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153 Cards in this Set
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- Back
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Menzies, Bruce-Low and Thomson v McLennan |
The position of commission not being paid if the sale falls though ought to be clearly stated to avoid difficulties. In this case a firm of solicitors who were approached by a brewery owner in Dalketh. He asked them to arrange the sale of the brewery. They agreed on ther commission (e.g. 2%). They eventually agreed to sell it however; the purchaser pulled out. The solicitors put in their fee note. The court found in favour of the lawyers because they did not guarantee performance. |
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Lothian v Jenolite Ltd |
If it is to be a sole (when there is only one agent within a particular geographical area) agency it should say so. In this case the agent thought he had a sole agency however; it was not in the contract. Therefore it was a misunderstanding. |
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Fernie v Robertson |
This case involved a bed bound old lady. She lived in a large house with a roof that needed fixed. The daughter paid for the roof. The mother died, the trustee took charge however; the brother said that she should pay herself. The court found in favour of the daughter. Because she acted as the mother would have instructed her if she could have. |
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Barnetson v Petersen |
An implied agency derived from the actings of the parties. This case involved a Danish ship which turned up needing repairs. Barnetson was a local ship broker. He helped fix the ship. He sent a note to the owner Petersen however; they did not want to pay. The court held that they knew that repairs being done and therefore the actings of the parties indicated that there was agency. |
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Freeman Lockyer v Buckhurst Park Properties (Mangal) Ltd |
This case involved a firm of architects who had a lot of dealings with Buckhurst Park, There was a man who they thought was the managing director. They said that there was no authority to do this. The firm of architects argued that they did not indicate that he was not the managing director. |
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Gregor Homes Ltd v Emlick |
A tenant under his lease agreement was to tell a nominated individual if they wanted to end the lease. The tenants told another person who they thought was the landlords agent. The court held that it was proper termination because they thought they were telling the right person. The principal is personally barred from denying the agent’s authority. |
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Forman & Co. Proprietary Ltd v The Liddesdale |
You cannot reclaim for extra works ordered by an agent out with his authourity. |
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Keighley Maxstead & Co. v Durant |
Furthermore the agent must have made it clear to the third party that he was acting as an agent. This was not made clear in this case. They did not know who the principal was going to be. Therefore there must be clarity on this fact, the principal must have had a legal existence. |
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Phonogram v Lane |
This case involved Phonogram the record company and Lane who wanted to set up a company called fragile management limited. The company was going to manage a pop group called cheap mean and nasty. Lane borrowed several thousand pounds. After some time phonogram wanted the money back. He said that they couldn’t get it back because the company had it. However he had not registered the company and because of the operation of the statute Lane became liable |
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Boston Deep Sea fishing Co v Ansell |
In this case Boston required a new trawler. Ansell was the company director and he was asked to go and find a boat right to build them a new boat. He found a firm that was short of business. They were so happy that they would pay Ansell commission. He went back and told the board that he had found a boat right. They bought the boat and it was duly constructed. There were however issues with the boat. During the discussions it his colleagues found out about the commission, he refused to give it to them. The court held that the money belonged to Boston. |
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McPherson’s Trs. v Watt |
This case involved a lawyer from Aberdeen (in Aberdeen lawyers are called Advocates). Old Mrs McPherson died and left four houses. Watt undertook to sell them on behalf of the estate to a business that belonged to his brother. The trustee had an issue with this because he had not disclosed his interest. The fact that he kept quiet about it was the issue was held to be breaking the fiduciary relationship and causing a conflict of interest. |
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Maffet v Stewart |
Other duties of an agent encompassed within the fiduciary duty include the fact that an agent mustn’t sell his own produce to the principal without approval In this case the principal asked the agent to find some grain. The agent agreed however; the agent produced grain from his own stores. The grain and the price was ok. However; the agent didn’t ask, nor buy assets from the principal without his express approval. |
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Taylor v Logan |
The agent must keep accounts |
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Liverpool Victoria Friendly Society v Houston |
There is a duty of confidentiality |
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Milne v Ritche |
If the agent acts beyond his authority, the principal may still be bound by the contract but the principal may recover from the agent. |
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Stone & Rolfe Ltd v Kimber Coal Co Ltd |
An agent is not normally responsible for the actions carried out on behalf of his principal, and the principal must indemnify him for any loss he suffers |
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Glendinning v Hope |
An agent is entitled to a lien over the principal’s assets in his possession if he has not been paid |
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Graham Page v Combined Shipping and Trading Ltd |
The principal tried to get out of the obligations by being shifty. He was not acting in good faith. |
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tone & Rolph Ltd v Kimber Coal Co Ltd |
Where the agent is an agent for a named principal, he has no liability |
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Johnston v Little |
In this case the agent didn’t indicate that he was acting on behalf of somebody. He undertook to hand over some old title deeds. They were expensive to get re-copied. The lawyer failed to hand them over. He tried to argue that he couldn’t be sued. He did not use the words “on behalf of our client” therefore he became liable himself - so note the use of the words “on behalf of” or “acting on instructions received from” etc. |
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Armour v T L Duff and Co |
In this case the third party wanted to sue the agent. The agent was acting for a ship owner. The court held that it was very easy to find out who they were acting for because the ship was registered and they could have found out easily |
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Gibb v Cunningham and Robertson |
Where there is an undisclosed principal but the agent is acting under the principal’s express authority, the agent will be liable unless he is prepared to reveal who the principal is. In this case the third party sued the solicitors because they would not disclose who the principal was. |
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Ruddy v Marco |
In order for the agent not to be liable he must expressly say he is acting on behalf of someone, even if they do not accept responsibility. |
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Halifax Life Limited v DLA Piper Scotland LLP |
If there is a on existent principal the agent is liable. Halifax made a loss. They sued the agents. The syndicate behind the agents pulled out. Highlights the importance of excluding liability. |
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Laidlaw v Griffin |
The third party may, however, when he discovers that there is a principal, elect to sue either the agent or the principal. Usually the principal |
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Ferrier v Dodds |
Once a person has chosen to sue either the agent or principal they are stuck with that choice. |
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British Bata Shoe Co. Ltd v Double M Shah Ltd |
Normally an agent must act within the limits of the authority given him. And if he does so, the principal is bound. However, if the agent acts without any form of authority whatsoever, or acts in such a manner that no reasonable person could seriously believe that a principal would authorise him to behave in that manner, the principal is not bound. This case is an example of an agent who acted very strangely. Double M were a shoe shop who’s bosses went to the shoe companies HQ. An employee said that they could get an order if they sent a blank cheque to him. The shoes were delivered however the employee kept the money. The court found in favour of the shoe company because no reasonable person in their position would do what they did. By the apparent actions of the agent -which may mean that the third party still has to pay the principal even though he had already paid the agent. The defender’s cashier had asked for payment by means of blank cheques and astonishingly the pursuers supplied them. |
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Mazur v Primrose and Gordon W.S |
A solicitor was entitled to believe that the lawyer for someone who was suing the solicitor had the apparent authority to arrange a settlement of a court action. |
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Watteau v Fenwick |
If there used to be authority and it has been withdrawn, other parties should be informed or the principal will still be held liable for the unauthorised act of the agent. |
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Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd |
Apparent authority is in many respects another term for ostensible authority, and arises where an agent acts in the course of business common to people in his position, even if in reality he is up to something naughty. |
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Gilmour v Clark |
An agent must make good any loss to the principal through his negligence. This involved a hornier. He put the principals goods onto carts and then onto a ship. However he put them onto the wrong ship and then that ship sank. He then became liable for his incompetence. |
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Caparo Industries Plc v Dickman and Ors |
An agent is normally liable only to the person with whom he is in an agency relationship. This was involves an investor who wanted to invest in a particular business. It wanted an audit of the business. The investment was made however; it turned out that this was a bad idea. The question was could the auditor be liable for every person who was investing. It was held that they could not. |
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Anderson v Croall |
If an agent exceeds his authority, he may be sued for breach of warrant of authority. In this case an auctioneer at Musselburgh racecourse sold a horse that had done very well. It turned out that Anderson knew what he was doing and it was a good horse. However; it turned out that they did not have the authority to do so. He sued the auctioneer for not being able to sell him the horse he wanted therefore breach of warranty and authority. He won. |
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Cheshire Mortgage Corporation Ltd v Grandison |
Typically solicitors are agents for their principals, but their warranty of authority does not extend beyond being agents, and not go as far as being responsible for the identity or standing of their clients. This case involved a mortgage company that was induced to give money to bad people to buy property. The company wanted to sue the peoples solicitor. It was held that a solicitor is not responsible for their clients standing. |
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Saloman v A. Saloman & Co. Ltd |
Demonstrates the separate legal identity of a company. |
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Lee v Lee's Air Farming Ltd |
Demonstrates the seperate identity of a company. |
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MacAura v Northern Assurance Co. Ltd |
Proved separate legal identity of a company. |
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Gilford Motor Co Ltd v Horne |
Courts would pierce the corporate veil when it was being used to dodge legal obligations. |
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Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd |
Courts would pierce the corporate veil to avoid a UK company trading with the enemy. |
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Woolfson v Strathclyde Regional Council |
Courts would not pierce the corporate veil when it was only being done so a company owner would get compensation paid to him instead of the company. |
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Prest v Petrodel Resources Ltd |
Lord Sumption talked about the corporate veil in length he said that in general the corporate veil should only be lifted where it is being use to“evade a legal obligation or frustrate the operation of law.” He used the case of Gilford to illustrate this. |
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Hickman v Kent and Romney Marsh Sheepbreeders Assn |
This case involved a farmer who bred sheep for this company. They're was an article which said in any dispute there must be arbitration first. The farmer in question went to court straight away. The court said that he should have followed the articles. |
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Dorchester Finance Co Ltd v Stebbing |
They have a duty to act with due skill and care (Companies Act 2006 s.174). - This was a money management company run by three accountants. Stebbing was the main man. The other two came in on Fridays to sign cheques etc. They pre-signed loads of cheques so that they didn’t have to come in. It was very easy for him to steal money. H spent it on fags, women and booze. The court held them all liable because they should have been more prudent, especially because they were accountants. |
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Multinational Gas and Petrochemical Co Ltd v Multinational Gas and Petrochemical Services Ltd and ors. |
No duty of care owed by directors to creditors whilst still solvent. |
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Williams v Natural Life Health foods |
This was a case where a director acted negligently. There was a couple who wanted to buy a health food shop. They found a company who could advise them, The company was run by a Mr Mistlin. He provided the advice, sometimes he did it on headed paper, sometimes on scraps of paper and through fax. It turned out that his advice was shite. They attempted to sue him and the company. The House of Lords held that he was acting in his professional capacity because he was being incompetent through the company. Therefore only the company was liable. |
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Standard Chartered Bank v Pakistan National Shipping Corporation and Ors |
If the director is deliberately acting fraudulently, albeit through his company, his fraud removes his protection and he may become jointly and severally liable with the company for his fraud. This case involved a fraud on the Vietnamese government involving bitumen. There was a fraudster at the heart and a man had a company called oak. Mr Mechra falsely dated stuff. He argued that it was his company but not him. |
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Williams v (1) Natural Life Health Foods Ltd and (2) Mistlin |
There may be issues to do with personal liability in negligence actions, so it is important that the members are always seen to act on behalf of the LLP |
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Office of Fair Trading v Lloyds TSB Bank Plc |
The protection of claiming money back from credit companies extends to goods bought within the EU and possibly beyond. |
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Durkin v DSG Retail Ltd |
D bought a computer and tried to return it after problems came up with it. However he had bought it on a restricted use debtor-creditor-supplier agreement and the shop did not want to give the money back to the credit company so would not take it back. Eventually the supreme court decided the shop should have taken the computer back immediately. |
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McSkimming v Royal Bank of Scotland Plc |
In this case, the arrestee had an object that had been arrested but sold it. He became liable for the debt. |
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High Flex (Scotland) Ltd v Kentallan Mechanical Services Co |
Anybody receiving the arrested goods while knowing that they are arrested is required to repay the asset to the arresting creditor. |
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Hertz v Itzig |
Arrestments are ranked by their date of service |
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Sutie v Ross |
Arrestments served on the same day rank pari passu. |
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Gillespie v Toondale |
Defined prima facie case. |
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McCormack v Hamilton Academicals Football Club |
This case involved the coach (McC) he was tough. He was also sexist. Some of the people hated him so much he got fired. The coach brought an unfair dismissal case. He wanted to arrest the club's bank accounts. The issue was the club was funded mostly by one really rich person. Hamilton Accies were almost totally dependent on this guy. The coach convinced the court that this may be the case so he was successful in they arrested the bank account. |
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Bain v Rangers Football Club |
Bain was a director. He was concerned that Rangers wouldn’t meet his payments. There was an enormous sum owed to the inland revenue and if this debt was called in the company would be insolvent. He was successful in convincing the court. |
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Karl Construction Ltd v Palisade Properties Plc |
Defined why we have section 15K hearings under the DSA. |
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Fish & Fish v Sea Shepard UK |
This is actually arrestment of a ship but the principle of the law is still applicable to diligence on the dependence generally. Sea Shephard Ltd are an environmental group. F&F were fishing for tuna using nets that are able to catch dolphins. Sea Shephard rammed an F&F boat. Later on, F&F noticed Sea Shepherd had a boat in Lerwick and sent sheriff officers to arrested the vessel. In court, it was held that F&F were within their rights to do so even though they hadn’t started an action because Sea Shepard could have left. |
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Playfair Investments Ltd v McElvogue |
Relates to inhibition. |
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Bawden v London, Edinburgh and Glasgow Assurance Co. |
If an agent makes a misrepresentation about a proposer even though the proposer has been entirely truthful then the policy is still valid. |
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Newsholme Bros. v Road Transport and General Insurance Co. Ltd |
If and agent and a client collude to misrepresent the insured or insured item then the insurer is entitled to repudiate all libility. |
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Dawsons Ltd v Bonnin |
“Above address” This case involved a haulage company had a truck which had to be stored at the factory premises in Glasgow. The truck was left outside one night and was stolen. The company made a claim but it was refused because they had warranted to keep that truck on the premises. Held that the warranty could not be breached without the contact being rendered invalid. |
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MacAura v Northern Assurance Co |
Separate legal company personality. A person cannot claim for a loss if the goods are in the name of a company. |
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Cowan v Jeffery Associates |
Similar to the MacAura case. This case affirmed the MacAura case as precedent. |
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Looker v Law Union and Assurance Co |
If a proposal form has been sent to an insurer but has not received then the contract will not be held as having commenced. |
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Canning v Farquhar |
If a proposal form has been sent to an insurer but has not received then the contract will not be held as having commenced. |
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Black King Shipping Corporation v Massie |
If there is one honest claim and one dishonest one then the bank may honor the honest one. |
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Dino Services v Prudential Assurance Co |
The wording of the contract was poor. The insurer stated that they would pay out if there was a theft by "forceable and violent means". There was a theft but the thief picked the lock. The insured lost out because of this. |
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Harris v Poland |
An old lady who lived in England. She had silver and wrapped it up and put it in the safest place she could. She was afraid of German invasion so she hid it in the bottom of the fireplace. She then forgot and lit the fire, the silver melted. The insurance company insured her against an unintentional loss. The courts agreed with her that she did not intend to make the loss. |
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Adamson v Liverpool London and Globe Insurance Co |
There was a cerk who had been stealing from the company. The company tried to claim under their policy. It turned out that there was a contract term which only covered items stolen 15 days before the insurer was notified. The court held this to be ok. |
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Leyland Shipping Co. v Norwich Union |
There must be proximate cause for an insurance claim. A ship torpedoed in the Great War. Harbour master wouuldnt let it in. Sank outside. Held that the sinking was caused by the torpedo which was an act of war which the policy did not cover. |
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Cleaver v Mutual Reserve Life Fund Association |
Wife took out an insurance policy on her husband, she poisoned him. It was held that she couldn’t benefit from a criminal act. Therefore this became the rule. |
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Beresford v Royal Insurance |
Suicide was illegal at the time. Today most policies cover it unless a person is a suicide risk. |
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Castellain v Preston |
Subrogation. This is where an insurer obtains all the insured's rights against third parties after the paying out of a claim. |
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Komarosof v Mickle |
not a UK case, but one that is widely referred to for its good sense – pictures in sand). Somebody wanted to get artistic copyright in something that was constantly changing. It was held that because it was constantly changing. |
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London University Press Ltd v University Tutorial Press Ltd |
The work itself need not be startling, but it must be author’s own work and not copied. As part of his job he would create maths questions for exams. He was hired by a company to make practice exam questions. The questions that he made for the company were similar to the ones he set in his exam. They were not the same. Despite the fact that London Uni thought they were stolen it was held that they were not similar enough to be the same. |
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Interlego AG v Tyco Industries Inc |
There must have been some degree of skill and effort expended in producing the work, so that if there is only very minor work it will possibly not establish copyright. There was too much similarity between a man idea and a produced version. |
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Hyperion Records Ltd v Sawkins |
Where skill and effort has been expended, this will protect the copyright. In this case a musicologist discovered some books of music by a composer called Lalande. The music was from the 16th century. He transcribed it for the 20th century. He was listening to the radio and there was a orchestra and noticed that it was his edition. He called the record company and said that there was a breach of copyright. They told him to go and take a flying f.uck to himself. He argued that because it was his edition he should get royalties. |
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Naxos v Project Management (Borders) Ltd and K.J. Salmon |
This case proved that directors are liable. Naxos was a record company A businessman downloaded other peoples music and sold compilations of it under the name of his company. Naxos realised this. Held that he and the company were liable. |
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Corelli v Gray |
In this case, there was a fraudulent author who was claiming for the copyright .He had actually stole from the person he had the claim against. |
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Lamb v Evans |
Sometimes there is a further defence that the substance is identical anyway (as in street maps), If you can’t avoid having the same thing.unless the first author’s mistakes are replicated. |
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AA v Ordinance Survey |
In this case, a person copied OS maps. They found out because the small details were exactly the same. |
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IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd |
It is for the defender to prove that there was not copying and that anyone would have designed the programme in the same way (the “functional necessity” argument (there is only one way of writing a computer program).Adaptation of a programme into a different computer language or code can still count as infringement. However, lawful users may make back-up copies, and they may pass on their rights to any reasonably anticipated user. |
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Quantel Ltd v Spaceward Microsystems Ltd |
The computer was visible, but its workings well hidden and therefore patentable. There was something in the computer that was new and patentable. There was a competitor who said that this computer was known. It was held that the new item was well hidden inside the computer.) |
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Inc. v Tabur Marine (Great Britain) Ltd |
This case featured a boom on a windsurf. A company had developed a articular type of boom and they had tested it on a beach on the south coast and patented it. A competitor argued it wasn’t new. It was held that because they tested in public it had lost the newness factor. |
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Berlei (UK) Ltd v Bali Brassiere Co. |
This case involved Bali trying to persuade Berlei customers were just as good because the name was similar. There is special protection for coats of arms, flags etc. |
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Reckitt & Colman Products Ltd v Borden Inc |
This case involved Borden producing a similar squeeze lemon to Reckitt. Reckitt has to prove that there is going to be damage to profits. There was an intention to trick people etc. |
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Bristol Conservatories Ltd v Conservatories Custom Built Ltd |
It is not permissible to use a competitor’s products to give the impression of one’s own work. The first company’s conservatories were used in the promotional material of the first. |
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Schuh Ltd v Shhh...Ltd |
In addition to passing off, an existing business may try to obtain an interdict to prevent the use of a name similar to a trade-marked name. An enterprising shoe seller decided that it was a good idea to go round houses selling them. IT was held hat there was sufficient difference between the two. |
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Taittinger v Allbev Ltd |
It is also possible to protect product goodwill, as in the French protection of champagne (elderflower champagne). T were unhappy with A because they were making elderflower champagne. This was prevented. |
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Erven Warnick BV v Townend and Sons (Hull) Ltd |
Advocaat. Where there is misrepresentation, the courts will protect the original owner of a recognised product |
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Marks and Spencer plc v One in a Million Ltd |
You can get passing off on the Internet with domain names. One in a million bought the name before M&S it was held that they cannot do this unless they have a genuine interest. |
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Rowland v Divall |
Details the implied term in a contract of sale that the seller has the right to sell the goods. |
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Niblett v Confectioners Materials Co |
The buyer can enjoy his purchase quietly unless there is some charge over them. |
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Beale v Taylor |
Goods sold by description will correspond with their description. |
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Clegg v Anderson |
Problem with the weight of the keel of a yought meant it did not match description so contract was set aside. |
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Thain v Anniesland Trade Centre |
A vehicle bought for a very low price did not need to be of incredible quality because no one would expect this from looking at the price. |
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Bartlett v Sidney Marcus Ltd |
Seller made clear there was a problem with a car to be purchased so the purchaser could not claim for the repairs to sort this problem. |
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Grant v Australian Knitting Mills |
Where the buyer explains to the seller the purpose for which the goods are being bought, the goods must be reasonably fit for that purpose. |
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Griffiths v Peter Conway Ltd |
Itchy fur coat could not be returned just because it was itchy as this is common among all fur coats. |
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Ashington Piggeries v Christopher Hill Ltd |
Where it is understandable that the buyer is relying on the sellers knowledge to know if the goods will be fit for purpose the seller is strictly liable if they are not. |
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Godley v Perry |
Goods must comply to a sample. |
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Armour v Thyssen Edelshahlwerke AG |
T sold steel to an ironworks which went bust, their insolvency practitioner was A. T had put a retention of title clause in their contract with the ironworks so was entitled to get their steel back despite the fact the company had gone bankrupt. |
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Pignataro v Gilroy |
If there has been a delay in the delivery of the goods and the delay is the fault of one of the parties the risk lies with the party at fault to the extent to which loss arose from the fault. |
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Macleod v Kerr |
A checque bouncing a couple of days after it had been used to purchase a car meant the fraudster had had good title in the car at the time of selling it to another man as the contract would have been voidable and not void. This meant the person who bought the car was able to keep it as he had got good title in it. |
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Archivent v Strathclyde RC |
A buyer can get good title in goods when he buys them in good faith even where the seller does not have good title because of a retention of title clause. |
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O'Farrell v Moroney |
Falconry case. Using the falcon in a way he was told not to and killing it was held to be inconsistent with the ownership of the seller and therefore the buyer had accepted the goods. |
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J & H Richie Ltd v Lloyd Ltd |
When a seller has to make repairs to a buyers goods before acceptance the buyer must be given details of these repairs so as to make an evalutation as to whether he is willing to accept the goods. |
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ADTLtd v BDO Binder Hamlyn |
Illustrates joint and several liability of partnerships with regards to accountancy firm where all partners had to pay out for a partners cock-up. |
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Khan and Anr. v Miah and Anr |
A partnership does not actually begin until the partners begin to run a business together with the view of making a profit. |
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Popat v Shonchhatra |
Where a partnership agreement is silent on certain points, or does not exist at all, the Partnership Act will be used to fill in the gaps. |
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Paterson Bros. v Gladstone |
Ifa third party’s belief in a partner’s authority to bind the firm is unjustifiedbecause the act in question is clearly beyond the normal course of business,the partnership is not bound. With regards to a pawn loan with such an extravagant rate of interest it could not be within the normal course of business. |
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Fortune v Young |
Recommendation for someone taking a tenancy for a flat was not considered to bind the firm even though it was written on headed notepaper. |
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Mercantile Credit Co. Ltd v Garrod |
If a third party dealing with a parter has no reason to believe that partner does not have the correct authority for their deal then the firm shall be held liable. |
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Dubai Aluminium Co Ltd v Salaam |
Greatly extended the scope of 'in the course of business' with regards to partnership vicarious liability. Was found the firm was liable where a parter had been creating false documents to commit a fraud. Because creating these documents correctly was in the course of business so to was creating them fraudulently. |
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Mair v Wood |
A partnership is not liable for a partners actions where the victim of those actions is a partner himself. |
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WelshvKnarston |
A retiring partner is liable for the debts arising during the period of his partnership but not those arising once he has left. |
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Pillans Bros. v Pillans |
Partners must not privately compete with their partnership. |
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Finlayson v Turnbull |
Partners have a fiduciary duty towards eachother and must act in good faith towards eachother. |
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Blisset v Daniel |
You must not use the method of expelling a partner out of spite or meanness. It must be exercised in good faith. |
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RacalVodac Ltd v. Hislop |
Sequestration was not granted by the sheriff where the creditor had allegedly got the wrong person for the debt. |
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RoyalBank of Scotland v. Forbes |
Sequestration will not be granted by the sheriff where the creditor petitioning for it has already had his debt paid by the debtor. |
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NationalWestminster Bank v W.J. Elrick & Co |
Sequestration will not be granted by the sheriff where there is sufficient security for the debt. Note: in this case the debtor was not able to prove this security so was sequestrated anyway. |
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Liandu v Go Debt Ltd |
It is possible for the court to recall an award of sequestration if there have been defects in the procedure leading up to the award. |
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Nakeski-******* v Gordon |
The courts will not recall an award of sequestration for a trivial defect and if the recall would prejudice creditors. |
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AiB v Halifax plc |
Post sequestration capital assets (aquirenda) must be transferred to the trustee. |
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Ahmed'sTr. v. Ahmed |
A gratuitous alienation was reduced where the debtor had given up his right to have a lease assigned to him. |
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Short’s Tr. v Chung |
Details having a gratuitous alienation reduced. |
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Nottay’s Tr.v Nottay |
If the asset concerned in a gratuitous alienation has already been transferred to a third party the recipient (the original one) should give the trustee the true value of that asset. |
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Lombardi's Tr. v. Lombardi |
A gratuitous alienation will not be reduced if at the time of the alienation the debtor was solvent. |
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BalcraigHouse’s Trustee v RooseveltProperty Services Ltd |
A transaction was reduced where it gave preference to a creditor before sequestration by giving that creditor security over a hotels moveable assets. |
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NordicTravel Ltd v ScotprintLtd |
Defines collusion as a fraudulent design to cheat other creditors. |
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Nicoll v Steelpress (Supplies) Ltd |
Defined the nova debita exeption. |
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BarclaysBank plc v O’Brien |
A spousal guarantee cannot be called in if no one has attempted to explain to the spouse the significance of the guarantee and the financial situation of the debtor she is guaranteeing. |
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Smith v Bank of Scotland |
Scottish case in tandem with O'Brien. Said a bank would have to explain to a spouse the significance of signing a guarantee. |
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RoyalBank of Scotland v Etridge |
A bank should ensure that a spouse has the benefit of legal advice before signing a guarantee. They must also obtain evidence of this advice and allow the spouse to see the accounts of the debtor she was guaranteeing. |
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Royal Bank of Scotland v Wilson |
Etridge does not directly apply to Scotland and the only grounds on which a guarantee can be reduced are misrepresentation or undue influence. |
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Thomson vRoyal Bank of Scotland |
If there is an act or attitude that should warn the creditor that the cautioner does not know what he is signing and they do not look into this they cannot rely on the bond of caution. |
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Ahmed vClydesdale Bank plc |
The idea of not understanding a guarantee does not allow you to 'wiggle out' of that guarantee. |
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Cooper v Bank of Scotland and Cooper |
The creditors could not rely on a guaranteebecause there was evidence that the guarantor had not known what it was she wassigning. |
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Stirlingv Norwest Holst Ltd |
Application of the contra proferentem rule with regards to a guarantee. |
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TheRoyal Bank of Scotland v Carlyle |
An oral representation can be automatically incorporated into a loan agreement. |
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Swanv Bank of Scotland |
A guarantee cannot be enforced when the principal debt is illegal. |
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Stevensonv Adair |
Guarantor could not get out of guarantee even though the creditor was below the age of legal capacity. This was because the guarantor had known this and had known that the creditor was acting in the course of business. |
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RoyalBank of Scotland v Ranken |
A material misrepresentation which induces the guarantor into the guarantee will cause the guarantee to be held as void. |
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Young v Clydesdale Bank |
It is the duty of a guarantor to find out the creditability of the debtor. |
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Smithy'sPlace Ltd v Blackadder andMcMonagle |
After paying under a guarantee you can claim your money back from the debtor if they have it. |
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Thow’sTr. v Young |
Once a guarantee has been used the creditor should assign any rights he has against the creditor to the guarantor. |
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RoyalBank of Scotland v Holmes |
In the event of a fraud taking place with regards to a guarantee the guarantee should still be read as its own document. Not taking the fraud into account necessarily. |
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Yeoman Credit Ltd v Latter |
Even if a principal debt is held as void this does not void the guarantee and the guarantee can still be claimed against. |
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HuewindLtd v ClydesdaleBank plc |
A guarantor cannot be liable for more money than is detailed in the guarantee. |
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WoodfieldFinance Trust (Glasgow) Ltd v Morgan |
Death of the debtor prevents any further liability tothe guarantor. |
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West Lothian Oil Co Ltd v Mair |
When giving a pledged asset to the creditor would be difficult it can be locked up on the debtors property and the creditor can be given the key. |
