Sheriff court case concerning an action for damages for failure to pay the purchase price timeously in terms of missives for the purchase/sale of a house in Saltcoats.
The missives provided for a date of entry of 4th July 2008. However, settlement did not take place and the purchase price was not paid until the 28th November 2010. No formal amendment was made to the missives. However, there was correspondence between the parties in which the sellers indicated that they were reserving the right to recover losses in terms of the original missives. There were also various references to the date of entry and date of settlement in the correspondence between the parties which led to debate in court as to whether the missives had been varied.
As is normal, the missives contained a supersession clause providing that they ceased to have effect after two years from the date of entry. The sellers served an action for claims on 24 of November 2010. I.e. less than 2 years after entry was taken but more than 2 years after the date of entry provided in the missives.
The sellers claimed that the date of entry in the missives had been changed in the correspondence whereas the purchasers argued it had not.
Sheriff Livingstone found that the exchange of correspondence did not change the date of entry which in his view had a technical as well as a practical meaning.
“In other words…the date that a party actually pays over the price i.e. the settlement date or the date that a party actually moves in both of which might lay claim to being the date of entry will not affect the date of entry in the missives in the absence of parties agreeing same. It might be more apt to describe the date of entry as being the agreed date for the seller to deliver a disposition in return for the buyer paying over the purchase price no matter when these things actually happen. There is no doubt in this case that the date of entry was 4th July 2008 and it seems to me that this was a contractually agreed date of entry and could only be changed by agreement and further such an agreement would have to adhere to certain formalities. It is clear to me from the correspondence that although the Defenders solicitors asked the Pursuers to agree to a new date of entry the Pursuer never agreed to that. What the Pursuer did do was agree to settle on 28th November 2008. That does not constitute an agreement to change the date of entry. The Pursuer did sign a disposition which refers to “WITH ENTRY and vacant possession as at 28th November 2008 notwithstanding the date or dates hereof” but it seems to me that again that does not change the date of entry but effectively uses entry in a different sense referring to the date from which the [purchasers] became the heritable proprietor.”
As a result the date of entry was 4 July 2008 meaning the proceedings should have been raised by 3rd July 2010 and sellers were time barred from raising the action.
A full report of the judgement is available from Scottish Courts here
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