Scottish Court of Session Decisions

Subject_1 IRRITANCY.
Subject_2 SECT. V.

Pactum legis commissoriæ in pignoribus.

Marquis of Athole and Earl of Tullibardine
v.
John Campbell of Glenlyon

Date: 20 July 1697
Case No. No 45.

A creditor who had an expired legal entered into an agreement with his debtor, restricting his adjudication to a lower sum, and granting a reversion for six years, with this express clause, that if the restricted sum were not then paid, the reversion should ipso facto expire. The irritancy was found not purgeable after the reversion was expired.

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I reported the Marquis of Athole, and the Earl of Tullibardine, his eldest son, against John Campbell, now of Glenlyon; being a declarator of the extinction and expiration of a reversion, in regard the irritancy was committed, in so far as the Marquis had granted a reversion for six years, on payment of L. 39,000, to which he had restricted his debts; and in case it were not redeemed within that time, then the lands were to belong irredeemably to the Marquis, on his paying L. 26,600 farther, as the liquidate additional price agreed on betwixt them for the value of the reversion; and that they had failed to pay the money at the term mentioned in the contract; and so the reversion was expired. The defence was, this being a wadset on the matter, to declare the irritancy were to sustain pactum legis commissoriæ in pignoribus, which is reprobated by the common law and our decisions; and the practice of all sovereign judicatories in Europe allows debtors to pay and purge at the bar; that being founded on a just equality and proportion, and all such penalties approach to usury; and when you get your money cum omni causa, nihil tibi deest, as the Emperor Constantine very justly determines even with a retrospect, L. 3. C. De pact. pignor. Answered, Penal irritancies are indeed odious and purgeable; but we are plainly in the case of a conditional sale, where the condition not existing, the emption vendition becomes simple and absolute, as is decided in l. 16. § final. D. De pignor. and l. 81. D. De contrah. emp. and was found by the Lords, 17th January 1679, Beatson contra Harrower, No 44. p. 7208. Replied, All that holds where there is a competent price paid, and the transaction is inter majores; but here what the Marquis is to pay for the lands of Glenlyon is far from amounting to an adequate price; in which case; Stair, in his institutions, shews the same is ever open and purgeable, and cites many decisions from Durie and others for it; likeas, this reversion is granted to a minor, and though he has renounced the exception of minority, that he shall not obtrude it against the expiration of the reversion; yet his case is always favourable, and he can renounce it no more than he may consent that the legal of an apprising or adjudication should run against him when he is minor. Duplied, When one is proprietor by expired comprisings, and ex gratia prorogates the legal to a minor, he must take this favour as it is given him, or he must want it. See Craig, Feudor. B. 2. D. 6. § 29., and the case of Hamilton of Sanquhar and Chalmers there mentioned.* The Lords found this transaction was not of the nature of a pactum legis commissoriæ, and that his minority gave him no interest to purge; and therefore declared the irritancy incurred.

1698. July 2.—Campbell of Glenlyon having given in a new petition against the Earl of Tullibardine, concerning the cause mentioned 20th July 1697, and the same being refused, he this day protested for remeid of law to the Parliament.

Fol. Dic. v. 1. p. 487. Fountainhall, v. 1. p. 787. & v. 2. p. 9.

* See Appendix.