Tag: although formerly of Strathclyde; he acted in this Glasgow case because the current Sheriff Principal there

Our thanks to Law Commissioner George Gretton who spotted Coranta Corporation Ltd v Morse Business Applications Ltd, a decision of Sheriff Principal Bowen in Glasgow Sheriff Court dated 11 July 2007, and drew it to our attention.  The case, which deals with implied terms and conditions in an agreement for the purchase of a business, is especially notable for the discussion by both parties in argument of the doctrines on conditions expounded in the treatise on Obligations (1761) by the eighteenth-century French jurist Robert Pothier, whose work was translated into English and first published in Britain in 1806.  (For more on Pothier see http://www.newadvent.org/cathen/12321a.htm).  The essential issue was the scope of the rule stated by Pothier, that a condition may be deemed fulfilled when the person obliged under it has prevented its accomplishment.  This statement of Pothier was discussed in previous Scots authorities such as Pirie v Pirie (1873) 11 M 941 and Gloag on Contract (2nd edn, 1929), p 277.  In a careful and learned judgement Sheriff Principal Bowen held that the requirements of the rule were not met on the particular facts of the case, and also that a term could not be implied.  The authorities canvassed by the parties also included two Scots Law Times articles on potestative conditions” in which Professor John Murray QC (Lord Dervaird) and Alan Rodger QC (now Lord Rodger of Earlsferry) disagreed over the proper approach to the subject (see 1991 SLT (News) 185