Romer LJ said that, in the absence of pressure or duress, or other vitiating elements, there was no jurisdiction to provide for relief against forfeiture in the event of the purchaser’s default in contracts other than those relating to land.
Denning and Somervell LJJ doubted the correctness of Farwell J and held that where the sum forfeited was out of all proportion to the damage and it was unconscionable for the vendor to retain it, then equity would intervene : even though at common law there was no cause of action whereby the purchaser could have recovered the money paid over.
Denning LJ asked: ‘Suppose a buyer has agreed to buy a necklace by instalments, and the contract provides that, on default in payment of any one instalment, the seller is entitled to rescind the contract and forfeit the instalments already paid. The buyer pays 90 per cent. of the price but fails to pay the last instalment. He is not able to perform the contract because he simply cannot find the money. The seller thereupon rescinds the contract and retakes the necklace and resells it at a higher price. Surely equity will relieve the buyer against forfeiture of the money on such terms as may be just’
Judges:
Romer, Denning and Somervell LJJ
Citations:
[1954] CLY 1463, [1954] 1 QB 476
Jurisdiction:
England and Wales
Citing:
Considered – Mussen v Van Diemen’s Land Company ChD 1938
Land was to be sold in stages to the purchaser.
Held: Specific performance, with or without compensation, would be ordered at the suit of a purchaser wherever possible, so long as he was able and willing to complete. Farwell J said : ‘There . .
Cited by:
Considered – Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd PC 22-Feb-1993
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of . .
Lists of cited by and citing cases may be incomplete.
Contract, Equity
Updated: 29 April 2022; Ref: scu.187692