The parties agreed for the pursuer to erect a poor-house, to be completed and the keys were to be delivered by a specified day, under a penalty of andpound;5 per week of delay in completing it.
Held: This was not a penalty but a provision for pactional damages. Since the pursuer’s claim for the price was itself illiquid, there could be no objection to the defender seeking to establish his countervailing illiquid claim for the appropriate pactional damages in the event that the jury held that the pursuer had not completed the works in time. Depending on the finding of the jury as to whether the work had been done properly, and as to any sum due as liquidated damages for delay, the pursuer’s claim for the price would be reduced or, conceivably, extinguished.
Lord Justice Clerk Inglis said: ‘Every action on a mutual contract implies that the pursuer either has performed, or is willing to perform, his part of the contract; and it is, therefore, always open to the defender to say that under the contract a right arises also to him to demand performance of the contract before the pursuer can insist in his action.’
Judges:
Lord Justice Clerk Inglis
Citations:
(1861) 23 D 646
Jurisdiction:
Scotland
Cited by:
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 06 December 2022; Ref: scu.410710
