The Gazette 1979

GAZETTE

MARCH 1979

SOCIETY OF YOUNG SOLICITORS SECTION

DID YOU KNOW?

Did you know

that a convenant is a promise under Seal?

You should not give a covenant in a document therefore

unless the document is executed under Seal.

Did

you know

that by virtue of Section 6 (i) of the

Conveyancing

Act 1881

a conveyance of land shall be

deemed to include and shall operate to convey with the

land "all the buildings, erections, fixtures, commons,

hedges, ditches, fences, ways, waters, watercourses,

liberties, privileges, easements, rights and advantages

whatsoever appertaining or reputed to appertain to the

lands or any part thereof or at the time of the conveyance

demised, occupied or enjoyed with, or reputed or known

as part or parcel of or appurtenant to the land or any part

thereof'. Furthermore by virtue of Section 2 (v) of the

said Act a conveyance includes inter alia an assignment

and a lease.

Accordingly even if one omits to include in a Deed an

assignment of a right of way which is appurtenant to the

land being conveyed, that right will nonetheless pass to

the Purchaser of the lands.

Did you know

that the

Statute of Frauds

was enacted

"for securing purchasers, preventing forgeries and

fraudulent gifts and conveyances of lands, tenements and

hereditaments, which have been frequently practised in

this Kingdom, especially by Papists, to the great prejudice

of the Protestant interest thereof, and for settling and

establishing a certain method, with proper rules and

directions for registering a memorial of all deeds and

conveyances, which from and after the 25th day of

March in the year of Our Lord One thousand seven

hundred and eight shall be made and executed".

Does the knowledge that the Vendor is a "Papist"

therefore put the Solicitor for the Purchaser under

obligation to raise further requisitions in this respect?

Report on a Lecture given to the Society of Young

Solicitors in Wexford at the 1978 Autumn Seminar

The Erosion of the Statute of Frauds by the Doctrine of

Rart Performance

y Peter Sutherland, B.L.

The Paper presented by Peter Sutherland, B.L. to the

Society examined the extent to which the requirement of

the Statute of Frauds (Ireland) Act, 1695 relative to the

Provision of a written contract for the sale of land or any

interest in land had been modified.

The Statute itself provides, in relation to contracts

referable to lands, that no action shall be brought against

pny person upon any contract or sale of lands . . . or any

mterest in or concerning them . . . "unless the agreement

Pon which such action shall be brought, or some

Memorandum or note thereof, shall be in writing, and

signed by the party to be charged therewith, or some

other person thelreunto by him lawfully authorised".

Apart from the modification made by Section 4 of the

Landlord and Tenant (Ireland) Act, 1860 relating to

certain Tenancy Agreements the principal erosion of the

Statute of Frauds has developed through the Doctrine of

Part Performance.

The Doctrine of Part Performance was an interference

prompted by the concern of the Courts of Equity with the

principles of fairness and justice and was recognised from

the very earliest times following the passing of the Act

into law. Nevertheless, notwithstanding the antiquity of

the Doctrine, the Courts are still far from being in

agreement as to the circumstances under which it is

operative.

Chitty (24th 3dition paragraph 251) refers to the

Doctrine as follows:— "Where the Plaintiff has partly

performed an oral Contract required by the Statute to

be evidenced in writing, in the expectation that the

Defendant would perform the rest of the Contract, the

Court will not allow the Defendant to escape from his

Contract upon the strength of the Statute but may

order specific performance of the oral contract".

The Rationale for the intervention of the Courts of

Equity was to preclude the Courts being used as an

instrument of fraud.

The purpose for the passing of the State of Frauds was

to ensure, in so far as it was possible to do so, that there

would be strong evidence of the transaction alleged to

have taken place. The Courts of Equity wanted to provide

fairness in accordance with equitable principles but as

against this felt it incumbent upon them to support the

intent of the Statute by allowing reliance to be placed only

upon acts of part performance which themselves indicated

the existence of the Contract which it was sought to have

performed. The acts relied upon, if they were to

constitute Part Performance, had to corroborate the

contract and therefore the Doctrine would not frustrate

legislation beyond what was necessary to give effect to the

equitable principals of fairness and justice.

The authorilative source of the law on Pa rt

Performance is the case of

Maddison v. Alderson

[1883]

C.A. 467 where it was held that taking the facts

alleged to constitute Part Performance in isolation they

were not necessarily referable to the alleged contract. This

case is to be compared with

Wakeham v. MacKenzie

[1968] 2 AER 783 where Stamp J. concluded that the

true rule was that the operation of the acts of Part

Performance required only that the acts in question be

such as must be referred to some contract and may be

referred to the alleged one. The situation in England was

that after the hearing of

Wakeham

MacKenzie

there

was considerable doubt in the minds of practitioners as to

whether the acts relied upon would have to be prima facie

referable simply to the existence of a Contract or

alternatively whether they would have to be such as to

point to a Contract relating to land. The matter was

considered in the context of a case largely concerned with

the question as to whether the making of a payment of

money could be considered as an act sufficiently

unequivocal as to constitute Part Performance of an

alleged contract relating to land. Snell (26th edition page

653) says "Payment of a part or even apparently the

whole, of the purchase money is not sufficient part

performance of a contract for the sale of land". The view

when expressed was in accord with numerous statements

to the same effect in various judgments and the

reasoning behind these statements would appear to be

based on the fact that a payment of money is considered