The Gazette 1975

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 54