Time for making requisitions

(a), Above, p. 11.

(b) see above, p. 166. (c)See below, Oh. XII. Sect. 2.

(d)Above, p. 62. (e) Above, p. 63.

12 (2)

Want v. Stallibrass.

Re Tanqueray-Willaume and Landau.

(f) See Oadden v. Pike, 34 L. J. (N. S.) Ch. 620; Rosenberg v. Cook, 8 Q. B. D. 162; Pryee-Jones v. Williams, 1902, 2 Ch. 517.

(g) L. R. 8 Ex. 175.

(h) Above, p. 168.

(i) 20 Ch. D. 465.

(k) Wms. Real Prop. 260, 21st ed.

(1) See above, p. 164: D v. Hancock, L. R. 6 Oh. 1. 8, 9, 13; 1 Dart, V. & P. 429, 5th ed.; 494, 6th ed.; 508, 7th ed.

(m) Above . pp. 164-166

(n) Re Gloag and Miller's Con tract, 23 Ch. D. 320, 327.

(o) See above, p. 168, as to the danger of waiting before taking objection to the title.

(p) l Dart, V. & P. 429, 6th ed.: 494, 6th ed. . 508, 7th ed.

If the abstract show a good holding title, the purchaser cannot insist, after the time limited for sending in requisitions is gone by, on any objection thereto, which he might otherwise have taken (q).

The conveyancer should, as a rule, be guided, in making requisitions on title, by the countenance he would expect his contention to receive from the Court in proceedings either to enforce specific performance or to recover the deposit (r). He should therefore make no frivolous or unnecessary requisitions (s), and he should be chary of asking for anything which he considers the other party not bound to concede. There are, of course, occasions when such requests may be properly made, and will be answered out of courtesy; and on making requisitions in the first instance it is legitimate to ask for what it is desirable that the purchaser should have (unless the requisition be plainly prohibited by the con- tract), although the vendor be not in strictness bound to comply. But if any requisition be met with a refusal, then the purchaser should not insist upon it, if he does not expect that his contention will be upheld by the Court.

What requisitions should be made and insisted on.

If the contract contain the common stipulation allowing the vendor to rescind the contract in case the purchaser insists on any requisition which the former is unwilling to remove or comply with (t), extra care must be exercised in selecting the requisitions which are to be pressed; and a conveyancer acting on behalf of a willing purchaser should only maintain his objections on points essential to the title. This is especially the case, where the stipulation is in the old common form giving the vendor the right to rescind, when the purchaser has insisted on an unwelcome requisition, without allowing to the latter any opportunity of withdrawing the requisition (u). For, as we have seen (x), the Courts are now inclined to allow a vendor to exercise a right of rescission according to the letter of the stipulation reserving it, provided only that he do so reasonably and in good faith and not arbitrarily or capriciously; and so long as the vendor has a good reason for rescinding (y), he is not obliged to inform the purchaser, in the notice to rescind, what that reason is (z). And if the condition do not give the purchaser the option of withdrawing the objection, on which he has insisted, the vendor may rescind without offering the purchaser any opportunity of retracting, and the latter cannot recover his rights under the contract by abandoning the objection after he has received the notice to rescind (a). Where the condition gives the right of rescission on an unwelcome requisition being made (not insisted on), the purchaser is in an even worse plight, as this gives the vendor the opportunity of rescinding on the first delivery of such a requisition (b); which he would not have if the condition of rescinding were that the purchaser should insist on the requisition (c). As we have seen (d), such conditions are now Frequently drawn so as to allow the purchaser to withdraw the requisition within a limited time after he has received notice of intention to rescind; and when this is the case, there is no reason why requisitions, which are thought needful, should not be pressed, so long as notice to rescind is not given. Where the stipulation is that the vendor may rescind, if the purchaser shall insist on any requisition, which the vendor is, on the ground of expense or any other reasonable ground, unwilling to comply with, the vendor is not entitled to rescind unless there is some such ground for his refusal to comply with the requisition (e). In any case, a notice to rescind expressed to be given "without prejudice" is null and void ( f).

Where the vendor may rescind.

See above, p. 168, as to requiring the concurrence of any person, whose interest is not redeemable without his consent.

(q) Pryce-Jones v. Williams, 1902, 2 Ch. 517. As to the limits of the rule in Want v. Stallibrass, see L. Q. R. xix. 161.

(r) Above, p. 36.

(s) 1 Dart, V. & P. 428, 5th ed.; 493, 6th ed.; 506, 7th ed.

(t) Above, p. 64.

(u) 1 Davidson, Prec. Conv. 564, 614, 4th ed.; 169, 522, 5th ed.: 1 Key & Elphinstone, Prec. Conv. 233, 234, 2nd ed.

(x) See above, p. 64, and cases cited in note (s) thereto.

(y) See Re Jackson and Woden's Contract, 1906, 1 Ch. 412, 420.

(z) Re Starr Bowkett Bdg. Socy. and Sibun's Contract, 12 Ch. D. 375.

(a) Duddell v. Simpson, L. R. 2 Ch. 102, 107. 108; Be Dam Wood, 29 Ch. D. 626.

(b) 11, Starr Bowkett Bdg. Socy. and Sibun's Contract, 42 Ch. D. 375.

(c) Greaves v. Wilson, 25 Beav. 290, 295, and cases cited in the two previous notes.

(d) Above, pp. 64, 72.

It has been held that a vendor, who has no title at all, cannot take advantage of a stipulation in the usual form enabling him to rescind, so as to escape the liability of paying the purchaser's expenses as damages (g). But this doctrine was not applied where a vendor having a beneficial interest, but not the entire legal title, sold in good faith, and a troublesome requisition to get in the outstanding legal estate was insisted on; notwithstanding that the defect of title appears to have been such as would have justified the purchaser in repudiating the contract at once on the ground that the vendor had failed to show a good title on the face of his own abstract (h). And where a purchaser claimed to repudiate the contract unless the vendor removed an objection, which the Court afterwards held to be untenable, it was considered that the vendor was entitled to rescind the contract on the objection being pressed (i). But if the vendor fail to show a good title on the face of his own abstract and the purchaser at once repudiate the contract on this ground, it is thought that the vendor cannot then take advantage of a clause in the contract reserving the right to rescind, and so save his liability to pay the purchaser's expenses as damages. For when the vendor has so failed to perform his contract, and the purchaser has at once elected to treat the contract as broken, how can the former any longer claim to exercise a right given by the contract itself? It is held that, where a vendor of land fails to show a good title thereto, he commits such a breach of contract as discharges the purchaser from the duty of performing his part of the agreement and precludes the vendor himself from enforcing any stipulation in his own favour therein contained. The purchaser, on such a breach, is entitled to rescind the whole contract, and every part of it is annulled as against him (k). The proper time, moreover, for the vendor to perform his obligation of showing a good title is upon the delivery of the abstract; and it is submitted that when the vendor has definitely assumed to perform this obligation by sending in the abstract, then if a good title be not shown on the face of it, the purchaser is entitled both at law and in equity at once to rescind the contract, and need not wait for the day fixed for completion (l). Besides, it may be doubted whether a case like this, in which the purchaser does not insist that the vendor shall remove any objection or comply good defence to the vendor's action for damages for breach of the contract, and it was laid down that the purchaser's right of immediate repudiation is not confined to cases where the time fixed for completion is of the essence of the contract; Lee v. Soames, 36 W. R. 884, where the purchaser sought, as plaintiff, to enforce his right to rescind and recover his deposit and expenses. The vendor's obligation to show a good title at the time of the delivery of the abstract is also illustrated by the case of Want v. Stallibrass, L. R. 8 Ex. 175, above, p. 180, where the vendor's utter failure to show any title at all upon the face of the abstract was held to be such a breach of contract as discharged the purchaser from the whole agreement, including a stipulation that he must send in his requisitions or objections within a specified time; see L. Q. R. xix. 172. It is respectfully submitted that the theory put forward by Parker, J., in Halkett v. Dudley, 1907, 1 Ch. 590, 596 (in which none of the above cases was cited), is erroneous. The learned judge there maintained that the purchaser's right to repudiate the contract at once upon the vendor's failure to show a good title, without waiting for the day fixed for completion, is merely an equitable right affecting the equitable remedy by way of specific performance and is solely attributable to the doctrine of want of mutuality. If that were so, the purchaser could not plead his right so to rescind the contract as a defence to the vendor's action for damages for breach of the contract; for the doctrine of want of mutuality has no place in English law, except as a defence to an action for specific performance; see below, Chap. XIX. Sec. 3. Besides, to take active proceedings as plaintiff in such a case, a purchaser must have a legal right of rescission, though the proceedings in which he can so assert this right owe their origin to the Court of Chancery's concurrent equitable jurisdiction; see below, Chap. XIX. Sec. 1. Parker, J., also said (1907, 1 Ch. 596) that he did not see why, in principle, a vendor, who has sold land, which does not belong to him, but to which he acquires a title before the day fixed for completion, should not be able to recover damages from the purchaser then refusing to complete. But it is respectfully submitted that the learned judge altogether failed to appreciate the true nature of the vendor's obligation to show a good title. We have seen that in the same case he overlooked the difference between showing title upon the face of the abstract delivered and proving title by production of the proper evidence; above, p. 166, n. (n). Both of these obligations ought properly to be performed by the vendor well before the day fixed for completion; as it is not until the title is proved that the purchaser can safely accept it, and before such acceptance he cannot safely prepare the draft conveyance; see below, Chap. XII. Sec. 1; XIX. Sec. 2. At common law too time was of the essence of the contract in all respects; so that it cannot be correct that at law the vendor performs the contract, though he shows no title on delivery of the abstract, if he can get it in just before the day fixed for completion. On the contrary, at common law the vendor was bound to have shown and verified a good title and to be ready to convey on that day; above, pp. 58, 59. It is submitted that the authorities above cited prove that the vendor's failure to show a good title on the face of his own abstract at the time of its delivery is at law such a breach of contract as discharges the purchaser from the duty of performing his part of the agreement for sale. It is not of course suggested that a purchaser claiming to rescind the contract at once for a breach of with any requisition, but merely claims to repudiate the contract at once without further discussion, falls within the terms of the usual stipulation allowing the vendor to rescind (m). It has been definitely decided that, where the vendor has knowingly or recklessly (though without intention to defraud) made some material misrepresentation with respect to the property sold, so that he is unable to convey a property answering to that which he contracted to sell, he is not entitled to rescind the contract, under the common stipulation allowing him to rescind in case of his unwillingness to comply with some requisition, so as to deprive the purchaser of his rights either to rescind the contract for misrepresentation or to enforce its specific performance with compensation (n).