Scottish Court of Session Decisions

Subject_1 IMPLIED CONDITION.
Subject_2 SECT. VIII.

Obligations, or Renunciations, granted upon an expectancy disappointed, or upon the supposition of a fund of payment of which the party is afterwards deprived.

Margaret Deans
v.
Andrew Tod and Others

Date: 4 June 1697
Case No. No 45.

In case of a marriage, dissolved before consummation, interventio osculi would save the wife from repetition of a small gift.

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In a concluded cause, Margaret Deans, sister and executrix to John Deans in in Dundee, against Andrew Tod, Helen Constable, and others, for exhibition and delivery of sundry goods pertaining to the defunct, this case occurred to the Lords, upon advising their depositions; that the said John Deans, being in a treaty of marriage with the said Helen, but taking the sickness whereof he died, before consummation, he gifted her on his death-bed his signet-ring, and gave her two bonds extending to 1000 merks; and declared, in case he died before his assignation to her of the same was framed and subscribed, she should detain them till she were paid 1000 merks: And it being alleged, These donations were intuitu matrimonii, which never followed, they became null, and returned; the Lords found she had no right to the bonds; but quoad the ring, if there was interventio osculi, the same, as delibatio quædam pudicitiæ, gave her absolute right thereto. Though the l. 16. C. De donat. ante nupt. allows allenarly repetition of the one half of what is gifted; yet the Lords took not that course here, the gift being mean, and of its own nature indivisible.

Fol. Dic. v. 1. p. 429. Fountainhall, v. 1. p. 773.