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GAZETTE
MAY 197«
the proper law of the contract was Irish, he expressly
approved the decision in
Barclays Bank Int. Ltd. v. Levin
Bros.
The plaintiff was to be awarded that amount in
damages which would most fairly compensate him for the
wrong which he had suffered. The English cases had
demonstrated the feasibility of allowing awards to be
made in foreign currencies and it was clear that given the
volatility of foreign currencies an award made in sterling
at the conversion rate ruling at the date of the failure to
pay the debt was unjust. The decision brings us into line
not only with Britain but also with Austria, Denmark,
Germany, Italy, Norway, Poland, Switzerland and Israel.
One slight difference between British and Irish law is
that the date of payment, and therefore the conversion
date, is when the court gives leave to enforce the
judgment. Such leave is not provided for under the Irish
rules of procedure. Under these a judgment once given is
immediately payable without further order. In the opinion
of McMahon J. the plaintiff was entitled to an order that
the defendant do pay him ths sum due in Dutch guilders
or the Irish currency equivalent thereof at the date when
the judgment in default is entered.
[Continued from page 82]
It is further considered that the form of words used to
preserve Common Law rights should be extended to
provide, not merely that nothing in the Contract docu-
mentation should deprive the purchaser of such rights,
but that nothing in the Contract "nor in the C.I.F.
Guarantee Scheme" should deprive the Purchaser of his
rights at Common Law.
Since the introduction of the C.I.F. Guarantee Scheme,
it has received what may be described as a well-
orchestrated chorus of applause from the media. Recent
press comment has gone so far as to suggest that the
Scheme amounts to a panacea against all past ills and
that, in particular, the Scheme:
(i)
covers liability in the event of bankruptcy;
(ii) is receiving the backing of the main building
societies — the inference being that the societies
would, in due course, lend only to persons buying
within the terms of the Scheme.
It cannot be denied that the Scheme is indeed a very
welcome step forward. Any suggestion, however, that it
gives total or even adequate protection to a purchaser
must give rise to concern.
The Association has checked with one of the leading
building societies to see whether the societies had been
accurately quoted as backing the Scheme. The
Association was informed that the building societies do
not back the Scheme in the manner suggested by the
publicity. They rightly approve of the Scheme as a step
forward, but there is no question of their accepting it in
lieu of a purchaser's other rights, or lending only to
purchasers from registered builders.
It has come to the Association's knowledge that at
least one large building company is charging purchasers of
its newly-built houses an additional sum in excess of £60
to recoup to it a "levy" which it states it has "already
paid to the National House Building Guarantee Company
Limited in respect of registration and inspection fees".
This levy is stated to enable the purchaser to receive a
"six year structural guarantee" on the premises, instead
of "the standard eighteen months warranty period".
Apart from the fact that the C.I.F. Scheme itself contains
no warning that the public is to be asked to bear the cost
of its own insurance, the manner in which the charge is
apparently being communicated to purchasers is vague
and potentially misleading.
Summary
While the C.I.F. Guarantee Scheme is very welcome,
the most important shortcomings of the Scheme would
appear to be:
1. that it only covers, and only to a limited extent,
"major structural defects", as defined in the Scheme
itself;
2. that the protection of the Scheme appears only to
become available after the purchaser has failed to get
satisfaction from the builder;
3. that the Scheme fails to protect the purchaser against
the insolvency of the builder during the construction
of the dwellinghouse;
4. that the Scheme's application to subsequent
purchasers from the original purchaser of the house is
unduly restricted.
The Dublin Solicitors' Bar Association hopes that the
C.I.F. will find it possible in the near future to extend the
scope of its Guarantee Scheme to remedy the defects and
omissions mentioned above and to remove the various
doubts and irrationalities of practice that may result.
(
I n the meantime, the Association warns its members
and the public that the Scheme in its present form is by no
means the solution to all potential difficulties in the
purchase of new houses and that clients and the public
should be warned explicitly of the Scheme's
shortcomings.
Valuation for compensation
is our business
Osborne King & Megran I
Dublin 760251
Cork 21371
Galway 65261
84