Unfairness.

Remedies for breach of the contract.

1. Rescission and restitutio in integrum.

2. Action for damages.

Damages

(x) The remedies for breach of the contract are fully discussed below, Chap. XIX.

(y) See above, pp. 32, and n. (b), 33-35.

(2) See below, Chap. XIX., Sec. 1, 2. recoverable by the vendor - by the purchaser.

3. Action for specific performance.

(a) Parke, B., Robinson v. Har-man, 1 Ex. 850, 855; Wall v. City of London Ileal Property Co., L. R. 9 Q. B. 249, 253; see below, Chap. XIX., Sec. 2.

(b) laird v. Pirn, 7 M. & W. 474.

(c) Flureau v. Thornhill, 2 W.

Bl. 1078; Pain v. Fothergill, L. R. 7 H. L. 158; see below, Chap. XIX., Sec. 2.

(d) Grant, M. R., Hall v. Warren, 9 Ves. 605, 608; Hexter v. Pearce, 1900, 1 Ch. 341, 346; Ruddy. Lascelles, ib. 815, 817.

(e) Eldon, C, White v. Damon, 7 Ves. 30, 35; Romilly, M. R., Haywood v. Cope, 25 Beav. 140, 151; Lord Chelmsford, Lamare v. Dixon, L. R. 6 H. L. 414, 423.

(f) Clowes v. Higginson, 1 V. & B. 524, 527; Lamare v. Dixon, L. R. 6 H. L. 414, 423, 428.

(g) See below, Chap. XIX., Sec. 3.

(h) Re Marsh and Earl Granville, 24 Ch. D. 11.

(i) Re Davis and Cavey, 40 Ch. D. 601, 607; Be National Provincial Bank of England and Marsh, 1395, 1 Ch. 190; Scott v. Alvarez. 1895, 2 Ch. 603; see below, Chap. VI

Hardship.

4. Vendor and purchaser summons.

To give a clearer view of the terms implied by law in an open contract of sale, the writer has endeavoured to express them in a manner similar to that in which special conditions of sale are usually drawn. This will facilitate the comparison of the terms of an open contract with those of a formal agreement containing the usual conditions. It will be remembered that the Statute of Frauds requires a written and signed memorandum describing (at least) the parties, the property sold and the price (o). This may take the following form: Memorandum of an agreement made this first day of May, 1898, between A. B., of etc. [Insert description] and C. D., of etc. [Insert description] whereby the said A. B. agrees to sell and the said C. D. to buy at the price of 4,000/., the freehold in fee simple free from incumbrances of All that etc. [Insert description of the property]. In witness whereof the said parties have hereunto set their hands the day and year above named.

(k) See Tamplin v. James, 16 Ch. D. 215, 222, 223; Van Praagh v. Everidge, 1902, 2 Ch. 266, 272, 273, reversed on a different point, 1903, 1 Ch. 431; below, Chap. XIII., Sec. 1.

(l) Stat. 37 & 38 Vict. c. 78.

(m) Above, p. 37; Re Hur-qreaves and Thompson's Contract, 32 Ch. D. 454.

(n) See the cases cited in note (i), above; below, Chap. XIX., Sec. 4.

(Signed) A. B. C.D.

Formal memorandum of an open contract.

Open contracts, however, are very rarely made by the signature of a formal memorandum. They usually result from the acceptance of a written offer, as thus: The White House, Geeeneield, Sussex.

1 June, 1898.

Contract formed by-letters.

Dear Sir,

I would take 4,500/. for this house with the garden and two fields adjoining.

Yours faithfully,

A. B

C. D., Esq.

(o) Above, pp. 4, 17.

10, Blank Street, W.

10, June. 1898.

Dear Sir,

I accept the offer made in your letter of yesterday.

Yours faithfully,

C.D

A. B., Esq. (oo).

In such cases it is understood that the interest sold is the freehold in fee simple free from incumbrances, unless it appear from the memorandum that some lesser interest is the subject of the contract, or that the purchaser is to take the property subject to certain incumbrances (p). Whether the memorandum of an open contract be formal or informal, the agreement comprises the following terms: The unincumbered fe simple contracted for, unless the contrary appear.

Terms of an open contract.

1. - (1.) The vendor shall show a good title to the property sold.

(2.) In order to discharge this obligation, he shall deliver at his own expense to the purchaser a proper abstract of title to the property, showing the dealings therewith and devolution thereof for the forty years next before the contract, and shall verify the abstract by producing proper evidence of all the deeds, wills and other documents appearing on the abstract and of all material facts stated therein, and shall prove the identity of the property described in the contract with that to which the muniments of title relate (q).

(6.) The vendor shall prove forty years' seisin in fee of the property sold. If therefore an instrument of disposition be offered in unsupported proof of the commencement of the vendor's title, it must be a good root of title; that is to say, it must deal with or prove on the face of it, without the aid of extrinsic evidence, the ownership of the whole legal and equitable estate in the property sold, contain a description by which the property can be identified, and show nothing to cast any doubt on the title of the disposing parties. Otherwise, any deficiency in any of the above respects must be made good by further evidence (r).

Vendor to show a good title.

Delivery and verification of abstract.

Proof of identity.

Necessity of a good root of title.

(oo) See above, pp. 9, 18.

(p) Hughes v. Parker, 8 M. & W. 244; Bower v. Cooper, 2 Hare, 408; Sug. V. & P. 298; Phillips v. Caldeleugh, L. R. 4 Q. B. 159. (q) Above, pp. 32, 33; Re Wallis and Grout's Contract, 1906, 2 Ch. 206.

(4.) Proper evidence of title means such evidence as a court of equity will force a purchaser to accept on a sale, whether admissible in litigation or not (s).

(5.) Recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, Acts of Parliament or statutory declarations twenty years old at the date of the contract shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and description (t).