(210)  Hohfeld and irritancy in the Court of Session

Per Lord Eassie, in Glasgow City Council v Morrison Developments Ltd 2003 SLT 263, 267:

[19] In my opinion – as canvassed during the discussion of this branch of the argument – while it may be convenient to talk of a landlord’s right to irritate a lease this is perhaps a good example of the dangers of such convenient, but inaccurate, usage described by W N Hohfeld in his collected papers on Fundamental Legal Conceptions as Applied in Judicial Reasoning. Adopting Hohfeld’s well known analysis, imparted latterly to every student of jurisprudence, it is evident, in my view, that the right to irritate a lease has no duty as its jural correlative. Put in other, perhaps simpler, words the service of a notice of irritancy does not create any additional obligation on the tenant. It is the exercise of a possible remedy for a previous breach of contract. If the landlord chooses to exercise that power or privilege, the tenant suffers the loss of his tenancy but he does not thereby incur any duty or obligation. That jural nature of irritancy as a privilege is reflected in earlier 19th century cases such as Lindsay v Hogg (1855) 17D 788 and Bidoulac v Sinclair’s Tr. (1889) 17R 144. However, section 6 of the Act, read with the defining Schedule 1 to the Act, is couched or structured in terms of obligation. Since the power or privilege to the landlord to irritate the lease has no correlative obligation on the part of the tenant, it is, I think, impossible to see how that power or privilege could be brought within the scope of paragraph 1 of Schedule 1 to the Act, even having regard to the provisions of section 15(2) of the Act. It was suggested in the course of the discussion that the power or privilege to irritate might come within the concept of res merae facultatis and thus within the category of a right which was imprescriptible, in terms of Sections 7 and 8 and Schedule 3, head (c) of the Act. I was referred to Mr Johnston’s discussion of that topic at 3.07ff. However, I have reservations as to whether the power to irritate can be seen as being the exercise of a right exercisable as a res merae facultatis. It appears to me that essentially the power to irritate is a remedy for a breach of contract. It may be open to defences of personal bar or waiver, but there is nothing respecting questions of personal bar or waiver arising in the present case, other than the proposition – which I have rejected as unsound – that the obligations upon whose breach the notice of irritancy was founded had been extinguished in terms of Section 6 of the Act.

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