The Gazette 1979

GAZETTE

MARCH 1979 SOCIETY OF YOUNG SOLICITORS SECTION DID YOU KNOW?

The Doctrine of Part Performance was an interference prompted by the concern of the Courts of Equity with the principles of fairness and justice and was recognised from the very earliest times following the passing of the Act into law. Nevertheless, notwithstanding the antiquity of the Doctrine, the Courts are still far from being in agreement as to the circumstances under which it is operative. Chitty (24th 3dition paragraph 251) refers to the Doctrine as follows:— "Where the Plaintiff has partly performed an oral Contract required by the Statute to be evidenced in writing, in the expectation that the Defendant would perform the rest of the Contract, the Court will not allow the Defendant to escape from his Contract upon the strength of the Statute but may order specific performance of the oral contract". The Rationale for the intervention of the Courts of Equity was to preclude the Courts being used as an instrument of fraud. The purpose for the passing of the State of Frauds was to ensure, in so far as it was possible to do so, that there would be strong evidence of the transaction alleged to have taken place. The Courts of Equity wanted to provide fairness in accordance with equitable principles but as against this felt it incumbent upon them to support the intent of the Statute by allowing reliance to be placed only upon acts of part performance which themselves indicated the existence of the Contract which it was sought to have performed. The acts relied upon, if they were to constitute Part Performance, had to corroborate the contract and therefore the Doctrine would not frustrate legislation beyond what was necessary to give effect to the equitable principals of fairness and justice. The authorilative source of the law on Pa rt Performance is the case of Maddison v. Alderson [1883] C.A. 467 where it was held that taking the facts alleged to constitute Part Performance in isolation they were not necessarily referable to the alleged contract. This case is to be compared with Wakeham v. MacKenzie [1968] 2 AER 783 where Stamp J. concluded that the true rule was that the operation of the acts of Part Performance required only that the acts in question be such as must be referred to some contract and may be referred to the alleged one. The situation in England was that after the hearing of Wakeham v. MacKenzie there was considerable doubt in the minds of practitioners as to whether the acts relied upon would have to be prima facie referable simply to the existence of a Contract or alternatively whether they would have to be such as to point to a Contract relating to land. The matter was considered in the context of a case largely concerned with the question as to whether the making of a payment of money could be considered as an act sufficiently unequivocal as to constitute Part Performance of an alleged contract relating to land. Snell (26th edition page 653) says "Payment of a part or even apparently the whole, of the purchase money is not sufficient part performance of a contract for the sale of land". The view when expressed was in accord with numerous statements to the same effect in various judgments and the reasoning behind these statements would appear to be based on the fact that a payment of money is considered

Did you know that a convenant is a promise under Seal? You should not give a covenant in a document therefore unless the document is executed under Seal. Did you know that by virtue of Section 6 (i) of the Conveyancing Act 1881 a conveyance of land shall be deemed to include and shall operate to convey with the land "all the buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights and advantages whatsoever appertaining or reputed to appertain to the lands or any part thereof or at the time of the conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof'. Furthermore by virtue of Section 2 (v) of the said Act a conveyance includes inter alia an assignment and a lease. Accordingly even if one omits to include in a Deed an assignment of a right of way which is appurtenant to the land being conveyed, that right will nonetheless pass to the Purchaser of the lands. Did you know that the Statute of Frauds was enacted "for securing purchasers, preventing forgeries and fraudulent gifts and conveyances of lands, tenements and hereditaments, which have been frequently practised in this Kingdom, especially by Papists, to the great prejudice of the Protestant interest thereof, and for settling and establishing a certain method, with proper rules and directions for registering a memorial of all deeds and conveyances, which from and after the 25th day of March in the year of Our Lord One thousand seven hundred and eight shall be made and executed". Does the knowledge that the Vendor is a "Papist" therefore put the Solicitor for the Purchaser under obligation to raise further requisitions in this respect? Report on a Lecture given to the Society of Young Solicitors in Wexford at the 1978 Autumn Seminar The Erosion of the Statute of Frauds by the Doctrine of Rart Performance B y Peter Sutherland, B.L. The Paper presented by Peter Sutherland, B.L. to the Society examined the extent to which the requirement of the Statute of Frauds (Ireland) Act, 1695 relative to the Provision of a written contract for the sale of land or any interest in land had been modified. The Statute itself provides, in relation to contracts referable to lands, that no action shall be brought against pny person upon any contract or sale of lands . . . or any mterest in or concerning them . . . "unless the agreement u Pon which such action shall be brought, or some Memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thelreunto by him lawfully authorised". Apart from the modification made by Section 4 of the Landlord and Tenant (Ireland) Act, 1860 relating to certain Tenancy Agreements the principal erosion of the Statute of Frauds has developed through the Doctrine of Part Performance.

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