The claimant applied for a loan secured against a property owned with his wife. The defendant instructed solicitors who reported on title with an undertaking that documents would be executed before completion. They sent the mortgage to Mr. and Mrs. Zwebner to sign, but Mr. Zwebner forged her signature. She now brought proceedings against the defendant saying that the mortgage did not bind her. The defendant claimed against the solicitors in negligence and for breach of contract in failing to comply with the undertaking given in the report on title. The court considered the general nature and scope of a solicitor’s duty acting for a lender. They argued that it would be wrong to construe the undertaking that the documents would be ‘properly executed’ as giving rise to a warranty that they had been signed by Mrs. Zwebner in the presence of a witness. This would transfer the entire risk of fraud onto one who was merely providing professional services. The expression ‘properly executed’ should be limited to matters of form and the mechanics of completion.
Held: It was difficult to read the undertaking in the way suggested. The consequences of giving weight to the word ‘properly’ were not so unreasonable as to justify a construction which largely disregarded it. The solicitors were in breach of contract, having accepted an unqualified obligation to obtain the signature of Mrs. Zwebner.
Judges:
Robert Walker, Hobhouse and Waller LJJ
Citations:
[1998] EWCA Civ 1035, [1998] PNLR 769
Jurisdiction:
England and Wales
Cited by:
Cited – Midland Bank Plc v Cox McQueen (A Firm) CA 26-Jan-1999
Solicitors were instructed by the bank to obtain the signature of a client and of his wife to a motgage. The deed was signed by the husband and a woman pretending to be the wife.
Held: The court said that it was asked whether the bank intended . .
Cited – Platform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Legal Professions
Updated: 19 November 2022; Ref: scu.144514