Scottish Court of Session Decisions

Subject_1 PERSONAL OBJECTION.

Jacob Gomes Serra
v.
Robert late Earl of Carnwath

Date: 24 December 1725
Case No. No 26.

Found, that there lay a personal objection against an attainted person's, objecting his incapacity to contract.

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Jacob Gomes Serra having sued Robert, late Earl of Carnwath, upon his bond or obligation, for the payment of L. 8000 Sterling, laid out by him at the Earl's desire and for his behoof; the defender moved an objection, ‘That, by reason of his attainder, he was under an incapacity to contract, or to bind himself in payment of any sums, and therefore the obligation granted by him to the pursuer, was in law void, and could neither afford action, nor be received as evidence in any court.’

It was answered, 1mo, That attainted persons are under no incapacity to contract or bind themselves; the law has not said so: It is very true, that no person after he is convicted, or attainted of high treason, can, by deed or contract, alienate in prejudice of the Crown; but nothing hinders him to acquire by contract, or any other way, though such acquisitions will go to the Crown: And, therefore, as no person contracting with the Earl could object his attainder to save them from performance, far less is the objection competent to the attainted person himelf; But, 2do, Supposing him utterly incapable to contract, by a personal objection he is removed from objecting that incapacity, in respect that insisting in such an objection would infer a fraud and crime against him. Will he himself, or by others, receive the pursuer's money, and yet, directly against the faith of his obligation, pretend to screen himself from payment? No law will indulge such dealing. The same way a person under age, whose contracts are voidable, giving out that he is of age, or without directly affirming, managing a trade, and thereupon getting another's money or effects in his hands, will not be heard to object against his contracts; for the law says, deceptis non decipientibus jura subveniunt. There are many cases in our law, where a party, though the contract be void, cannot plead the nullity; and this happens in every case, where the party pleading, before he can come at the voidance of the contract, must allegare suam turpitudinem. And so the Lords, in a case, where two parties entering into a compromit, referring their differences to the award of one convicted of high treason, found, ‘ That there lay a personal objection against one of the parties who endeavoured to avoid the award, because the circumstances of the arbiter, being known to that party, at the time of his entering into that compromit, he argued his own fraud, in thereafter objecting to the arbiter's incapacity, which in effect he had renounced, when he brought his neighbour into the compromit.’

‘The Lords found, that there lay a personal objection against the defender's objecting his incapacity to contract.’

Rem. Dec. v. 1. No 64. p. 124.