The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash from her liability under the legal charge.
Held: The appeal succeeded. Pitchford LJ said: ‘the current state of the law is that, in order for the creditor to reserve his rights against co-debtors, he should expressly reserve those rights in his agreement. If he does not make express reservation the court will need to determine whether a term is necessarily to be implied from the circumstances which existed at the time of the agreement. In this case there was only one version of the agreement in evidence before the learned judge and that was provided by Mr Upton whose evidence the judge, to a large extent, accepted. There was no evidence before the judge of any express reservation by the claimant of its rights to pursue Ms Nash and the judge made no finding that such a reservation had expressly been made.’
Judges:
Sedley, Pitchford, Gross LJJ
Citations:
[2010] EWCA Civ 1247, [2011] BPIR 381
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Matthey v Curling HL 1922
During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the . .
Cited – Deanplan Limited v Mahmoud 1992
The court considered whether a release of one of joint contractors released the other contractors. He said: ‘An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released . .
Cited – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
Cited – Pinnel’s Case, Penny v Core CCP 1602
Payment of Lesser Sum Not Satisfaction
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may . .
Cited – Johnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
Lists of cited by and citing cases may be incomplete.
Banking, Contract
Updated: 09 December 2022; Ref: scu.425795