The Gazette 1981

JULY AUGUST 1981

GAZETTE

"My purpose in phoning you was to see how you would meet me with the cattle and machinedry. However I will depend on the reputation I have got of you to meet me on this. As one West of Ireland man to another I know you will get me off to a good start". By letter of the same date (16 December 1974) the PlaintifTs solicitors returned the contract executed by the Plaintiff (purchaser) with the deposit to the Defendant's solicitors. When sending requisitions on title to the Defendant's solicitors on 20 December 1974 the PlaintifTs solicitors said:- "Our client wishes to have the sale closed on or before the 5th day of January as we understand that your Mr. Marren will be departing for Geneva on the 5th day of January". A meeting between the Plaintiff and the Defendant arranged for 3 January 1975 was cancelled when the Defendant's manager telephoned the Plaintiff to inform him that the Defendant had changed his mind about selling the cattle to the Plaintiff as the Defendant proposed to take the cattle to England. On 3 January 1975 the Defendant's solicitor told the Plaintiffs solicitors that he (the Defendant's solicitor) could not close the sale on 7 January 1975 (the contract closing date) because he was going away on 5 January 1975 and the Defendant's solicitor suggested it be closed on 5 January 1975, but this was not feasible because the question of the cattle and the silage had not been resolved. By letter of 7 January 1975 the Plaintiffs solicitors told the Defendant's solicitors that the purchase money was available and suggested closing the sale on 11 January 1975. In mid-January 1975 arrange- ments were made to have the cattle valued by an independent valuer but his valuation was not acceptable to the Plaintiff. The sale was subsequently closed on the 21 January 1975 with the Plaintiff purchaser purchasing cattle elsewhere to stock the lands being purchased. The Plaintiff claimed that the Plaintiff had expressly made it known to the Defendant before the agreement was executed that the Plaintiff urgently required vacant possession for the purpose of

stocking the lands and that in these circumstances it was an implied term of the agreement that time was to be deemed of the essence. Alternatively, the Plaintiff claimed that it was an implied term of the agreement that the same would be completed without any undue delay. The Plaintiff claimed that the price of cattle increased between 7 January 1975 (contract closing date) and 21 January 1975 (actual closing date) and that he suffered the loss of £19,400 being the extra amount paid by him in stocking the lands. The Court considered that although the Plaintiffs claim was at common law for damages it must approach the case as if it were a claim for equitable relief. The Court, referring to the equitable maxim that the time fixed for the completion of a contract was not of the essence of a contract noted the dictum of Lord Parker in Stickney v. Keeble [19151 A.C. at page 416 as follows: "This maxim never had any application to cases in which the stipulation as to time could not be disregarded without injustice to the parties, when, for example, the parties, for reasons best known to themselves, had stipulated that the time fixed should be essential, or where there was something in the nature of the property or the surrounding circumstances which would render it inequitable to treat it as a non essential term of the contract". Held (per Hamilton J.) that there was nothing in the nature of the property in the sale which would make it inequitable in the particular case for the Court to treat the time fixed for completion of the contract for sale as a non-essential term of the contract. In so holding, the Court noted that tht contract provided only three weeks between the date of execution of the contract and the date fixed for completion and that the Defendant had reserved the right to hold an auction and had provided for the purchase by the Plaintiff of silage at an agreed price and for the price to be fixed in default of agreement by an auctioneer and for that silage purchase price to be paid with the balance of the purchase money for the property on closing. The Court also noted that Christmas and New Year had intervened. The PlaintifTs claim for damages for delay was therefore dismissed.

Recent Irish Cases

BREACH OF CONTRACT Claim for Damages arising out of delay in completion of Sale — whether "time of the essence". The Defendant agreed by contract in writing dated 17 December 1974 to sell certain lands in Co. Meath to the Plaintiff for £325,000. Special Conditions 3 and 4 of the contract provided as follows: "(3) The Vendor reserves the right to hold an auction of all the stock, farm machinery, equipment and utensils on the properties which items are specifically excluded from the sale. (4) Prior to the completion of the sale the Purchaser shall purchase the silage stored on the lands the subject matter of this contract and in the event of default of agreement on the price then at a price to be fixed by an auctioneer to be nominated by the vendor which said auctioneer shall act as an expert; the purchase monies for such silage to be paid with the balance of the purchase monies on closing". The date fixed for completion was 7 January 1975. Time was not made of the essence of the contract. During the negotiations prior to the signing of the contract the Defendant had said he would sell the cattle on the lands to the Plaintiff at market value. There was no reference to the cattle in the contract sent by the Defendant's solicitors to the Plaintiffs solicitors on 6 December 1974 and the Plaintiff tried to telephone the Defendant in England to discuss the sale of the cattle but failed to contact him. The Plaintiff wrote to the Defendant on 16 December 1974 as follows:-

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