All that passed, either oral or in writing, in the negotiations leading up to a completed contract of sale of heritable property is admissible in evidence to prove what was the subject of the sale, not to alter the contract, but to identify the subject.
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Per Lord Kinnear-‘The meaning of a descriptive name in a particular contract cannot be determined by a fixed rule of law without regard to the facts of the case. . . I agree that a contract to sell the lands contained in a certain title is perfectly possible, and would give the purchaser right to everything which the seller and his predecessors had in fact possessed under that title. I would be disposed to concede further that if an estate is sold under a general name, without reservation or restriction expressed in the contract, or capable of being proved by competent evidence, the reasonable inference is that what is intended is the estate so named which the seller holds under a valid title. And if it be assumed that the contract covers the whole estate, the buyer would be entitled to a disposition according to the description contained in the existing titles, because ex hypothesi the intention of the contract is to transfer to the disponee everything to which the disponer had right. But if there be any question whether the subject sold is less or more than the whole estate possessed, that cannot be solved by the title unless the contract has been made with express reference to the title. The mere coincidence of names proves nothing, because names are not used in the ordinary transactions of business with exact reference to title-deeds, and the local use of estate names may vary indefinitely as boundaries may shift from time to time.’
Judges:
Lord Chancellor (Loreburn), Earl of Halsbury, Lord Kinnear, and Lord Shaw
Citations:
[1910] UKHL 761, 47 SLR 761
Links:
Jurisdiction:
Scotland
Contract
Updated: 28 March 2022; Ref: scu.619797