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Scottish Court of Session Decisions >>
Bank of Scotland v Murray. [1697] Mor 16419 (23 July 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor3716419-023.html Cite as:
[1697] Mor 16419
Stipulation to pay an additional percentage in case of not payment at a day fixed.
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Patrick Murray, collector, having borrowed £.200 Sterling from the Royal Bank of Scotland, upon bond bearing 4 per cent, but if he failed to pay within 30 days after the term, when charged, he should be liable in the full annual-rent of six; he having failed, and being charged, suspends on this reason; that he can, be liable in no more annual-rent but 5 per cent, because, by the acts of Parliament, all the lieges have the privilege of retention. Answered, He cannot found on these acts against the Bank, which is a society erected by law, with the privilege of making by-laws and constitutions of their own; and seeing you have an evident ease of 2 per cent, in case of punctual payment, the exacting six is but like a penalty or termly failing in a bond, and cannot be reputed usury. Replied, Private pactions cannot derogate from the public law; and if this were allowed, then what hinders but they might insert a forfeiture of 7 or 8 per cent. et quod directo non licet nec per ambages permittendum est, otherwise fraus fieret legi. The Lords were divided on this point as new; but the plurality found the whole six due, not as annual-rent, but as damages liquidated betwixt the parties.
