The Gazette 1977

GAZ LTN - :

JANUARY/F IZ 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 v. 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 v. 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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