Contract – Sale of Entailed Estate – Essentials of Sale – Reduction – Alleged Misunderstanding by Vendor – Trial – Issues – Essential Error – Misrepresentation.
An heir of entail in possession having entered into a contract for the sale of the entailed estate, the Court construed the contract to mean that the seller was under a legal obligation to apply to the Court for approval of the sale under the 5th section of the Entail Amendment Act 1853, as amended by the 13th section of the Entail Act 1882.
The seller, proceeding on the construction that the sale was absolute, raised an action for the reduction of the contract on these grounds, (1) that the offer was obtained by fraud and circumvention; (2) that he was under essential error, in respect that in entering into the contract he believed he would be bound by it to apply to the Court for an order of sale under the Entail Act 1882 whereby an entailed estate might be converted into money, and would not be bound to sell at the price proposed if the Court should hold it to be inadequate; (3) error induced by the purchaser’s agent; (4) false and fraudulent representations by the said agent. The Lord Ordinary appointed the issue of facility and circumvention to be the issue for the trial of the cause. On a reclaiming-note the First Division adhered, and so far the parties acquiesced. Their Lordships refused an issue of essential error, on the ground that the error alleged was not in essentialibus, but concerned only the import and effect of the contract, Lord Shand dissenting, on the ground that the pursuer was entitled to both issues.
The pursuer appealed to the House of Lords, and asked an additional issue-the second or else the third, and if neither was granted, then the fourth.
Held ( aff. the judgment of the Court of Session) that the alleged error of the pursuer was by itself insufficient to invalidate his consent; and ( rev. the judgment of the Court of Session) that in view of the pursuer’s averments an issue of essential error induced by the purchaser’s agent must be allowed.
Judges:
Lords Herschell, Watson, and Macnaghten
Citations:
[1890] UKHL 469, 27 SLR 469
Links:
Jurisdiction:
Scotland
Contract
Updated: 28 June 2022; Ref: scu.636730