The Gazette 1993

GAZETTE

SEPTEMBER 1993

the basis that I will exchange contracts within a period of two weeks of receipt of that contract." The defendant agreed to those terms but after sending the contract to the plaintiff, sold at a higher price to the other offeror before the two-week period for exchange had elapsed. The question according to Gibson, LJ, was whether that was what was often called a lock-out agreement. One had to look at what had been agreed to see whether there was something capable of subsisting as a binding contract independent of the continuing negotiations for the sale of land. Paragraph two of the plaintiff's letter had been clearly agreed by the defendant and there was no reason why that agreement should be considered subject to contract. The judge rejected the submission that there was no consideration moving from the plaintiff: there was value to the defendant both in the removal of the plaintiff's threat to make difficulties with the other offeror and in promising to get on with the sale by limiting himself to two weeks for exchange. Rejecting the submission that the agree- ment was unenforcable on what may be termed "Statute of Frauds" grounds, the judge said it was plain that the defend- ant was not committing himself to a sale to the plaintiff at the preliminary stage. Obviously there was no contract for the sale of land nor any option for the sale of land. What was agreed was a lock- out agreement, the negative element characteristic of which was identified by Lord Ackner in Walford v Miles, [1992] 2 AC 128, 139. The defendant was bound by the agreement for 14 days and the judge was right to hold that the contract was enforceable. Damages for breach of contract were to be assessed if not agreed.

The Interception Act, 1993 will regulate interception of postal packets and telecommunications messages.

State, must be in writing and signed ! by an officer of the Permanent ! Defence Force who holds an army rank not below that of Colonel. The opportunity has also been taken in the Interception Act, 1993 to amend the definition of "intercept" in section 98 of the Postal and Telecommunications Services Act, 1983. Prior to the enactment of the 1993 Act it was a criminal offence for | any person, inter alia, to record a I telephone message without the | agreement of both the person on whose behalf the message was transmitted and of the person intended to receive the message. The new definition of "intercept" is as follows "listen to or record by any means in the course of its transmission a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended i i This means that it will be lawful, at least in terms of the 1983 Act, for one | person, a party to a telephone conversation, to record the conversation without the consent of the other party to the telephone conversation. However, other | considerations and other aspects of the law, including any constitutional right to telephonic privacy, may apply. I ! ! j to receive the message has consented to the listening or recording."

Conveyancing: The Lock-Out Agreement

j A new phrase may soon enter the lexicon of Irish conveyancers; it will be termed "the lock-out agreement." The issue came up for consideration in the Court of Appeal in the case of Pitt v PHH Asset Management Ltd. [The Times Law Report July 30, 1993]. The Court consisted of the Master of the Rolls, Sir Thomas Bingham, Mann, and Gibson LJJ. The Court of Appeal held that an agreement reached between a vendor of property and a j prospective purchaser that the vendor I would not negotiate with other pros- ! pective purchasers for a short ! stipulated period was a lock-out agreement enforceable in law. ! Gibson, LJ, in his judgment, with ! which Mann, LJ, agreed and with the Master of the Rolls delivering a j concurring judgement, stated that when the defendant put the property on the market, two buyers made offers of whom the plaintiff was one. His offer was initially accepted subject to | contract, but rejected on the other j offeror making a higher offer. After further communications, the plaintiff I had written to the estate agent acting for the defendant stating: "Your client has decided it is in his best interest to stay with my offer subject to contract. !

j Wigs Again

Readers may remember that in the June Gazette (Vol 87 No 5 page 170) Lawbrief informed readers that a report of the Committee on Court Dress (established by the Bar Council) j was still under consideration by the i Bar Council of Ireland. Readers may

The vendor will not consider any further offers for the property on

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