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GAZETTE
JUNE/JULY 1976
VENDOR AND PURCHASER
Due to their not understanding Eng-
lish, £18,000 deposited by Germans
for purchase of farm must be re-
turned to them.
Two Germans who had put down a
deposit of £18,125 towards the pur-
chase of a 117-acre farm on the
shores of Lough Derg near Nenagh,
Co. Tipperary, are to have the
money returned to them under a
judgment by the President of the
High Court, Mr. Justice Finlay.
The plaintiffs, Rudi Siebel and
Willi Seum, both described as chem-
ical cleaners, of Ludwig Strasse,
Dudenhofen, West Germany, had
sued Donald Kent, farmer, of The
Old Court, Terryglass, Nenagh.
They claimed that on March 21st,
1974, they discussed with Mr. Denis
Gilmartin, auctioneer, the purchase
of the property for £72,500. They
were invited by Mr. Gilmartin to
sign a document proporting to be
a memorandum of a sale by private
treaty and they did so.
Neither of them, they pleaded,
had any knowledge of the English
language and they were not made
aware by Mr. Gilmartin of the
meaning and effect of signing the
document. In particular they did
not appreciate that the document
was intended finally to bind them
to the purchase. They paid the de-
posit of £18,125 in two phases, the
first of £2,000 and later the bal-
ance.
The Germans further pleaded
that they believed that the discus-
sion amounted to no more than a
preliminary arrangement as to price
and that no contract would be com-
pleted until consent to sub-division
was obtained from the Land Com-
mission.
They sought the return of the
money with interest.
Mr. Kent denied that the plain-
tiffs had not any knowledge of the
English language or that they had
not been made aware by Mr. Gil-
martin of the meaning and effect
of the signing of the document. He
claimed that they appreciated the
document was intended finally to
bind them and he counterclaimed
for a declaration that the contract
was a valid and binding one and
that they should forfeit the deposit
money.
In a reserved judgment, the
President said that when the plain-
tiffs first arrived in Ireland in
March, 1974, neither of them had
any worthwhile knowledge of Eng-
lish. Before coming to Ireland they
had ascertained from the Irish Em-
bassy in Germany that if they wish-
ed to purchase a greater area than
five acres the consent of the Land
Commission would be necessary.
They were introduced by Mr.
Taylor, auctioneer, Portumna, to
Mr. Kent, and later ascertained that
Mr. Gilmartin, auctioneer, Nenagh,
was in charge of the sale. Mr. Gil-
martin's brother, Michael, had a
knowledge of German. Subsequent-
ly a lengthy discussion took place.
The President said that Mr. Denis
Gilmartin was particularly concern-
ed to ensure that all the parties
fully understood the meaning and
effect of Section 45 of the Land
Act, 1965, which dealt with the
purchase by a non-national of land
in Ireland and a requirement for
consent. In particular he was
anxious that the purchasers should
realise that if the consent of the
Land Commission was refused the
transaction must be cancelled.
He was satisfied that Mr. Denis
Gilmartin conveyed that informa-
tion clearly and
unequivocally
through his brother, Michael, to the
plaintiffs, and that they fully under-
stood it.
The President said he was im-
pressed by the evidence of the Gil-
martin brothers and was satisfied
not only that they were witnesses
of complete truth and accuracy but
that they had acted in the entire
transactions with a commendably
high standard of integrity and re-
spect for the rights of the plaintiffs
as well as those of Mr. Kent.
He was also satisfied that it had
been made known to the plaintiffs
that it would be necessary for them
to provide 25% of the purchase
price.
The President said that although
the plaintiffs had originally repre-
sented their interest in the purchase
as being confined to the possibility
of farming, either that was a pre-
tence or they had in the meantime
changed their mind and were not
concerned with the possibility of de-
veloping the lands as a holiday re-
sort, including the provision of holi-
day homes or chalets.
On May 19th, 1974, Mr. Sibel
wrote to Mr. Kent's solicitor stating
that after careful consideration of
the political climate in Ireland and
particularly in the light of recent
developments they had agreed that
they could no longer consider the
purchase of the property or any
other property in Ireland and asked
to have the arrangement cancelled
and to have their deposit returned.
The President said that the refer-
ence in their letter to "recent de-
velopments" was apparently a refer-
ence to a bombing in Dublin.
The solicitor replied on June 27th
stating that he had been unofficially
informed that the consent of the
Land Commission would be forth-
coming, indicating a discussion with
Bord Failte with regard to the de-
velopment at Old Court and stating
that he believed there would be no
problems. On July 3rd the Land
Commission gave its consent.
The President said he was satis-
fied that Mr. Sibel, on a later visit
to Ireland, had given to Mr. Kent
a number of different reasons for
his unwillingness now to complete
the purchase but not one of them
related to the political situation in
Ireland. In particular he seemed to
convey that Mr. Seum was unwill-
ing to continue and that he himself
would find it difficult from the fin-
ancial point of view to continue on
his own.
Some Hesitation
He said that notwithstanding a
suspicion arising from the plaintiff's
attempt to prevent the continued
consideration by the Land Com-
mission of their application for con-
sent, he had finally and with some
hesitation come to the conclusion
that they did not understand that
the monies which they had paid
were by way of deposit on a bind-
ing agreement to purchase, and
they were entitled to the return of
their money with interest.
Sibel
and
Seum
v.
Kent
— Finlay
P. — unreported — 1 June 1976.
FAMILY LAW
Non-consummation of marriage -
Ecclesiastical declaration of nullity
affirmed.
A woman, who had already obtain-
ed a declaration of nullity in an
eccleesiastical court, was granted a
decree of nullity by the Supreme
Court in Dublin, 30th June, 1976.
when, in a reserved judgment, it
upheld the 29-year-old woman's
appeal against the refusal of the
High Court to annul her marriage.
The judgment was announced in
camera and the appeal and original
hearing of the petition also were
held in camera.
The names and
addresses of the husband and wife
were not disclosed.
In the High Court, Mr. Justice
Murnaghan had dismissed her petit-
ion, which alleged fraud on the part
of her husband, in that he did not,
at the time of the marriage, intend
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