Boyle v Lee

Judgment Date01 January 1992
Date01 January 1992
Docket Number[S.C. No. 259 of 1989]
CourtSupreme Court

Supreme Court

[S.C. No. 259 of 1989]
Boyle v. Lee
Eoin Boyle and Susan Boyle
Maura Lee and Eve Goyns

Cases mentioned in this report:—

Barrett v. Costello (1973) 107 I.L.T. 239.

Black v. Kavanagh (1973) 108 I.L.T.R. 91.

Buttle v. Saunders [1950] 2 All E.R. 193; [1950] W.N. 255; (1950) 66 T.L.R. (Pt. I) 1026; 94 S.J. 369.

Carthy v. O'Neill [1981] I.L.R.M. 443.

Casey v. Irish Intercontinental Bank [1979] I.R. 364; (1979) 114 I.L.T.R. 18.

Chinnock v. The Marchioness of Ely (1865) 4 De G. J. & Sm. 638; 6 New Rep. 1; 12 L.T. 251; 29 J.P. 279; 11 Jur. N.S. 329; 13 W.R. 597; 46 E.R. 1066.

Coleman v. Upcot (1707) 2 Eq. Cas. Abr. 45, pl.9; 5 Vin. Abr. 527 p1.17; 22 E.R. 39.

Daulia v. Four Millbank Nominees [1978] Ch. 231; [1978] 2 W.L.R. 621; [1978] 2 All E.R. 557; (1977) 121 S.J. 851.

Delgado v. Crean (Unreported, High Court, Kenny J., 25th May, 1978).

Goding v. Frazer [1967] 1 W.L.R. 286; [1966] 3 All E.R. 234; (1966) 110 S.J. 870.

Hawkins v. Price [1947] Ch. 645; [1947] 1 All E.R. 689; [1947] L.J.R. 887; (1947) 177 L.T. 108; 91 S.J. 263.

Re Hoyle; Hoyle v. Hoyle [1893] 1 Ch. 84; (1892) 62 L.J. Ch. 182; 67 L.T. 674; 41 W.R. 81; 37 Sol. Jo. 46.

Hydraulic Engineering Co. Ltd. v. McHaffie (1878) 4 Q.B.D. 670; 27 W.R. 221.

Kelly v. Kineen (Unreported, High Court, Mc William J., 29th April, 1980).

Kelly v. Park Hall School [1979] I.R. 340; (1978) 113 I.L.T.R. 9.

Law v. Jones [1974] Ch. 112; [1973] 2 W.L.R. 994; [1973] 2 All E.R. 437; (1973) 117 S.J. 305.

Law v. Roberts (R) & Co. (Ireland) Ltd. [1964] I.R. 292.

Lowis v. Wilson [1949] I.R. 347.

Michael Richards Properties v. St. Saviour's [1975] 3 All E.R. 416.

Mulhall v. Haren [1981] I.R. 364.

Pimms Ltd. v. Tallow Chandlers Co. [1964] 2 Q.B. 547; [1964] 2 W.L.R. 1129; [1964] 2 All E.R. 145; (1964) 108 S.J. 237.

Reuss v. Picksley (1866) L.R. 1 Ex. 342; 4 H. & C. 588; 35 L.J. Exch. 218; 15 L.T. 25; 12 Jur. N.S. 628; 14 W.R. 924.

Rossiter v. Miller (1878) 3 App. Cas. 1124; [1874-80] All E.R. 465; 48 L.J. Ch. 10; 39 L.T. 173; 42 J.P. 804; 26 W.R. 865.

Scott v. Bradley [1971] 1 Ch. 850; [1971] 2 W.L.R. 731; [1971] 1 All E.R. 583; (1970) 115 S.J. 172.

Simpson v. Hughes (1896) 66 L.J. Ch. 143; 75 L.T. 487; 45 W.R. 221; 41 Sol. Jo. 170; affd. (1897) 66 L.J. Ch. 334 C.A.

Thompson v. The King [1920] 2 I.R. 365; [1921] 2 I.R. 438.

Tiverton Estates v. Wearwell Ltd. [1975] Ch. 146; [1974] 2 W.L.R. 176; [1974] 1 All E.R. 209; (1973) 117 S.J. 913.

Winn v. Bull (1877) 7 Ch. D. 29; 47 L.J. Ch. 139; 42 J.P. 230; 26 W.R. 230.

Sale of land - Contract - Formation - Proof - Specific performance - Oral agreement - Absence of specific terms on deposit, tenancies and closing date - Letter from estate agent to vendor's solicitor - Letter stating agreement "subject to contract" - Whether concluded oral agreement - Whether trial judge's findings on oral agreement were inferences from primary facts - Whether absence of specific agreement on deposit, sitting tenants or closing date negatived existence of oral contract - Whether estate agent was agent to bind vendors - Whether oral agreement had been subject to drawing up of formal agreement - Whether sufficient for concluded oral agreement to contain all terms parties deemed essential - Whether the letter a sufficient note or memorandum - Effect of phrase "subject to contract" - Whether necessary for note or memorandum to recognise terms to be enforced and existence of concluded oral contract - Whether there could be exceptions from rule formulated - Whether "subject to contract" invalidated note or memo where such phrase not part of oral contract - Whether total recital of all necessary ingredients can imply existence of completed contract where no acknowledgement - Whether letter failed to comply with statute by being a contract to enter a contract - Relevance of letter not being inter partes - Whether contract comes into existence when oral acceptance of written offer - Statute of Frauds, 1695 (7 Wm. 3, Ir., c. 12), s. 2.

Statute - Interpretation - Sale of land - Meaning of note or memorandum - Duly of courts in interpreting plain statutory provision - Whether phrase of type "subject to contract"negatived existence of sufficient note or memorandum - Whether there could be exceptions to rule - Desirability of certainty in sale of land - Purpose of statute - Statute of Frauds, 1695 (7 Wm. 3, Ir., c. 12), s.2.

Appeal from the High Court.

The plaintiffs issued a plenary summons on the 11th November, 1988, claiming specific performance of an agreement made between the plaintiffs and the defendants for the sale by the defendants to the plaintiffs of the dwelling house and premises situate at 32 Elgin Road in the city of Dublin.

By notice of motion dated the 27th February, 1989, the defendants applied for an order dismissing the plaintiff's claim on the grounds that it was frivolous or vexatious. The High Court (Costello J.) made an order on the 24th April, 1989, inter alia directing that certain issues, which should be agreed between the parties, should be tried in order to determine the motion.

The issues were tried by the High Court (Barrington J.) on the 30th June, 1989, and in an ex tempore judgment it was held inter alia that an oral agreement existed between the parties prior to the 8th July, 1988, for the sale of the premises for £90,000 and that a letter of the 8th July, 1988, from the auctioneers to the plaintiffs' solicitors constituted a sufficient note or memorandum of the oral agreement to satisfy the Statute of Frauds, 1695.

By notice of motion dated the 17th July, 1989, the defendants appealed against the judgment and order of the High Court.

The facts of the case and the relevant statutory provisions have been summarised in the headnote and are set out more fully in the judgments,infra.

The appeal was heard by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaherty and Egan JJ.) on the 13th and 14th November, 1991.

Section 2 of the Statute of Frauds, 1695, provides inter alia that no action shall be brought whereby to charge any person upon any contract of sale of lands unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised.

The first plaintiff, who had experience of purchasing and developing property, alleged that negotiations with regard to the purchase of 32, Elgin Road, Dublin, from the defendants which took place orally between him and Mr. McManus, a member of the staff of a firm of auctioneers, resulted in an agreement for the sale of the property to the plaintiffs for the sum of £90,000. The first plaintiff was prepared to waive any difficulty with regard to the absence of planning permission for the development which had taken place on the premises and was also prepared to accept whatever the nature of the tenancies in the premises were and to buy subject to them. He was willing to pay a deposit but Mr. McManus had said it was a matter to be dealt with between the solicitors at the stage when the formal contract was being drawn up. No specific closing date was mentioned. Mr. McManus had got the express authority of the defendants to accept the figure of £90,000 and the first plaintiff had satisfied himself as to the structural condition of the premises and had arranged finance for the immediate purchase of the premises prior to the 8th July, 1988, when Mr. McManus had written to the defendants' solicitor. The relevant parts of the letter are as follows:—

" . . . I now write to confirm that we have received instructions from the vendors to accept an offer of £90,000 subject to contract. I would be obliged if you would prepare, and forward a contract which should incorporate the following terms.

Proposed Purchasers:

. . .

Proposed Purchase Price:

IR£90,000 subject to contract . . .


The property is being sold subject to, and with the benefits of the tenants.

Closing Date:

As soon as legal formalities can be completed . . .

you will appreciate that this letter is for information purposes only, and does not by itself, constitute part of a binding contract . . ."

Mr. McManus stated in evidence (i) that it was a fixed policy of his firm not to purport to bind any client with regard to the sale of a property by any writing made by a member of the firm and that it was for that reason that he had inserted the phrase "subject to contract" in two places in the letter and (ii) that it was a fixed policy of his firm not to accept or fix the amount of a deposit and that it was for that reason that he informed the first plaintiff that that would have to be arranged between the solicitors.

The defendants did not pursue the sale any further with the plaintiffs and on a trial of the issues in the plaintiffs' action for specific performance it was held by the High Court (Barrington J.) inter alia that:—

  • (a) There was a concluded oral agreement between the parties prior to the 8th July, 1988.

  • (b) There was a sufficient note or memorandum of the oral agreement to satisfy the Act of 1695 contained in the letter of the 8th July, 1988.

The trial judge found that both the first plaintiff and Mr. McManus were honest witnesses. Although he acknowledged that the issue of the sitting tenants had not been clarified with any great particularity, he found that the parties had been in agreement prior to the 8th July, 1988. In relation to Mr. McManus's refusal to accept a deposit and his reference to the fact of solicitors preparing a contract, the trial judge held that he did not succeed in getting his reservation that there was no binding contract until the formal contract had been executed across to the first plaintiff. He also found that the letter of the 8th July, 1988, was consistent with a concluded sale having been agreed, the question of a...

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