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Scottish Court of Session Decisions >>
Brown v Wright. [1623] Mor 457 (5 July 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor0100457-001.html Cite as:
[1623] Mor 457
A man giving bond to pay a sum at a term, and in case of failzie, to infeft the creditor in certain lands; this is no alternative, so as to give the election to the debtor. Such clauses to be interpreted in favour of creditors, which is an exception from the general rule.
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John Brown by his obligation, having bound him to pay to Thomas Wright 1200 merks, at a term contained in the bond; and, in case of failzie at the said term, to infeft the laid Thomas in certain of the said John's lands, express in the said bond; the said John being charged to pay the said Thomas Wright that sum, suspends upon that clause contained in the bond, whereby he is not simply obliged to pay that sum, but in case of failzie at the said term appointed for payment, he is only holden by the bond to give the creditor infeftment of his land; which he was content to do, and to give him with the infeftment, possession of the land, which being done by him, must import satisfaction of the bond, seeing by the clause foresaid, he that is debtor hath the election, either to pay the sum, or to give the infeftment; and he being willing to give the infeftment, the creditor cannot urge him farther. The Lords found this reason not relevant; and that in this bond, and in all others of the like nature, the creditor had the election, either to seek the money, or the fulfilling of that which was adjected to the not payment thereof at the term, in case of failzie. For the LORDS found these clauses not to be alternative, whereof the election ought to be conferred to the option of the debtor, but were clauses introduced in favours of the creditors, which ought not to derogate from the force of that which was deduced principally in the obligation.
