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Society of Young Solicitors
"-Autumn Seminar
WATERFORD. NOVEMBER, 1974
About 200 members attended the 19tli Seminar of
the Young Solicitors Society which was held in the
Ard Ri Hotel, Waterford," on Saturday, 16th and
hunday, 17th November, 1974. The first" lecture was
delivered by the Chairman' of the Bar Council, Mr.
Ronan
Kcane,
S.C., on
"Modern Developments
in
Conveyancing
Contracts".! The Chairman of the
society, Miss Maevc O'Donoghue, presided. The
lecturer first said that, although the classic con-
veyancing text books could not be ignored, their lay-
out was not helpful. Farrahd is written by an imagi-
native and speculative writer to give the practical
as
Pect of the subject. If a contract for the sale of
a
nd is to be valid, all the ingredients of an ordinary
contract must be present — i.e. offer and acceptance,
consideration and agreement to approve the terms.
When Estate Agents receive an offer which they
communicate to their Principals, who instruct them
t o
communicate acceptance of the offer to a third
P
art
y, the language actually used by Estate Agents
°n these occasions will often determine whether a
contract has in fact been concluded between the
Parties. If the offer is only accepted "subject to
contract", the liability of the parties only arises when
the contract is signed.
.
there is a clause which provides that the contract
I s
conditional on the purchasers obtaining planning
Permission for a development, although Kenny J. held
197
H t a , y
V
'
H c a , y
(unreported., 3 December
' 3) that such conditions are normally exclusively
the fcsnefit of the purchaser, nevertheless there
could be circumstances in which the conditions as
0 the grant of a planning permission and the other
conditions of the contract were so mutually depen-
e
n t on each other that they could not be segregated,
a s
shown in Heron Garage Properties v. Moss (1974)
1
All E.R.421.
The contract may be conditional upon vendor or
Purchaser obtaining a statutory consent. For instance,
of s
p u r c h a s e r i s
" ot an Irish citizen, the consent
w ii
^
311
^ Commission would be required, and this
"I also applv to sub-division. As shown by
^cGiUicuddy v. Joy—
(1959)I.R. 189,
if such a
onsent is required, the party in a position to do so
ust take all necessary steps to obtain such consents.
1695
r e g a r d s
Section 2 of the Irish Statute of Frauds,
rel H °
n e m u s t c o n s i d e r
W whether the documents
l e d
upon do in fact constitute a sufficient note or
^ o r a n d u m for the purposes of the action, and (2)
pel.
e r t b e
documents in fact are signed by the
n ^ n to be charged or his agent. If the agreement
the °
n d Í t Í O n a l u p o n t h e s
' £
n a t u r e
a
formal contract.
c
C o r r e
s pondence will only constitute a sufficient
as t
1
'
n r e l a t i o n t o t h e
Statute if the parties agree
nam°
t h e < n i a t e r i al l e r m
s of the contract, such as the
the
CS
°
f t h e p a r t i e s
»
t h e
description of the lands, and
n a
t u r e of the consideration; sometimes the terms
as to the payment of a deposit may be material.
As regards an auctioneer, if he has been expresslv
authorised by his Principal to accept an offer for the
land, he is thereby automatically authorised to enter
into an open contract for the sale of the land. Godley v.
Power 95 ILTR 135, establishes that if a solicitor
with the express authority of his client acknowledges
in correspondence the existence of an agreement for
the sale of land by his client, this will constitute a
sufficient Memorandum
within the Statute. A
solicitor who signs a contract for the sale of land
"in trust" for an undisclosed client is normally per-
sonally liable, at least to the stage of the payment
of the deposit at an auction. It seems that the liability
shifts to the purchaser's client after that.
In order to rescind a Contract, a vendor may do
so (1) by express power in the contract, or (2) because
the purchaser has repudiated the contract. The
express power, which must be exercised reasonably
and in good faith and within a reasonable time,
entitles the vendor to rescind, where the purchaser
insists on any requisition or objection which the
vendor is unwilling on the grounds of difficulty, delav
or expense to comply with. If it is alleged that the
purchaser has repudiated the contract, mere inaction
will not suffice, and the mere fact that the com-
pletion date has passed even after a substantial
period, will not of itself be treated as a repudiation,
as normally the date for completion is not of the
essence of the contract. Normally in most cases a
reasonable time would be four weeks. The purchaser
may at any time waive the requirement that time is
of the essence of the contract, in which case it will
not be enforced.
There are special difficulties for a vendor to try
to enforce an action of specific performance of the
contract, because: (1) The remedy is at the discretion
of the Judge; (2) This action may only be commenced
by a plenary summons; (3) The purchaser is entitled
to have the Vendor's Title referred to a Chancery
Examiner, a procedure which may be lengthy; and
(4) The purchaser cannot complete the transactions
more often for lack of money than unwillingness to
accept the title. The Vendor is clearly entitled to
damages if the purchaser refused to complete, and
the measure of the damages is the injury sustained
by the vendors. As regards deposits, the principle
appears to be that a deposit paid by the purchaser
can be retained by the vendor, where the purchaser
abandons the contract. If the vendor lawfully
rescinds, the deposit can be retained, whether the
vendor has suffered actual loss or not.
If the vendor fails to perform something which
goes to the root of the contract, such as failing to
prove a good title, the purchaser is entitled to
rescind; the same rule applies where the property
which the vendor conveys is not substantially the
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