The respondents had sought specific implement of an obligation under missives for the payment of the purchase price of land.
Held: There can be no abandonment of a right by way of confession unless the party concerned is aware that he has the right in question and acts in such a way as to show that he has in fact abandoned it. Lord Keith of Kinkel he set out the definition of waiver and the courts approach thereto: ‘The word ‘waiver’ connotes the abandonment of a right. (See: Banning v Wright [1972] 1 WLR 972 per Lord Hailsham of St Marylebone LC 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 conclude from these cases that the question whether or not there has been a waiver of a right is a question of fact, to be determined objectively upon a consideration of all the relevant evidence.’
Judges:
Diplock, Edmund-Davies, Fraser of Tullybelton LL
Citations:
[1979] UKHL 8, 1979 SLT 147, 1979 SC (HL) 56
Links:
Jurisdiction:
Scotland
Contract, Land
Updated: 22 July 2022; Ref: scu.279743