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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gawthorpe v Stewart [2000] ScotCS 294 (27 November 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/294.html Cite as: [2000] ScotCS 294

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In this action the pursuer who is the daughter of the defender seeks declarator that in about November 1994 a verbal contract was entered into between the parties whereby the defender agreed to give the pursuer the heritable property known as Kenshiel in Wester Ross and, failing the granting of a disposition of the said heritable property, to make a testamentary bequest of it to her. The pursuer avers that she agreed to take up residence in the said heritable property in or about July 1995 and that it was an express term of the contract that failing a granting of a disposition and until the operation of the will of the defender containing such a testamentary bequest, the pursuer would be accorded beneficial ownership of the said heritable property, in particular the exclusive use of it during the life of the defender. She seeks declarator that the said contract is valid and binding upon the defender. She also seeks an order ordaining the defender to implement his obligation by executing a valid testamentary bequest of the property in her favour and by allowing her the beneficial use of it during his lifetime. The case came before me at procedure roll on the defender's plea challenging the relevancy and specification of the pursuer's averments.

The pursuer avers that while they were on holiday together in Jersey in June 1994 the defender requested that she and her family move to Kenshiel and that he constantly referred to the property as the pursuer's home and pointed out the advantages of her living there. Soon after returning from Jersey he showed her a copy of his will in which Kenshiel was left to her. The pursuer then sets out her view of the agreement made with the defender that being that the property was to be her own property, although not formally conveyed to her, and was to be available for her or for her and her family to use as their home and, that failing a conveyance of the property to her at some time by the defender, would formally become her own property by succession upon his death by the operation of his will. When the pleadings are examined for an indication of the corresponding obligation imposed upon the pursuer in terms of the purported contract it appears that the only such obligation is expressed in the following terms: "In return the pursuer would move to Kenshiel." There is an averment that in about November 1994 the pursuer informed the defender verbally that she and her family would move to Kenshiel at the end of the 1994-95 school year and that the pursuer then considered she had concluded an agreement with the defender. The pursuer later avers that she "has performed the obligation incumbent upon her in terms of the agreement between the parties. She took up residence in Kenshiel in 1995." She also avers that she moved out of Kenshiel in September 1997. The defender is said to have manifested his intention not to comply with the obligation incumbent upon him and to have refused to do so.

Senior counsel for the defender's primary submission was that the terms of the bilateral agreement which the pursuer sought to establish were so vague as to be unenforceable. In response, it was argued that the obligation on her to "take up residence" was sufficiently specific in that residence is a concept known to the law and the court could therefore come to a view as to whether or not the admitted occupancy of the property by the pursuer between 1995 and 1997 amounted to a fulfilment by her of her contractual obligation.

The specific obligations said to be incumbent on the defender are to give the pursuer the heritable property by disposition which failing by executing a testamentary bequest and also to give her exclusive use of it during his lifetime. The obligation on the defender is accordingly one which rests on him for the remainder of his life in that he has no right to revoke any testamentary bequest. The obligation on the pursuer, on the other hand, is to take up residence in the property with no indication whatsoever of the length of any such period of residence. The pursuer is called upon to specifically admit or deny that she has no intention or ability to implement her part of the supposed agreement in that she has never intended to exercise possession of the property for the defender's lifetime. That call remains unanswered and the said averment as to her lack of intention not being covered by any general denial, it follows that the pleadings are to be read as amounting to an implied admission on the pursuer's part of the proposition that she has no intention to reside in the property for the defender's lifetime. In any event, counsel for the pursuer explained that it was no part of her case that the contract imposed any such lifelong obligation upon her.

The question which thus arises for decision is whether the pursuer is entitled to a declarator of a bilateral agreement with mutual obligations where the only obligation upon her is to "take up residence" in the property in question. It is clear that in order to create a contractual obligation an agreement must be reasonably definite. What each party has agreed to do or give must be determinable (Gloag on Contract at page 11). An undertaking which is in effect a vague and indefinite promise cannot be enforced. A contract, in order to found an action, must be complete and if it is not a complete contract it is no contract at all (McArthur v Lawson (1877) 4R 1134; Traill v Dewar (1881) 8R 583) Since it is clear that the obligation imposed upon the defender in this case is one which subsists for his lifetime, a corresponding lifetime obligation upon the pursuer to reside in the property might have been expected and if the suggestion had been that that should be implied that would, in my view, have been sufficient. Counsel has, of course, expressly stated that that is not the pursuer's position. What the pursuer appears to be suggesting is that the obligation upon her in terms of this bilateral agreement is no more than a vague general understanding to take up residence for a period of time which is not only wholly unspecified but which appears, on her averments, to be terminable by her at will. In these circumstances I consider that the impossibility of setting any definite or certain end to the pursuer's obligation in terms of the suggested contract is such as to render it so vague as to be unenforceable.

Senior counsel for the defender also criticised the pursuer's pleadings with regard to the paucity of averments in relation to any offer and acceptance of contractual obligations: such averments of offer as exist were said to be vague and unspecific and there was no clear indication of any acceptance by the pursuer such as to suggest her commitment to a legally binding agreement.

The averments relative to the offer by the defender are those to which reference has already been made. The defender is said to have requested that the pursuer and her family move to Wester Ross and reside in Kenshiel and assist with his business activities. It is averred that the defender "constantly referred to the property as the pursuer's home." That averment is repeated in article three of the condescendence and the defender is said to have pointed out the advantages of the pursuer moving there with her family. There then follows an averment to the effect that before putting his house on the market, the husband of the pursuer enquired of the defender if he would transfer the title to Kenshiel to the pursuer. The defender's response to that enquiry is stated in the following terms: "There's a wee bit of a mortgage to be paid off first." It is then averred that the pursuer made a similar enquiry at or about the same time (November 1994) and that the defender told her "that she was not to be impatient; that he had big plans; and that by pushing him she would spoil the plans." So far as the averments of acceptance are concerned, the totality of these appears to be that the pursuer informed the defender verbally that she and her family would move to Kenshiel, that they would do so at the end of that school year and that some days after this conversation she put her house on the market.

It was submitted on behalf of the pursuer that the will to be bound which is a necessary element of a contract could be inferred from examining the averments as to the whole conduct of the parties. In particular, it was legitimate to infer from the averments as to the defender's conduct that he was offering the pursuer his heritable property to which she will, one way or another, eventually enjoy title and which, in the meantime, was to be available for her use. Further, acceptance of the offer was to be inferred from the pursuer's conduct because if she had not regarded it as her property she would not have taken the serious step of moving her home and changing her child's school and then carrying out repairs and improvements to it.

Having considered the pleadings in this case it seems to me that the averments on behalf of the pursuer are suggestive of a situation in which family members engage in discussion as to possible future accommodation and other arrangements but not of an intention to enter into a contract imposing mutual obligations including a lifetime obligation on the defender in relation to his home. I can find nothing in the averments sufficient to yield an inference of an offer to enter into a legally binding and enforceable arrangement and an acceptance by the pursuer of that arrangement. On the contrary, it seems to me that the narration of the defender's response to specific enquiry made of him by the pursuer and her husband to which reference has been made is indicative of a refusal to transfer title rather than of an offer to do so.

Criticism was also made of the averments of rei interventus necessary to constitute such an informal contract relative to heritable property on the ground that the actings founded upon at page 22 of the Closed Record being equally referable to an offer of use, could not be said to be unequivocally referable to an obligation to transfer title. Counsel for the pursuer conceded, however, that a proof before answer would have been appropriate to determine that aspect of the case.

Having reached the view that the pleadings contain no suitably clear averments of offer and acceptance and that, in any event, the purported contract was void from uncertainty, I have dismissed the action as irrelevant.