Scottish Court of Session Decisions

Subject_1 OBLIGATION.
Subject_2 SECT. VI.

Obligation to grant a provision by advice of friends. - Obligation granted in implement of an unlawful promise.

Pollock
v.
Campbell of Calder

Date: 8 February 1718
Case No. No 33.

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In a son's contract of marriage, the father having become bound to provide his estate to his son and the heirs male of the marriage “free of all charge and burden,” and having reserved no power to provide younger children, he, at the same time, privately elicited from his son a promise to grant him a faculty of burdening the estate with a certain sum to his younger children, which promise the son having fulfilled after the marriage, by granting a bond upon the narrative of the promise, and that the contract of marriage had been entered into by the father, in compliance with the bride's friends, that there might be no stop to the marriage; the Lords reduced the bond, at the instance of the heir male of the marriage, as being granted in consequence of an unlawful promise contra fidem tabularum nuptialium; for though of itself it be a lawful and reasonable deed for a man to provide his brothers and sisters, and the bond must have stood had it been granted ex proprio motu, yet where a man grants an obligation conceiving himself bound where he is not, or led by a scruple of conscience to fulfil a promise which ought not to have been exacted of him in these circumstances, and which the law reprobates, such obligation cannot be effectual.——See Appendix.

Fol. Dic. v. 2. p. 18.