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GAZETTE
JULY/AUGUST 1992
2. Service of Completion Notices
The second Report reviews at some
length the law in England and
Ireland on the question of
completion notices. Because, as a
general rule, equity did not regard
time as being of the essence in
contracts for the sale of land it has
become common practice to provide
in contracts for the service of 28 day
completion notices. In respect of
this 28 day period time is of the
essence and failure to complete on
that day amounts to a breach of
contract.
It is long established that in order to
serve a valid and effective
completion notice the party serving
it much have been "able ready and
willing to complete the sale".
The Commission's Report primarily
sets out to resolve the impractical
consequences that may arise as a
result of the Supreme Court decision
in
Viscount Securities Limited
-v-
Kennedy
[Unreported 6 May, 1986
Decision of Walsh, Griffin and
McCarthy JJ]. In that case, based on
the Law Society's General
Conditions of Sale 1978 Edition, the
vendor served a 28 day completion
notice. The purchaser failed to
complete within that period and later
contended that the completion notice
was not a valid notice since at the
time when the notice was served the
vendor was not able ready and
willing to complete the sale. On the
date on which the completion notice
was served and for some weeks
previous to that date there was a
large quantity of spoil on the lands
which had been dumped, unknown
to the vendor's solicitors, by Dublin
County Council in the course of
construction of a dual carriageway.
The spoil had been removed in full
10 days after the completion notice
was served and some 24 hours after
the vendor's solicitors learned of its
existence. The Supreme Court held
that the completion notice was not
valid as at the date of the service of
the completion notice the vendor
was unable to complete as the
existence of the spoil on the land
prevented him from giving vacant
possession of the property on
the date of the service of the
notice.
This strict interpretation of what is
meant by "able ready and willing"
to complete the sale could cause a
lot of practical difficulties for a
vendor who may not have discharged
mortgages or vacated the property
on the date the notice is served. This
problem has already been dealt with
in sub-clause 40(g) of the Law
Society's General Conditions of Sale
(1991 Edition).
Basically the Commission's
recommendation is that a statutory
provision should be enacted to
provide what is now contained in the
Law Society's General Conditions of
Sale. It goes slightly further in
providing that the vendor, having
served the notice, must himself be
bound to complete within 10 days of
being requested so to do by the
purchaser. This is in order to avoid a
situation where a vendor, wishing to
delay a closing, serves a 28 day
notice.
In its review of the law the
Commission appears to recognise a
divergence in the position between
England and Ireland in that in
Ireland a closing date is still
generally regarded as a target date.
This may no longer be the position
in England, as a result of the
decision in
Raineri
-v-
Miles
[1982] 2
All ER 145 where a purchaser
succeeded in claiming damages for
breach of contract when, in a chain
transaction, the vendor failed to
complete on the specified closing
date.
While hinting that it might be better
if the Irish law were more akin to
that laid down in
Raineri
-v-
Miles,
the Commission's Report does not
go so far as to recommend any
legislative change. Although interest
may be collectable by a vendor on a
delayed completion, the remedies
available to a purchaser are minimal
unless the Courts do choose to
follow the decision in
Raineri
-v-
Miles.
Colin
Keane
The Attorney General -v- X and
Others
Edited by Sunniva
McDonagh BL, (Incorporated
Council of Law Reporting for
Ireland, 103pp, £7.95)
X marks the spot - the spot being
the point in our history when a
decision of our highest court has
generated more public controversy
and discussion than any other
decision of that court. This fact
adds to the importance of this
concise publication of the full
judgments of each of the five judges
of the Supreme Court delivered on 5
March, 1992 as well as the earlier
High Court judgment of Costello J
delivered on 17 February, 1992. Of
equal importance to an
understanding of how and why the
Supreme Court arrived at the
decision it did (particularly as the
appeal hearing itself was held 'in
camera') this book also contains a
very full summary of the
submissions made to the Court both
by counsel for the 14-year-old
pregnant girl (and her parents) and
by counsel for the Attorney General.
As has been exhaustively parsed and
analysed by this time, the 'ratio' of
the X decision is (per Finlay CJ):-
" . . . that the proper test to be
applied is that if it is established as a
matter of probability that there is a
real and substantial risk to the life, as
distinct from the health, of the
mother, which can only be avoided by
the termination of her pregnancy,
such termination is permissible,
having regard to the true
interpretation of Article 40.3.3. of the
Constitution."
It is clear from counsels'
submissions that the main focus in
argument was on the issue of the
balancing of the constitutional right
to life of the 'unborn' with the equal
constitutional right to life of the
mother and the circumstances in
which the balance should come
down in favour of the mother; and
not on the more peripheral issues of
the right to travel abroad and the
right to information.
This book is worth having as a
'bedrock' reference source,
particularly as the ongoing
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