The Gazette 1977

GAZ

LTN

JANUARY/F

BRUARY 1977

who had fled the nest will be in good faith if he remains

ignorant of the requirement of her consent until after

completion. Though

Ignorantia iuris haud excusat,

statute is at liberty to provide otherwise. However, this

said, it will be rare to find such happy ignorance on the

part of a purchaser prevailing throughout every stage of a

conveyancing transaction; he will almost inevitably have

employed a solicitor (in the case of a private treaty sale

often before the contract stage or at worst

purported

contract, and in the case of many auctions only

afterwards) and that solicitor's better informed mental

state together with its consequences will be imputed to his

client as is normal in such curcumstances between an

agent and a principal.

(Rolland v. Hart,

Law Rep. 6 Ch.

678, 682; and

Bradley

Riches

[18781 9 Ch. D. 189,

196. See also Section 3(7) of the 1976 Act, of which more

below, which ends in the same direction). The central-

question therefore arises: can a prospective purchaser

who is well-informed, whether by imputation or

otherwise, on the provisions of the 1976 Act and its

consequences

assume

in the absence of suspicious

circumstances (whether founded in rumour, or on

inspections of the premises or otherwise) that a

prospective vendor is unmarried and remain in good

faith? Or must such a prospective purchaser

automatically, whatever the circumstances, make

enquiries about the prospective vendor's marital status in

order to remain in good faith, and if so, how extensive

should such enquiries be? It is an essential element of

good faith that the person required to possess it may

assume that all is in order and in accordance with

appearances unless he is put on inquiry; in other words,

there is no underlying duty to investigate unless

suspicious circumstances come to that person's attention.

Were the position otherwise under this concept, no one

could at common law have taken a negotiable instrument

without first having investigated title (see

Jones

Gordon,

supra, and

Manchester Trust v. Furness

[1895] 2 Q.B.

539, 545). Applying these principles to the legally well-

informed purchaser of a dwelling house, must he assume

that a vendor who remains an apparent bachelor is so

unusual as to be sufficiently suspect to warrant further

inquiry? One would think, or certainly hope, not. One

would think also that apparent wives might consistently

with good faith (and in the absence of suspicious

circumstances) be accepted at their facc value as being

what they purport to be, without either requiring the

production of the marriage lines or investigating the

vendor's occupation of the house in a search for other,

earlier women and so on. Nonetheless, the translation of

an established concept to a new context obviously

engenders uncertainties, and the extent of the underlying

assumptions of a purchaser in good faith cannot yet

confidently be predicted. Accordingly therefore, it is

suggested that the prudent course for the legally well-

informed purchaser (meaning usually one who has

retained the services of a solicitor) to follow would lie in

asking a vendor whether he or she has a spouse as part of

an appropriate preliminary enquiry (if a solicitor is

employed at the precontractual stage) and, in any event,

as part of an appropriate requisition before completion.

The answers to these questions may, it is submitted, be

accepted as conclusive (see

Sclcngor Rubber Estates Ltd.

v. Cradock

(No. 3) [1968] 2 All E. R. 1073 at 1104),

unless the answer is sufficiently ambiguous or evasive as

of itself to found a duty to enquire, or unless, as ever,

other suspicious circumstances come to the attention of

the purchaser or his agents.

Such then is the concept of good faith required of a

purchaser. It remains to be seen what more, if anything, is

required by the 1976 Act of a purchaser as a prerequisite

to gaining a clear tide. These further elements are being

treated here separately from good faith pardy because the

Act is less than clear on them, and partly because good

faith is a tolerably certain concept, suited to treatment in

isolation.

It will be recollected that the Bill up to the Committee

Stage (unlike the Act)

expressly

imposed on a purchaser

the obligation to make

reasonable

enquiries and

inspections in addition to the requirement that there be

good faith on his part; that the Bill, though imposing these

additional objective standards on a purchaser, failed to

spell out what their satisfaction involved; that the

Minister, in seeking to explain, got distinct concepts into

confusion and, in any event, begged the question by

referring to as appropriate whatever practice might be

usual, when, of course, there was none; and that the

Minister dropped the express statement of an objective

standard of conduct at the Committee stage and

substituted the present section 3(7) of the Act. He,

himself, was clear about what he thought he was

accomplishing by this. He said: "the substance of the

requirements regarding notice is the same in the

amendment as in the original section although expressed

in different terms. What I am doing here is incorporating

Section 3 of the Conveyancing Act 1882. The

conveyancing obligation in that section will apply to all

purchasers under this proposed section."

(Parliamentary

Debates Dáil Éireann, Official Report,

vol. 29, No. 11

paragraph 1602

et seq ).

Be that as it may, all that Section

3(7) of the 1976 Act in fact did on the face of it was to

modify, for the purpose of the 1976 Act, that part of

Section 3 of the Conveyancing Act 1882 dealing with

imputation of notice from agent to principal, on the

assumption that the 1882 Act in some manner already-

laid down an objective code of standards to be followed

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