disclosed it. Insofar as it does, it is suggested that it is contrary to principle. However, in that case the defect was not of such a substantial character that the purchaser could repudiate. The non-annulment clause provided for compensation in such circumstances, which the purchaser duly received. The result would have been the same under open contract even if the vendor had been unable to rely on the condition.

277 This may be inferred fromRosenberg v.Cook (1881) 51 L.J.O.B. 170, 172, where Jessel M.R. said, “the vendor here had actual and quiet possession of the land, and as he sold fairly, not knowing that he had a bad title, he is not to be deprived of the benefit of the special condition… ”

278 Rignall Developments Ltd. v.Halil [1988] Ch. 190.

279 The present form of the condition, SCS c. 4.5.2, provides for rescission by the vendor where he is “unable or, on reasonable grounds, unwilling to satisfy any requisition”, and the purchaser refuses to withdraw the requisition.

280 Mawson v.Fletcher (1871) 40 L.J.Ch. 131; L.R. 6 Ch. App. 91, L.JJ.;Selkirk v.Romar Investments Ltd. [1963] 1 W.L.R. 1415, P.C.

281 These are considered in detail elsewhere; Harpum, [1990] Conv. 150, 157ff.

282 Harpum, [1990] Conv. 150, 158–159.

283 Harpum, [1990] Conv. 150, 161ff.

284 A mortgage is a removable encumbrance and need not be disclosed prior to contract if it will be discharged upon completion out of the proceeds of sale. If a vendor intends a purchaser to take subject to a removable encumbrance, it would seem axiomatic that this should be made clear to the purchaser prior to the exchange of contracts.

285 (1864) 4 New Reports 320, Page Wood V.-C. As it happens, Page Wood V.-C. decided Edwards v.Wickwar (1865) L.R. 1 Eq. 68, perhaps the first case on the no-disclosure, no-reliance rule, just one year later.

286 [1922] 2 Ch. 514, Sargant J. The decision is a particularly unattractive one. On the renewal of their lease, the tenants were given an option to purchase “all the estate interest and title” that the landlords then had in the premises. The tenants did not at that stage investigate the vendors' freehold title, and indeed it is a moot point whether they would have been entitled to do so: Cf Vendor and Purchaser Act 1874, s. 2. It was only on the exercise of the option some four years later, that the existence of the mortgage was discovered.

287 (1888) 58 L.T. 560, Kekewich J. The decision was cited inFowler v.Willis but not considered.

288 (1888) 58 L.T. 560, 562.

289 Cf Best v.Hamand (1879) 12 Ch.D. 1, C.A., a case concerning a sale of surplus land by a railway company. The company had not complied with the Lands Clauses Act 1845, which required them to offer such land to adjoining land owners first. They did not disclose this fact, but sold subject to a sweeping condition of sale, which meant that “the purchaser is to be content with a mere conveyance of such title as the vendor had” (p. 11, Bramwell B.). Although no question of specific performance arose, the purchaser was unable to recover his deposit when he discovered the truth. The case has been criticised precisely because the no-disclosure, no-reliance rule should have applied: Fry,Specific Performance of Contracts, (5th ed., 1911) pp. 648–649.

290 (1834) 1 Bing. (N.C.) 370.

291 This was a deeply held article of faith in equity courts throughout the nineteenth century. In specific performance proceedings, the vendor's title was subjected to a very thorough scrutiny before a Master, to ensure that it was one which the court could properly force on the purchaser. A finding that the title was good, gave the purchaser the same kind of assurance that he would now obtain from the fact that the vendor was registered with an absolute title: see Harpum, (1992) 108 L.Q.R. 280, 292–299.

292 Commonly, when a vendor relies upon a non-annulment clause, the purchaser may be able to challenge that reliance on two grounds:(i) because the defect or deficiency is of a substantial character; or(ii) because the vendor knows or ought to have known of it. The former may in practice be easier to prove then the latter.

293 See,e.g., SCS c. 3.1 (“adverse interests”) which is not only complex and confused, but is in part ineffective precisely because of these restrictions.Cf. SCS c. 7.1., which is, by contrast, clearly drafted against the background of them.

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