Tesco v Constain - Thomson Reuters

1990 S.L.T. 249 Page 71989 WL 984342 (OH), 1990 S.C.L.R. 186(Cite as: 1990 S.L.T. 249)agreement if through the obligor's actings he has substantially altered hisposition. However, the relevant cases point to substantial prejudice arising andit is for that reason that Bell introduces to his definition the concept of"proceedings not unimportant" . Cases which present no difficulty are, forexample, where the obligee alters his position by physically intromitting withthe subjects in a material sense (as would arise were he allowed to takepossession and physically alter them); or where he is allowed to enter intosubstantial commitments consequential upon the view that a contract of purchasehas been concluded (as for example would arise if he were to sell or vacateanother property).The examples I have given are, of course, in no sense exhaustive but it isobvious to me that the change of position relied upon here is of quite adifferent dimension to the kind of actings acknowledged by the authorities asamounting to rei interventus. The pursuers have instructed the preparation of adraft disposition in modern form and revised or prepared a few standard forms.This will no doubt have involved them in some legal expense although they do notstate what this expense has been. Nevertheless, given that the case involves ashop said to be worth 215,000 and that extensive negotiationsbetween solicitors were in train for over half a year, it is difficult toenvisage that the extra legal costs which might have been incurred amounted to aserious or important change in the pursuers' position. Thus, apart from incurringa relatively small degree of extra expense, the position of the pursuers on 16January 1989 when the defenders intimated that they did not recognise thecontract was relatively intact. In my view no contract for the sale of thepremises having been properly concluded, the actings which the pursuers rely uponcannot be said to provide the link necessary to complete the contract. It followsthat I require to repel the pursuers' pleas in law, sustain the defenders' firstplea in law, and dismiss the action.Representation*254 Counsel for Pursuers, Nimmo Smith, Q.C., Brailsford; Solicitors, TodsMurray, W.S.--Counsel for Defenders, Galbraith, Q.C., Howie; Solicitors, DormanJeffrey (for Macdonalds, Glasgow).R. F. H.© W. Green & Son Limited1990 S.L.T. 249, 1989 WL 984342 (OH), 1990 S.C.L.R. 186END OF DOCUMENTCopr. © West 2004 No Claim to Orig. Govt. Works