Mitchell-v-Caversham Management Limited. Need for certainty in Commercial Transactions

3 March 2009

In this proof the pursuers sought declarator that they had validly resiled from commercial missives. The parties had agreed the terms of a sale in binding missives, but had then subsequently agreed verbally to vary that agreement to enable the pursuers to resile if the deal was not concluded by a longstop date. The defenders insisted on the sale concluding.

Lord Bracadale considered the test for varying an agreement relating to land without writing (Requirements of Writing (Scotland) Act 1995). He held that it had not been met so as to give effect to the parties' verbal agreement. This could have left the pursuers bound to the transaction despite the verbal agreement. However, the Judge also found that the pursuers had, in any event, resiled from the transaction, by doing so verbally before the defenders had purported to extend another contractual time limit. The case highlights the need for parties to such transactions to record variations and agreements made during the passage of the transaction in writing.

Gavin Walker, Advocate of Axiom Advocates represented the pursuers.

http://www.scotcourts.gov.uk/opinions/2009CSOH26.html