The Gazette 1992

GAZETTE

JULY/AUGUST 1992

the date of the service of the notice.

2. Service of Completion Notices

The Attorney General -v- X and Others Edited by Sunniva McDonagh BL, (Incorporated Council of Law Reporting for Ireland, 103pp, £7.95) X marks the spot - the spot being the point in our history when a decision of our highest court has generated more public controversy and discussion than any other decision of that court. This fact adds to the importance of this concise publication of the full judgments of each of the five judges of the Supreme Court delivered on 5 March, 1992 as well as the earlier High Court judgment of Costello J delivered on 17 February, 1992. Of equal importance to an understanding of how and why the Supreme Court arrived at the decision it did (particularly as the appeal hearing itself was held 'in camera') this book also contains a very full summary of the submissions made to the Court both by counsel for the 14-year-old pregnant girl (and her parents) and by counsel for the Attorney General. As has been exhaustively parsed and analysed by this time, the 'ratio' of the X decision is (per Finlay CJ):- " . . . that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3. of the Constitution." It is clear from counsels' submissions that the main focus in argument was on the issue of the balancing of the constitutional right to life of the 'unborn' with the equal constitutional right to life of the mother and the circumstances in which the balance should come down in favour of the mother; and not on the more peripheral issues of the right to travel abroad and the right to information.

The second Report reviews at some length the law in England and Ireland on the question of completion notices. Because, as a general rule, equity did not regard time as being of the essence in contracts for the sale of land it has become common practice to provide in contracts for the service of 28 day completion notices. In respect of this 28 day period time is of the essence and failure to complete on that day amounts to a breach of contract. It is long established that in order to serve a valid and effective completion notice the party serving it much have been "able ready and willing to complete the sale". The Commission's Report primarily sets out to resolve the impractical consequences that may arise as a result of the Supreme Court decision in Viscount Securities Limited -v- Kennedy [Unreported 6 May, 1986 Decision of Walsh, Griffin and McCarthy JJ]. In that case, based on the Law Society's General Conditions of Sale 1978 Edition, the vendor served a 28 day completion notice. The purchaser failed to complete within that period and later contended that the completion notice was not a valid notice since at the time when the notice was served the vendor was not able ready and willing to complete the sale. On the date on which the completion notice was served and for some weeks previous to that date there was a large quantity of spoil on the lands which had been dumped, unknown to the vendor's solicitors, by Dublin County Council in the course of construction of a dual carriageway. The spoil had been removed in full 10 days after the completion notice was served and some 24 hours after the vendor's solicitors learned of its existence. The Supreme Court held that the completion notice was not valid as at the date of the service of the completion notice the vendor was unable to complete as the existence of the spoil on the land prevented him from giving vacant possession of the property on

This strict interpretation of what is meant by "able ready and willing" to complete the sale could cause a lot of practical difficulties for a vendor who may not have discharged mortgages or vacated the property on the date the notice is served. This problem has already been dealt with in sub-clause 40(g) of the Law Society's General Conditions of Sale (1991 Edition). Basically the Commission's recommendation is that a statutory provision should be enacted to provide what is now contained in the Law Society's General Conditions of Sale. It goes slightly further in providing that the vendor, having served the notice, must himself be bound to complete within 10 days of being requested so to do by the purchaser. This is in order to avoid a situation where a vendor, wishing to delay a closing, serves a 28 day notice. In its review of the law the Commission appears to recognise a divergence in the position between generally regarded as a target date. This may no longer be the position in England, as a result of the decision in Raineri -v- Miles [1982] 2 All ER 145 where a purchaser succeeded in claiming damages for breach of contract when, in a chain transaction, the vendor failed to complete on the specified closing date. While hinting that it might be better if the Irish law were more akin to that laid down in Raineri -v- Miles, the Commission's Report does not go so far as to recommend any legislative change. Although interest may be collectable by a vendor on a delayed completion, the remedies available to a purchaser are minimal unless the Courts do choose to follow the decision in Raineri -v- Miles. England and Ireland in that in Ireland a closing date is still

This book is worth having as a 'bedrock' reference source, particularly as the ongoing

Colin

Keane

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