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Segal Securities Limited v Thoseby: 1963

References: [1963] 1 QB 887, [1963] 1 All ER 500
Coram: Sachs J
Ratio: To demand rent may waive a right to forfeiture. Sachs J said: ‘When one looks at the authorities, it is, however, clear that a demand can operate as a waiver in the same way as an acceptance.’ Also the landlord’s own behaviour can be taken into account when deciding whether to grant relief against forfeiture.
A waiver occurs even where the demand or acceptance of rent was made without prejudice or under protest that it was not to be construed as a waiver.
Accepting rent can be a waiver of the right to terminate even if the landlord purports to accept the rent, ‘without prejudice’. Sachs J said: ”As both demand and acceptance respectively are in law merely different forms of a notification by a landlord of election not to avoid or forfeit the Lease, to my mind no distinction can nowadays be drawn between them in relation to a question whether the label ‘Without Prejudice’ affects their quality as an election. There is no reason of principle why a right of forfeiture arising from a failure to pay rent, cannot be waived in exactly the same way as a right of forfeiture arising from a breach of any other covenant in the Lease. In London and County (A&D) Ltd v Wilfred Sportsman Ltd [1971] 1 Ch 764, at 786 Russell LJ (with whom Lord Donovan and Megaw LJ agreed) said: ‘The other argument put forward was that there can never be waiver of forfeiture for non-payment of rent by recognition of the continued existence of the Lease because, as has often been said, a right of re-entry for non-payment of rent is a mere security for the payment. I am not aware of any authority for this proposition, and I see no justification in principle for making this distinction between a default in an obligation to pay rent and any other obligation. Of course, rent may be demanded after the forfeiture days are passed, and, indeed, part payment accepted on account without waiving the forfeiture; this does not recognise the continued existence of the Lease beyond the date when that rent was payable. I refer in this connection also to the passage in Shepherd v Berger [1892] 1 QB 597, 599, which appears to me inconsistent with the proposition advanced.”
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Last Update: 19-Aug-16
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