A.M.A. (New Town) Ltd v Finlay

18 August 2010

In A.M.A. (New Town) Ltd v Finlay, Edinburgh Shff Ct 19/8/10, unreported, Sheriff W Holligan, the sheriff held that a seller of heritable property was entitled to sue for payment, rather than craving specific implement within a specified period, failing which for damages.  The essential facts were that the missives provided a mechanism for identifying the date of entry, which was established.  The purchaser was unable to pay the price on the date of entry although the seller was in a position to settle.  The seller sued for payment of the balance of the purchase price (a reservation fee and a deposit having been paid at an earlier stage) plus interest. 

The defender (purchaser) argued that it was not competent to seek payment of the balance of the purchase price.  The pursuer ought to have sought specific implement or claimed damages.  The pursuer (seller) argued that, as the defender was in breach of contract, the pursuer as the innocent party, had a choice of remedy.  He could affirm the contract and sue for implement or he could accept the breach and treat the contract as repudiated and claim damages.  He had chosen the former and was seeking payment.

The sheriff held that the pursuer was not bound to seek damages.  As innocent seller, the pursuer was entitled, in principle, to seek implement of the bargain with which it was ready, able and willing to proceed.  The earlier case of Bosco Design Services Ltd v Plastic Sealant Services Ltd 1979 SC 189 endorsed the procedure followed by the seller.  There was no rule of law which compelled the seller to seek an order for specific implement.  The defences were irrelevant and decree for payment of the balance of the purchase price plus interest was granted.

This decision confirms that a seller who considers that the reluctant purchaser has sufficient funds to pay the purchase price can raise a simple action for payment without the complexities and the additional time and effort involved in craves for specific implement failing which for damages.

J Gordon Reid Q.C., F.C.I.Arb. of Axiom was counsel for the pursuer.