Bain v Fothergill: HL 1874

The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ‘ the usual covenant for our protection as standing between you and our lessors’. A deposit was paid, but the lessors refused consent. The plaintiffs sought return of their deposit, their costs and expenses of investigating title, and for loss of bargain.
Held: The case fell within Flureau -v- Thornhill, and damages were limited to the recovery of the deposit and expenses of investigating title. ‘It is recognised on all hands that the purchaser is not to be held entitled to recover any loss on the bargain he may have made, if in effect it should turn out that the vendor is incapable of completing his contract in consequence of his defective title.

Hatherley L
(1874) LR 7 HL 158, 43 LJ Ex 243, 31 LT 387, 39 JP 228, 23 WR 261
England and Wales
ApprovedFlureau v Thornhill 1746
A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.183266