Vendor's reasons for not desiring an open contract.

(m) Above, p. 62. (n) Above, p. 67. (o) Above, p. 58.

(p) See above, pp. 26, 33, 41, 47, 50.

In settling a private contract then, the object of the draftsman acting for the vendor will usually be to obtain the insertion of the stipulations made on sales by auction: while the duty of a conveyancer acting on the purchaser's behalf is to oppose such provisions in all points where they can be shown to be unreasonable. We will now go through the clauses in detail.

Points to be considered in settling a private contract.

The payment of a deposit is not an unreasonable requirement, and is usually demanded, unless the purchaser be a person of well-known solvency (q). Nor can such a requirement work unfairly to the purchaser, if the contract be in other respects an open contract; provided he be careful to stipulate for payment of the deposit to some responsible person as stakeholder, and not to the vendor himself or to his solicitor as his agent (r). But if it be proposed that the contract shall contain special stipulations as to title, a purchaser paying a deposit may find himself in this predicament, which is by no means uncommon: - the special condition may be considered in equity to be so unfairly drawn that the Court will not enforce specific performance at the vendor's suit without his complying with some requirement as to title, which is prohibited by the letter of the condition (s). The vendor may decline to do this; and the purchaser cannot force him to do it, because if the purchaser apply for specific performance, the vendor would not be bound to prove more than a good title according to the contract (t); and even if he failed to prove this, the purchaser would be obliged either to waive his objections to the title and pay the costs of the inquiry into title (u), or to submit to have his application dismissed without costs (x). And if, in such circumstances, the purchaser seek to recover his deposit, he will fail, because that is a matter depending solely on the effect of the contract at law. And the common law, not recognising the unfairness which in equity prevents the vendor from enforcing the contract specifically, will regard the purchaser repudiating the letter of the special condition as having broken the contract, and will not therefore aid him to recover the deposit (y). And if he complain of hardship, he will probably be told that he was a fool to buy land on special conditions as to title. These considerations ought to be present in the mind of a purchaser's adviser, when it is demanded that his client pay a deposit and yet submit to special conditions as to title; and he should endeavour, if he must give in to the demand, to yield only at the price of some substantial concession to himself, as that the abstract shall be verified free of all expense to the purchaser.

Deposit.

(q) Davidson, Free. Conv. vol. ii. pt. i. p. 4, 4th ed. (r) See above, p. 28.

(s) Above, p. 38.

(t) Re Banister, Broad v. Munton, 12 Ch. D. 131, 145; Lawrie v. Lees, 14 Ch. D. 249; 7 App. Cas. 19.

(u) Bennett v. Fowler, 2 Beav. 302; Fry, Sp. Perf. Sec. 1320, p. 590, 3rd ed.

(x) Lewis v. Loxham, 3 Mer. 429; Maiden v. Fyson, 9 Beav.

347; Sug. V. & P. 646: 2 Dart, V. & P. 1129, 5th ed.; 1263, 6th ed.; 991, 7th ed. In such case the purchaser could not recover his own costs as damages at law; Maiden v. Fyson, 11 Q. B. 292.

(y) Re National Provincial Bank of England and Marsh, 1895, 1 Ch. 190; Re Scott and Alvarez, 1895, 2 Ch. 603; see above, p. 38.

It is a matter of course to fix a day for completion. A time should be allowed within which it is reasonably likely that all things preliminary to completion will be done. Too often the day for completion appears to be fixed at hazard, or without any expectation that completion shall really then take place.

Time for completion.

It is of course as necessary to stipulate expressly, that fixtures or timber shall be taken at a valuation, on a private sale as on a sale by auction (z).

Fixtures or timber at a valuation.

A purchaser should, as a rule, resist the insertion in a sale by private contract of any special stipulations limiting the vendor's obligations in respect of showing title, and should only accept such provisions on condition of concession in other matters to himself. Thus if it be proposed that the abstract commence with a deed less than forty years old, and that a deposit be paid, the purchaser should require the vendor to undertake expressly that the deed is a good root of title. This would, it is thought, save the purchaser from losing his deposit in circumstances such as those, which have just been discussed (a). And further concessions should certainly be demanded as the price of consent to any large curtailment of the time for which title is required to be shown by law; as that the vendor should bear the whole expense of verifying the abstract.

Commence -ment of title.

It is quite proper to provide in a private contract for sending in the purchaser's requisitions or objections within a limited time, to be of the essence of the contract (b). But the purchaser should take care that a reasonable time is allowed for perusal of the abstract by his counsel; and he should stipulate that the abstract be delivered within a specified time (c).

Limiting time for making requisitions or objections.

(z) Above, p. 60.

(a) Above, p. 87.

It is usual to reserve to the vendor the right to rescind, if unable or unwilling to comply with some requisition, on which the purchaser insists (d). This is a stipulation which it is generally essential for the vendor to make. But as it is no part of an open contract and is entirely one-sided, the purchaser ought to make its acceptance a ground of securing some advantage for himself. And if he admit it, he should stipulate that it be qualified by providing that the right of rescission should only arise if the vendor have some reasonable ground, as the expense, for declining to comply with the requisition (e). He should also take care that the terms of the stipulation give him the alternative of withdrawing the unwelcome requisition (f).