Advocates Library Parliament House Edinburgh EH1 1RF
Since the 2008 credit-crunch there have been numerous attempts by purchasers under missives, particularly those concluded when the property market was still booming, to withdraw from them on a range of grounds, some justified and some imaginative. The latest judgment on this topic is by Sheriff McCulloch at Kirkcaldy, in Scotia Homes (South) Ltd. v. McLean (16 January 2012).
In early 2008 the purchasers had entered missives to buy 'off plan' a flat which had yet to be built. They argued that the contract was unenforceable for two reasons. The Sheriff found for the builders on both issues. The first was an alleged misrepresentation about the number of bedrooms the flat was to have, which is turned on the specifics of the paperwork and what had been said by the sales representatives. The second was an argument of more general relevance, that the description of the unbuilt flat in the missives was insufficiently detailed and hence void from uncertainty. This is a difficult argument to win, for where parties appear to have intended to create a binding contract, the case-law directs the court to seek to enforce the bargain, unless it really is impossible to do so - and of course, the argument cuts both ways, so a house-buyer taking such a plea has to accept that if he was right, then the selling builder would be equally entitled to repudiate, right up to the date of entry. The Sheriff was unpersuaded: Hastie Stable member Michael Upton's clients Scotia Homes were found to be entitled to enforce the missives."