Scottish Court of Session Decisions

Subject_1 IRRITANCY.
Subject_2 SECT. VIII.

Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.

Watson of Saughton
v.
Hamilton of Monkland

Date: 27 November 1716
Case No. No 91.

An adjudging creditor agreed to accept of a less sum than that in his adjudication, upon condition, that if it should not be paid at a certain day, he should be allowed to recur to the adjudication. Found, that the irritancy was purgeable after the term of payment.

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Robert Hamiltion, younger of Wishaw, (from whom Saughton has right by progress), having adjudged the estate of Monkland, against which adjudication there are important objections very obvious; several years thereafter, it was agreed betwixt them, that, upon Wishaw's disponing the adjudication to Monkland, he Monkland should pay a certain sum (to which by paction the adjudication was restricted) at four several terms therein mentioned. The defender did accordingly make some payments; but neither of the whole sums agreed, nor at the respective terms contained in the agreement, but posterior thereto, notwithstanding of an irritancy therein, declaring, that, in case punctual payment be not made at the terms stipulated, that then the said minute of agreement should be void and null, except as to allowance of what Wishaw should actually receive, and that the said minute was only a corroboration of Wishaw's diligence above-mentioned; but the defender contending, that the above clause was an irritancy, and therefore purgeable at any time before declarator, the question came to turn upon this, viz. whether the pursuer could lay hold on the minute of agreement as corroborating Wishaw's adjudication, and at the same time refuse to accept of the restricted sum in that minute, after deduction of payments made?

And here it was contended for the pursuer; That all irritancies are not of the same kind; that here there was a transaction betwixt a debtor and his creditor; here was liquide remissum to the debtor, but conditionally and provisionally, that he should pay at the times, and in the manner agreed, wherein he having failed, he must lose the benefit of the restriction. Now, by law, transactions are stricti juris, and to be performed in forma specifica; that this was not a penal irritance, inflicting any punishment, but the whole debt in the adjudication was just and lawful before the agreement; and the defender here only loses a favour which was indulged to him by the creditors upon a potestative condition in the defender himself; which not being performed, the defender could blame none but himself for this loss; and yet, after all, he comes but to pay his own just debt.

Answered for the defender; Supposing the minute could be of the sense the pursuer pleads, yet it is wholly penal, as excluding the defender from just defences; and such clauses irritant, which are penal, have no effect till declarator, which does not only take place, in such irritancies, in pignoribus. but in all other cases, as the Lord Stair observes, B. 4. T. 18. § 3. where his words are, “sometimes clauses irritant bear that the right shall thereby become null, ipso facto, without declarator. But, notwithstanding of this, clauses irritant are not effectual without they be declared, where they are exorbitantly penal; for the Lords, ex officio, have power to modify exorbitant penalties, albeit they bear to be liquidate of consent of parties; and, for the same cause, they have power to qualify those clauses irritant, and to allow time for purging the same”; which words of the author appear by the sequel to be meant of clauses irritant in any kind of rights, as well as wadsets.

The Lords found the irritancy in the said agreement was purgeable at the bar by payment of what was resting of the principal sum, at such a time as the Ordinary in the cause should appoint; with certification, that, if payment was not so made, the pursuer should have access to the whole sums contained in the adjudication, excluding all defences and objections except payment.

Act. Arch. Hamilton. Alt. Boswell. Clerk, Roberton. Fol. Dic. v. 1. p. 490. Bruce, v. 2. No 37. p. 48.