Say v Smith: 1563

A lease for a term certain purported to add a term which was uncertain.
Held: The lease was valid only as to the certain term. Anthony Brown J said:’Every contract sufficient to make a lease for years ought to have certainty in three limitations, viz. in the commencement of the term, in the continuance of it, and in the end of it; so that all these ought to be known at the commencement of the lease, and words in a lease, which don’t make this appear, are but babble.
And these three are in effect but one matter, showing the certainty of the time for which the lessee shall have the land, and if any of these fail, it is not a good lease, for then there wants certainty. Here in the principal case there is none of these three certainties for any term beyond the first ten years are passed, there is a condition here appointed which shall be performed before any new term shall commence, and before the condition is performed there shall be no lease, for such is the limitation of the lessor. Every lease for years ought to have a term certain and or determination. Where the demise and grant is to hold from ten years to ten years out of memory, if the words, out of memory, be referred to the time to come, it does not signify any certainty of continuance, for he said that a thousand years to come are not more out of memory than a day to come, for that which has not come is not within memory, but memory is referred to the time passed. So that it be referred to the time to come, it cannot be known whether the, or a hundred, or a thousand years be intended thereby, for the one of these is nor more out of memory than another.’


Anthony Brown J


(1563) 1 Plowden 269, (1563) 75 ER 410

Cited by:

CitedPrudential Assurance Co Ltd v London Residuary Body and Others HL 16-Jul-1992
The parties signed a memorandum of agreement to let a strip of land from 1930 until determined as provided, but the only provision was that the lease would continue until the land was needed for road widening and two months’ notice was given. The . .
CitedBerrisford v Mexfield Housing Co-Operative Ltd SC 9-Nov-2011
The tenant appealed against an order granting possession. The tenancy, being held of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 01 May 2022; Ref: scu.259625