The house sale contract provided for vacant possession on completion, notwithstanding that it was in fact occupied by a protected tenant who in the event declined to leave. The vendor offered to accept a reconveyance of the house, but that offer was refused by the purchaser who brought an action for breach of contract. The vendor contended that the purchaser had failed to mitigate by refusing his offer to accept a reconveyance.
Held: The argument failed. Where the purchaser’s only remedy was to recover damages for breach of contract he was not bound to take steps that would deprive him of his right to retain the property and recover damages for the breach of contract. It cannot be right that a refusal to accept a defendant’s offer: ‘even if such refusal were wholly capricious, was something that deprived the plaintiff of his right to substantial damages altogether.’
Cairns LJ said that the offer of buy-back was indistinguishable from an offer to pay damages of andpound;1,900. The plaintiff was not bound to choose between his two remedies: ‘if [the defendant’s] contentions were right it would logically follow that if the offer . . had been not ‘We will take the house back’ but ‘We will pay you andpound;1,900 damages’ and the plaintiff had then, for some reason, refused that offer and had brought an action for damages it could be said that he ought to have accepted the offer and thereby mitigated his damage and therefore he was entitled to nothing at all. That cannot be. Clearly what would happen in those circumstances would be that the defendants, if they were wise, would make a payment into court of the andpound;1,900 and the plaintiff would suffer in respect of costs. But it could not possibly be suggested that the refusal to accept the offer, even if such refusal were wholly capricious was something that deprived the plaintiff of his right to substantial damages altogether.’
Judges:
Cairns LJ
Citations:
[1975] 1 WLR 870
Cited by:
Not approved – Sotiros Shipping Inc v Sameiet; The Solholt CA 1983
The seller had failed to deliver the vessel he had sold by the delivery date. The buyer cancelled and requested return of his deposit, also claiming damages because the vessel was worth $500,000 more on the delivery date than she had been when the . .
Applied – Copley v Lawn; Maden v Haller CA 17-Jun-2009
The parties had been involved in a road accident. The insurer for the liable party offered a car for use whilst the claimant’s car was being repaired. The claimants had rejected that offer, and now appealed against a refusal to award them the cost . .
Lists of cited by and citing cases may be incomplete.
Damages, Contract
Updated: 02 May 2022; Ref: scu.375998
