Mackay v Campbell

Factual and Procedural Background

The Respondent (pursuer) raised an action seeking specific implement of missives of sale for certain heritable subjects. In the alternative, the Respondent sought damages of £10,000 plus interest. The Appellant (defender), aged 64, had signed the missives shortly after sustaining a leg injury that required hospitalisation and surgery. He later asserted that, because of his physical condition and a mistaken belief that his prognosis was grave, he was “weak and facile” and had been induced to contract under unfair circumstances.

At first instance, Judge Cameron granted decree for specific implement. The Appellant reclaimed to the Second Division. Before that hearing, the Appellant lodged a minute consenting to decree for the alternative monetary conclusion. The Respondent nonetheless continued to insist on specific implement. The Second Division repelled the Appellant’s plea to competency, rejected his substantive defences, and authorised the Clerk of Court to sign a disposition on the Appellant’s behalf after his counsel stated he would never voluntarily convey the subjects. The Appellant appealed to the final appellate court, challenging (1) the competency of the action after his consent to the monetary alternative and (2) the relevancy of his own averments seeking to reduce the missives on the grounds of facility and circumvention.

Legal Issues Presented

1. Whether the Respondent forfeited the right to pursue specific implement once the Appellant consented to decree for the alternative monetary conclusion, thereby rendering the action incompetent.
2. Whether the Appellant’s pleaded case—alleging facility, circumvention, and lesion—was relevantly averred so as to justify setting aside the missives of sale ope exceptionis.

Arguments of the Parties

Appellant's Arguments

• The lodging of the minute consenting to the alternative monetary decree terminated any live dispute; the Respondent could thereafter obtain only damages, making the ongoing claim for implement incompetent.
• The missives were procured when the Appellant was in a state of “weakness and facility,” had been misled about his legal position, and suffered lesion (the property’s true value exceeded the price by at least 50 %). Accordingly, the contract should be reduced and he should be assoilzied.

Respondent's Position

• The pleadings, read as a whole, made clear that damages were sought only if specific implement were refused; therefore, the competency argument was unsound.
• The Appellant’s averments of facility and circumvention were insufficiently specific and disclosed no relevant case of fraud or deceit.

Table of Precedents Cited

Court's Reasoning and Analysis

Competency. The court read the pleadings as providing that damages were sought only if specific implement were refused. Therefore, the Appellant could not unilaterally elect the damages alternative and thereby defeat the Respondent’s principal claim. The Second Division had correctly repelled the competency plea.

Relevancy of Reduction Defence. The court analysed the three inter-related elements required for reduction on the ground of facility and circumvention:

• Lesion. Adequately averred; not disputed that the price was at least 50 % below value.
• Facility. The pleadings merely alleged a “weak and facile state of mind” without specifying any irrational beliefs or medical condition affecting judgment. These averments were regarded as weak.
• Circumvention. No facts were pled from which deceit could be inferred. There was no allegation that the Respondent or his solicitor knew the preliminary document was non-binding yet represented otherwise. The narrative was consistent with honest conduct. Without concrete averments of fraud, the defence was irrelevant.

The court emphasised that, unlike cases involving deceased or incapax granters, the living Appellant bore the burden of detailing circumstances of deceit. Absent such averments, allowing proof would unfairly expose the Respondent to surprise allegations of dishonesty.

Holding and Implications

Holding: DISMISSED. The appeal was dismissed; the decree for specific implement, including the order authorising the Clerk of Court to sign a disposition on the Appellant’s behalf, stands.

Implications: The decision binds the parties: the property will be conveyed to the Respondent, and the Appellant’s challenge is at an end. The judgment does not establish new doctrine but re-affirms that a party alleging facility and circumvention must plead concrete facts of deceit when competent to do so.