The pursuers were contracted to sell a property with sole selling rights. The contract was terminable on two weeks notice. Notice was given, and another company engaged. A buyer confused the two agents and obtained details from the pursuer’s office, and later bought. The pursuer sought payment for the sale. The Sherriff had declined to allow a claim where a purchaser was introduced outside the sole selling agency period, interpreting the clauses contra preferentem. The agency appealed refusal of its claim.
Held: The appeal failed. The case of Harwood concerned a contract with the same wording and was important for this case, but what was meant by an ‘introduction’ in the Harwood case wa settled by a concession which did not apply in this case, and may be unsound. The contra preferentem rule applies ‘where the terms of the contract are, in effect, dictated by one party and can only be accepted or rejected by the other, the contract should, where the meaning is doubtful, be read in the sense least advantageous to the party who drafted it. ‘ The terms here were not drafted by the pursuers, but derived from consumer protection regulations.
Judges:
Lord Coulsfield
Citations:
[2001] ScotCS 148
Links:
Statutes:
Estate Agents (Provision of Information) Regulations 1991, Estate Agents Act 1979 18
Jurisdiction:
Scotland
Citing:
Approved – Harwood T/A RSBS Group v Smith and Smith and Bedwell Watts and Company (a Firm) CA 14-Nov-1997
An estate agent with sole selling rights was not entitled to claim commission on a sale where he had contributed no act to the sale, even though his terms were specific enough to deal with the particular circumstances which had arisen here. Such a . .
Cited – Brodie, Marshall and Co (Hotel Division) Ltd v Sharer 1988
The defendant resisted payment of his estate agent’s charges. The agency contract gave the agent sole selling rights, but the purchaser was found on the vendor’s own initiative. The terms made commission was payable if ‘we introduce directly of . .
Cited – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – Property Choice Limited v Fronda 1991
. .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Lists of cited by and citing cases may be incomplete.
Agency
Updated: 12 July 2022; Ref: scu.168992