Scottish Court of Session Decisions

Subject_1 IRRITANCY.
Subject_2 SECT. V.

Pactum legis commissoria in pignoribus.

Earl of Tullibardine
v.
Murray of Ochtertyre

Date: 1 February 1667
Case No. No 43.

Clauses irritant in wadsets purgeable before, declarator.

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The Earl of Tullibardine having wadset the lands of Logie-Almond, to Murray of Ochtertyre, he did thereafter discharge the reversion, and at that same time, got a back-bond, bearing, That for payment of 56,000 merks, with all other sums that should happen to be due to him by Tullibardine, and all expenses, that he should dispone the lands back to Tullibardine, or the heirs or assignees of his own body; but with this provision, that if he were not paid before Martinmas 1662, the bond should be null without declarator. Tullibardine premonishes, and after premonition, dispones the lands to Sir John Drummond, and they both jointly consign, and now pursue declarator. It was alleged for the defender, Ochtertyre, 1mo, No declarator upon this order, because the back-bond is personal to my Lord, and to the heirs or assignees, being of his body; so that Sir John Drummond, nor any stranger, can have right thereby to redeem. 2do, The back-bond is extinct, and null, by committing of the clause irritant, in so far as payment has not been made before 1662. The pursuer answered to the first, that albeit the reversion had been personal to my Lord, only excluding his heirs and assignees; yet my Lord, in his own lifetime, might redeem, and being redeemed, the right would belong to any to whom my Lord had, or should dispone. 2do, This, clause irritant is pactum legis commissoriæ in pignoribus, which, by the civil law, and our custom, is void, at least may be still purged before declarator obtained, as being rigorous and penal, and so abiding the Lords' modification, as well as penalties in bonds modified of consent of parties, especially in this case, where the performance is not of a single liquid sum, but comprehends a general clause of all debts that were, or should be after due. The defender answered, that clauses irritant in wadsets are not rejected by our law, but are valid; only where declarators are requisite the Lords may reduce them to the just interest of parties before declarator; but here there needs no declarator, because the defender is in possession, and may except upon the clause irritant committed, and the clause bears to be effectual without declarator; and, albeit this clause could now be reduced to the just interest, it is only this, that seeing Tullibardine hath sold the land, the defender should give as great a price as it is sold for to Sir John Drummond, which the defender is willing to do.

The Lords sustained the order, in so far as it is at the instance of Tullibardine, but not as to Sir John Drummond, without prejudice to Sir John Drummond's disposition; they found also, that this clause irritant might be purged now at the bar, or any time before declarator, which is always necessary, though renounced, that medio tempore, parties may purge; and the Lords inclined, that Ochtertyre should have the lands for the price Sir John Drum mond gave, which is 80,000 merks; but, upon examining him and my Lord, it appeared, that my Lord had offered the land to him, re integra, and that he had never been special, as to so great a price as this; but only general, that he would give as great a price as any other would give, which they thought not sufficient, seeing any other thereby would be scarred from bargaining.

1667. February 12.—In the declarator at the instance of Tullibardine against Murray of Ochtertyre, disputed the first of February last, it was now further alleged for Ochtertyre, That clauses irritant in wadsets, not being illegal, or null by our law, albeit the Lords do sometimes restrict the effect thereof, ad bonum et aquum, to the just interest of the parties against whom the same is conceived, they do never proceed any further; but here Ochtertyre is content to make up to the Earl his just interest, by paying a greater price for the land than Sir John Drummond; and whereas it was alleged, that this was not receivable now, after the Earl had made bargain with Sir John Drummond, Ochtertyre now offered to prove, that before any bargain was agreed, in word or writ, he did make offer to the Earl of fourscore ten thousand merks, which he offered to prove by witnesses above all exception, who communed betwixt them, viz. the Lord Stormont and the Laird of Kylar. It was answered, That the pursuers adhered to the Lords' former interlocutor, whereby they have restored the Earl against the clause irritant, he satisfying Ochtertyre his whole interest, cum omni causa, the same point being then alleged and disputed, and both parties being judicially called, and having declared their minds concerning any such offer, whereby the Earl, upon his honour, declared, that before the agreement with Sir John Drummond, Ochtertyre offered not so much by 4000 merks. 2do, Any such allegeance, albeit it were competent, were only probable scripto vel juramento, the Earl now having disponed to Sir John Drummond, so that the effect would be to draw him into double dispositions, which is of great consequence, both as to his honour and interest, especially seeing that Ochtertyre did not take an instrument upon the offer. It was answered for Ochtertyre, that the former interlocutor cannot exclude him, especially seeing he did only allege then that he made a general offer of as much for the land as Sir John Drummond would give therefor, but now he offers to prove, that he offered 90,000 merks, which is 2000 merks more than Sir John's price.

The Lords found that they would only restrict the clause irritant, to the effect that the granter of the wadset might suffer no detriment, which they found to be effectual, if the wadsetter offered as great, or a greater sum than the other buyer, before any bargain agreed between them, either in word or writ; but found it not probable by witnesses, but by writ, or the Earl's oath; and found that a general offer was not sufficient, unless it had expressed a particular sum.

Fol. Dic. v. 1. p. 487. Stair, p. 433. & 441.