Exclusivity, Authority, and Electronic “Writing” in Land Deals

New clarifications from the High Court of Ireland: (i) mere internal awareness and discussion of a rival bid during an exclusivity period does not breach a standard “lock‑out” clause absent outward engagement; (ii) ostensible authority requires not only a principal-led representation but also reasonable reliance by the counterparty; and (iii) for section 51 Land and Conveyancing Law Reform Act 2009, electronic communications may form a memorandum, but “metadata alone” is not a signature.

Introduction

This commentary examines the High Court of Ireland’s decision in Wachman & Ors v Barne Estate Ltd & Ors [2025] IEHC 491 (Barrett J, 15 September 2025). The dispute arose from an attempted acquisition of the Barne Estate (c. 751 acres, Co. Tipperary) by interests associated with Mr John Magnier (plaintiffs), following a kitchen-table meeting at Coolmore House on 22 August 2023. The plaintiffs asserted (a) a concluded contract for the sale of the lands at €15 million and/or (b) an option to acquire the shares in Barne Estate Ltd for €15 million; alternatively they claimed specific performance, declarations under s.52 of the 2009 Act, and damages. They also alleged breach of a written exclusivity agreement (31 August–30 September 2023). The defendants denied any concluded agreement, contested authority, and relied on the “subject to contract/contract denied” rubric. A competing bidder (Mr Regan) later offered €22.25 million and entered a conditional sale contract in December 2023.

The key issues were: (1) whether a binding oral land-sale agreement or a share option was concluded at the 22 August meeting; (2) whether s.51 (writing) and/or part performance applied; (3) whether any person present had actual or ostensible authority to bind Barne Estate Ltd; (4) whether the alleged agreements were ratified; (5) whether estoppel or warranty of authority arose; and (6) whether the defendants breached the exclusivity agreement.

Summary of the Judgment

• No contract, no option: The Court found as a matter of fact that no oral land-sale agreement and no share option were concluded on 22 August 2023. Material terms (notably a caretaker/holdover arrangement) were unresolved, and the transaction proceeded on a “subject to contract/contract denied” basis.
• Authority: Nobody present for the vendor on 22 August had authority to bind Barne Estate Ltd. Under Jersey law (governing corporate authority for the Jersey company), only the directors could bind; there was no relevant delegation.
• Ratification not established: Ratification requires knowledge of all material facts. The only acceptance evidenced was expressly “subject to contract/contract denied”; nothing broader was ratified.
• Section 51 not engaged; no part performance: Because no oral contract existed, s.51 of the 2009 Act was not engaged. In any event, alleged acts were equally consistent with negotiation. The Appendix clarifies that while electronic communications can satisfy s.51, “metadata alone” is not a signature.
• Estoppel and warranty of authority: Both failed. There was no principal-led representation of authority; reliance would not have been reasonable given the known trust structure and “subject to contract” context.
• Exclusivity: No breach. The exclusivity clause prohibited soliciting, negotiating with, or “entertaining/considering” third‑party offers. Internal awareness and deliberation without outward engagement was not a breach. There is no general duty to negotiate in good faith.
• Outcome: All plaintiff claims refused; the defendants’ undeveloped counterclaim for slander of title dismissed.

Detailed Analysis

1) Precedents Cited and How They Shaped the Decision

• Greenband Investments v Bruton [2009] IEHC 67: Reinforced that the Statute of Frauds (now s.51 of the 2009 Act) addresses enforceability, not existence. The Court adopted this as the starting point: without a demonstrable oral agreement, s.51 does not engage at all.
• Mackie v Wilde (No. 2) [1998] 2 IR 578: Part performance requires a concluded oral contract, with acts referable to performance rather than negotiation. The plaintiffs’ ploughing, booking deposit, and employment offers were deemed consistent with “work in progress,” not performance of a concluded bargain.
• Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm): The Court drew on Gestmin’s cautions about the limits of memory and gave prime weight to contemporaneous documents over reconstructed recollections, particularly given the plaintiffs’ “shifting sands” in sworn accounts following disclosure of phone records.
• Mulhall v Haren [1981] IR 364; Boyle v Lee [1992] 1 IR 555; Jodifern v Fitzgerald [2000] 3 IR 321; ACE Autobody Ltd v Motorpark Ltd [2024] IECA 6: These affirm that “subject to contract/contract denied” is ordinarily inconsistent with a concluded contract. The Court treated the parties’ repeated, contemporaneous use of that formula as determinative of ongoing negotiation (instead of post hoc labels applied after the fact).
• Stapleton v Doran [2019] IESC 19: Emphasized objective intention and agreement on material terms. The Court found no mutual intention to be bound on 22 August and highlighted unresolved material terms.
• Shirley Engineering Ltd v Irish Telecommunications Investments plc [1999] IEHC 204; Embourg Ltd v Tyler Group Ltd [1996] 3 IR 480: Parties may intend to be bound only on signing formal contracts. The informal setting, professional involvement, and contemporaneous “subject to contract” labels pointed to that intention here.
• Mespil Ltd v Capaldi [1986] ILRM 373; Pagnan v Feed Products (1987) 2 Lloyd’s Rep 601: Without consensus on essential and self-identified “material” terms, there is no enforceable contract. The caretaker/holdover terms were material and unresolved.
• Cobbe v Yeoman’s Row [2008] UKHL 55: Commercial actors know oral land agreements are unenforceable by statute unless written; used here to frame the plausibility of intentions in a high-value land transaction.
• Pretoria Energy Co (Chittering) Ltd v Blankney Estates Ltd [2023] EWCA Civ 482: The execution of a “lock‑out” (exclusivity) agreement is hard to reconcile with an already-concluded substantive sale. This underpinned the Court’s finding that the exclusivity recitals were fatal to the plaintiffs’ theory.
• Freeman & Lockyer v Buckhurst Park Properties [1964] 2 QB 480; Kett v Shannon [1987] ILRM 364; Claddagh Jewellers Ltd v Companies Act 2014 [2024] IEHC 319: Authority principles. There must be a principal-led representation of authority. An agent cannot create authority by self-assertion.
• Philipp v Barclays Bank UK plc [2023] UKSC 25: The Court expressly invoked Philipp in the ostensible authority context to require that reliance also be reasonable. Knowing a trustee approval was required and seeing “subject to contract” labels, reliance on ostensible authority was not reasonable here.
• Marme Inversiones 2007 SL v NatWest Markets plc [2019] EWHC 366 (Comm): Ostensible authority turns on the claimant’s contemporaneous understanding, not on post‑discovery internal documents. This undermined the plaintiffs’ reliance on discovered materials.
• O’Connor v Coady [2004] 3 IR 271: On conditional contracts; the Court held the plaintiffs’ theory of a contract “subject to trustee approval” could not bypass the lack of authority and was also incompatible with the universally-used “subject to contract/contract denied.”
• Walford v Miles [1992] 2 AC 128; Triatic Ltd v Cork County Council [2007] 3 IR 57; Flynn v Breccia [2017] IECA 74: No general duty to negotiate in good faith in Irish law. An agreement to agree is unenforceable. This framed the exclusivity analysis and the absence of a duty compelling a sale.
• Brennan v O’Connell [1980] IR 13; Sheridan v Higgins [1971] IR 291: Ratification requires knowledge of material facts. The evidence showed only a subject-to-contract acceptance was ever communicated and understood.
• Appendix authorities on s.51 LRCR Act 2009: The Court canvassed Irish and English authorities confirming that electronic communications can comprise a “note or memorandum,” including typed names and automatic email signatures (e.g., Neocleous v Rees), while making a clear Irish-law statement that metadata alone is not a signature.

2) Legal Reasoning

a) Intention to create legal relations and “subject to contract”

The Court applied an objective test. In a sophisticated, high‑value property sale, with the land held through a trust and a Jersey company, the “subject to contract/contract denied” rubric used throughout, the instruction of solicitors to draft the standard Law Society contract, and the later execution of a formal exclusivity agreement all indicated that any “deal” reached on 22 August was at most “sale agreed” and not a concluded contract. Key terms (notably a caretaker agreement and holdover arrangements) remained open and were treated by both sides as material and still under negotiation into September/October.

b) Authority: actual, ostensible, and ratification

• Actual authority (Jersey law): As Barne Estate Ltd is a Jersey company, Jersey law governed internal authority. Only directors could bind; there was no board delegation authorizing a sale commitment at the kitchen-table meeting. The Court accepted unchallenged foreign-law evidence to that effect.
• Ostensible authority (Irish law): No principal-led representation of authority was made to the plaintiffs. The selling agent had no authority to bind. Importantly, following Philipp, even if a representation existed, the plaintiffs’ reliance would have been unreasonable given the known trust structure, the explicit insistence on trustee approval, and the consistent “subject to contract” framework.
• Ratification: Ratification presupposes that the principal knows the material facts. The contemporaneous record showed that the only acceptance was expressly “subject to contract/contract denied,” and nothing broader (such as a concluded contract or option) was ever ratified.

c) The alleged option

The Court rejected the existence of any share option agreed on 22 August. No contemporaneous record mentioned an option; the first written reference appeared over a month later. Essential terms (price mechanism net of liabilities, duration, exercise mechanics) were never discussed or agreed. Even had there been an outline, it would have been void for uncertainty.

d) Section 51 LRCR Act 2009 and part performance

• Threshold point: s.51 is not engaged absent a concluded oral contract (per Greenband). The Court found none existed.
• Part performance: Cannot create a contract where none was made (Mackie; Greenband). The plaintiffs’ acts were consistent with ongoing negotiations and did not evidence acts referable solely to a concluded bargain.
• Appendix—electronic “writing”: The Court gathered authorities showing that email, WhatsApp, typed names, and auto-signatures can, in principle, satisfy s.51 where authenticity and signature are established. Crucially, the Court stated that “metadata alone” does not amount to a signature—an important Irish-law clarification for the digital age.

e) Estoppel and warranty of authority

Promissory estoppel failed because there was no principal-led representation of authority; the trust approval need and the “subject to contract” posture were explicit; reliance would have been unreasonable. Warranty of authority and negligent misstatement also failed because no representation as to authority was made and no reasonable reliance was shown.

f) Conditional contract theory

The plaintiffs’ alternative theory—an existing contract subject only to trustee approval—failed as a matter of fact (no authority at the meeting; no concluded bargain) and as a matter of law: the persistent, contemporaneous “subject to contract/contract denied” formula is inconsistent with a present, binding contract (conditional or otherwise) pending formal execution.

g) Exclusivity: what “entertain” and “consider” mean

The exclusivity clause prohibited the vendor from soliciting, negotiating with, or “entertaining/considering” other proposals during the period. The Court held that, read in context, those verbs require outward-facing engagement (e.g., inviting, evaluating with the other bidder, or progressing an alternative transaction). Mere internal awareness or market assessment—without outward communication or steps—does not breach such a clause. Offers from the rival bidder were unsolicited; there was no evidence of solicitation, negotiation, or acceptance during exclusivity; and there is no general duty to negotiate in good faith under Irish law. No breach was established.

3) Impact and Significance

• “Subject to contract” still governs: The judgment reinforces longstanding Irish practice: repeated use of “subject to contract/contract denied,” professional involvement, and later execution of a lock-out agreement powerfully rebut claims of a prior concluded bargain.
• Exclusivity drafting and conduct: A significant clarification that internal awareness and deliberation alone are not “entertaining/considering” other offers. Parties seeking broader protection should draft express prohibitions on internal assessment or require specified internal protocols. Conversely, vendors may take comfort that prudent internal risk assessment is permissible absent outward engagement.
• Ostensible authority elevated by reasonableness: The Court’s reliance on Philipp to require reasonable reliance in ostensible authority analysis is an important development in Irish agency law. Sophisticated counterparties, put on notice of trust or corporate approvals, cannot simply “assume” authority in the teeth of “subject to contract” and obvious approval constraints.
• Digital age s.51 guidance: The Appendix’s synthesis of authorities confirms that electronic communications can satisfy s.51 if signed or otherwise authenticated. However, the Court’s express statement that “metadata alone” is not a signature is a notable boundary line for electronic contracting and evidential practice.
• Trusts and cross-border authority: Where Irish assets are held via offshore companies/trustees, actual authority is governed by the company’s governing law (here, Jersey). Purchasers should insist on seeing board resolutions or clear evidence of authority rather than relying on beneficiary or agent statements.
• Litigation practice—Gestmin effect: The Court’s emphasis on contemporaneous documents over memory—especially where affidavits were later revised in response to disclosure—reinforces best practice: create and preserve clear, contemporaneous records; be cautious about sworn evidence that outstrips the documents.

Complex Concepts Simplified

• “Subject to contract/contract denied”: A standard reservation in Irish property deals signaling that nothing is legally binding until the formal contract is signed and exchanged.
• Authority:
  • Actual authority: The agent truly has the power given by the principal (e.g., a board resolution).
  • Ostensible/apparent authority: The principal, by words or conduct, represents that the agent has authority; the counterparty reasonably relies on that representation to their detriment. The agent’s own say-so is not enough.
• Ratification: A principal later adopts an unauthorized act—binding only if the principal knew the material facts and unequivocally assented.
• Part performance: An equitable doctrine allowing enforcement of an unwritten land contract if a concluded oral contract existed and the plaintiff’s acts can only be explained by that contract. It cannot conjure a contract that never existed.
• Section 51 (writing rule): You cannot sue on a land contract unless there is a signed written note or memorandum. Emails and messages can qualify if authenticated and signed (typed names/automatic signatures often suffice), but “metadata alone” will not.
• Exclusivity (lock-out): A promise not to deal with third parties for a period. It is not a duty to sell or a duty to negotiate to completion. Absent express terms, mere internal awareness of another offer does not breach it; outward engagement may.

Practice Pointers

• Get the authority right: In trust/corporate structures, insist on seeing the board resolution (and any trustee consents) before assuming a counterparty can bind the vendor.
• Don’t rely on handshakes in property: In Ireland, “subject to contract” is the norm and will almost always defeat a claim of an earlier binding oral contract.
• Exclusivity clauses—be explicit: If you want to bar the vendor even from internal evaluation of rival bids, say so. Otherwise, courts will likely confine breaches to outward-facing engagement (solicitation, communication, or progression of a rival deal).
• Options must be certain: Set out price/pricing formula, liabilities, duration, and mechanics. Vague references to “keeping an option open” will fail.
• Electronic evidence and s.51: Preserve emails/WhatsApps with identifiable senders and explicit typed names or automatic signatures. Do not assume metadata will suffice as a signature.
• Watch the paper trail: Sales advice notes and exclusivity recitals can be devastating if they contradict a later litigation narrative. Ensure they match your intended legal position.

Conclusion

Wachman v Barne Estate Ltd is a comprehensive reaffirmation—and, in places, a refinement—of Irish contract, agency, and property transaction principles.

• It confirms that in Irish land deals, “subject to contract” means what it says: no binding contract without formal execution, especially where material terms remain open and authority is constrained by trust and corporate structures.
• It clarifies the exclusivity landscape: internal awareness of rival bids, without outward engagement, is not “entertaining” or “considering” an offer and does not breach a standard lock‑out clause.
• It strengthens the ostensible authority test by expressly requiring reasonable reliance, aligning Irish practice with Philipp.
• It modernizes s.51 guidance: electronic communications can satisfy the memorandum requirement, but metadata alone is not a signature.

For practitioners, the judgment underscores the primacy of contemporaneous documents and the importance of precise drafting and disciplined transactional process. For counterparties, it is a cautionary tale: enthusiasm, handshakes, and early access do not substitute for authority, signatures, and completed contracts.