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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mars Pension Trustees Ltd v County Properties & Developments Ltd & Ors [1998] ScotCS 93 (4 December 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/93.html Cite as: [1998] ScotCS 93

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In this action, the pursuers seek payment by the first defenders of a sum of money which is said to represent arrears of Service Charge contractually due by the first defenders as tenants, to the pursuers as landlords, under a Lease of subjects at the Pollok Centre, Glasgow. The second defenders, to whom the pursuers sold their interest as landlord in 1997, are convened for such interest as they may have as current landlords, and have admitted and adopted the pursuers' articles of condescendence and pleas-in-law.

The Pollok Centre includes a number of separate units, certain of which constitute the subjects of the Lease. In terms of the Lease, a "Service Charge" is payable by the tenants. One of the elements which go to make up the Service Charge is a proportion of the "Common Service Cost", which represents the aggregate expenditure incurred by the landlords in carrying out certain "Common Services" and other expenditure by the landlords in connection with the Centre. The Common Services include a wide range of works, such as maintenance repair and renewal of the main structure of the Centre. The landlords being in right of the whole Centre have let other units to other tenants, apparently on similar terms. It is not suggested that the inclusion of provisions of this type, in commercial leases of units within premises such as the Pollok Centre, is in principle abnormal.

During the latter part of 1995, according to the pursuers' averments, they carried out works of refurbishment and repair on the Pollok Centre. Certain certificates were subsequently issued on their behalf, certifying expenditure incurred by them in 1995 and in 1996, in respect of Common Services. It is not necessary to go into details of computation; but the parties' pleadings, in both the principal action and a counter-claim, reveal two main issues on which the pursuers and the first defenders are at odds. First, there is an issue as to liability for the cost of roof repairs. And secondly, there is an issue as to the finality of certificates such as those I have mentioned. The two issues are quite separate one from the other, and I turn now to the first.

It is not disputed that as a matter of the common law of Scotland, there is a rule applicable to urban tenements to the effect that they shall be put into a habitable or tenantable condition by the landlord at entry. Put somewhat differently, the same rule is described as an implied warranty by the landlord that the subjects are reasonably fit for the purpose for which they are let. Nothing in the present case appears to me to turn on the possibly differing consequences which might flow from different formulations of the rule. It is not disputed that in principle the rule applies to leases of commercial subjects such as the Pollok Centre. It is not disputed that being wind and water tight is or may be an aspect of tenantable condition or reasonable fitness for purpose. And it is not disputed that in relation to the Lease, the implied warranty, if not excluded, would extend not only to the actual subjects of the Lease, but also to the common parts of the Pollok Centre. It is furthermore accepted that such implied warranties at common law can be excluded by agreement.

The first defenders contend that the implied warranty has not been excluded; that as at the date of entry the Centre was not wind and water tight; and that they as tenants are accordingly not liable to contribute to the cost of works which were necessary in order to make the Centre wind and water tight. The pursuers on the other hand, relying on the terms of Clause 12 of the Lease, contend that the implied warranty is excluded by that clause; that they as landlords are accordingly not under any liability to meet the cost of any works by virtue of the implied warranty which would otherwise have been applicable; and that correspondingly, the first defenders are indeed liable to contribute to the cost of works carried out by the landlords falling within the scope of Common Services. The Lord Ordinary has held that Clause 12 does not exclude any warranty of fitness for purpose: he has accordingly held that the first defenders are entitled to inquiry into their averments in relation to the question of whether the Centre was wind and water tight at the date of entry; and has excluded from probation a paragraph contained in the pursuers' averments, to the effect that the landlords expressly excluded any warranty as to suitability or fitness. In reclaiming, the pursuers contend that the Lord Ordinary erred in these respects, should have held that Clause 12 did exclude the warranty, and should have excluded from probation the first defenders' averments on the question of whether the Centre was wind and water tight at the date of entry.

Clause 12 is in the following terms:

Before considering what the clause means if properly construed, and whether it says what has to be said in order to achieve effective exclusion of the implied common law warranty by the landlord, it is necessary to consider a prior, underlying issue: what are the principles governing construction of such a clause, and what sort of thing must be said, if one is to exclude the liability which would flow from the implied common law warranty? It is not of course disputed that a court will generally construe a contractual provision in such a way as to give it effect, rather than no effect. More particularly, this being a commercial contract, the court in construing the contract will endeavour to give it business efficacy. And while ordinary problems of construing the words used by parties will be resolved by the court giving the words used the meaning which it considers the parties intended, the court will in some situations conclude that there is an actual ambiguity, which it may be necessary to resolve by reference to evidence of extraneous matters.

But apart from these quite general propositions, there are many instances of courts saying, in relation to some type or category of provision, that special, more stringent rules of construction apply, or that a particular effect can only be achieved by a provision which meets special, more stringent requirements than are usual. The Lord Ordinary in this case has held that Clause 12 belongs to a category or type of clause which is to be construed "strictly". Before coming to consider his particular decision, however, I find it necessary to approach the question of Clause 12's effect by considering the whole question of unusually stringent rules of construction, or special requirements for efficacy, quite broadly. I should note that I mention requirements for efficacy as well as rules of construction because it seems to me that some observations which have been regarded as rules of construction are perhaps not concerned merely with construing particular provisions, but with stating more positive requirements, if a particular effect is to be achieved. It is also worth bearing in mind that the general rule as to implied terms or provisions is, as counsel for the pursuer pointed out, that "the brocard expressum facit cessare tacitum means that no implied term is admissible directly contradictory of the terms that are expressed": Gloag, Contract page 289.

Taking the matter very broadly, there is no doubt that the courts have been disposed to apply special rules of construction, or to lay down special requirements, where the issue between the parties is whether a particular provision effectively "excludes" rights and obligations which would exist in the absence of that provision; and a similar approach can be seen where "exemption" rather than "exclusion" is the issue, and indeed when a provision leaves substantive rights and obligations untouched, but raises an issue as to whether a party is "indemnified" in respect of some consequential liability. Juridical distinctions can no doubt be drawn between these various types of provision, and indeed between sub-types within them. But it appears to me that the courts have not been concerned primarily with that level of analysis or categorisation: when it has been felt right to impose unusually stringent rules or requirements, the courts have apparently been more concerned with the purpose or aim of the clause, than with the particular route adopted. It is when a party claims that by one means or another he has avoided obligations or liabilities which he would usually or normally have that the courts have evidently thought it appropriate to approach issues of interpretation at least sceptically, or to go further, and indicate that such avoidance, at least in some contexts, can only be achieved by provisions of some particular type. While I think that the general approach of the courts can be described in that rather loose way, it is less clear to me whether the different ways in which the additional stringency is expressed reflect genuinely differing requirements, tailored to different situations in which different obligations or liabilities are said to have been avoided. Nor indeed am I sure that the quite wide and general expressions that are used, in relation to types of provisions said to call for such special requirements, are properly applicable to anything beyond the specific and particular type of provision under consideration in the particular case.

A convenient starting point is perhaps an observation of Lord Dunedin's in Pollock and Company v. Macrae 1922 SC (HL) 192 at page 199. After referring to "conditions which amount to a counter-stipulation on the part of the buyer that he will forgo the ordinary remedies which the law gives him in the event of breach of contract", his Lordship says that such conditions to be effectual "must be most clearly and unambiguously expressed, as is always necessary in cases where a well-known common law liability is sought to be avoided". This passage was relied upon by counsel for the first defenders as showing both the breadth of the class of clauses to which the law applies special rules or requirements, and as showing what the special rule or requirement is - to be effectual, they must be "most clearly and unambiguously expressed". Reference was made to other examples of what can be seen as the same requirement. In Redpath Dorman Long Limited v. Cummins Engine Company Limited 1981 S.C. 370, in the opinion of the Lord Justice Clerk at page 374, reference is made to Gilbert-Ash (Northern) Limited v. Modern Engineering (Bristol) Limited 1971 A.C. 689, as having decided that the common law right of retention persists until it is shown "in clear and unequivocal words" that the parties have agreed in the contract that such a right would not be available in respect of breaches of that contract. The Lord Justice Clerk himself invokes Gilbert-Ash as saying that "you consider the terms of the particular contract as a whole" to see whether there are any provisions therein which "either expressly or by necessary implication" write out the common law right. Reliance was also placed on similar language used in Cantors Properties v. Swears and Wells 1978 SC 310 where Lord Cameron, at page 319, in discussing the accidental destruction by fire of the subjects of a lease, expresses the opinion that the law is now settled that "in the absence of express or necessarily implied stipulation to the contrary" such destruction determines the contract. Before the Lord Ordinary, these latter cases were relied upon in support of the first defenders' submission that to exclude the present landlords' common law obligation, it was necessary to use clear language to that effect. And (ignoring the niceties which I have mentioned as between "exclusion", "exemption" and the like) it was that contention which the Lord Ordinary upheld by saying that Clause 12 must be construed as exemption clauses are construed, and that it was settled law that such clauses were to be construed "strictly". For a somewhat similar example of the interrelation between general common law rights and contractual stipulations which may overcome them, one may refer to Babcock Rosyth Defence Limited v. Grootcon (U.K.) Limited 1998 S.L.T. 1143 at page 1150, citing McConnell and Reid v. Smith, 1911 S.C. 635, Lord Dundas at page 638, to the effect that it requires "clear and distinct language" to oust the ordinary jurisdiction of the courts and substitute procedure by way of arbitration. "It is an important matter, and one that must be distinctly expressed, that a man should abandon his normal remedies at law".

According to the authorities thus far noted, it does not appear to me that "strictness" in interpreting a provision of the type in question involves anything more startling than this - that where the general common law imposes an obligation or liability upon one party to a contract, the contract will not be read as excluding that obligation or liability unless it makes it clear, at least by necessary implication, that that was the intention of the parties. I do not myself think that the word "strict" is particularly useful. And if all that is required is that the contract shows this clear intention, that seems to me to be consistent with what is said in Gloag on Contract, to the effect that no implied term is admissible "directly contradictory" of the terms that are expressed. To say that there is no special rule of construction is to my mind going too far: the proposition that the common law rule will prevail unless the contract clearly negates this, or unless there is a direct contradiction, is rather more demanding than our basic rules of construction. And much may depend on the particular context. But while such a rule may be described as special, it does not appear to me in its essence to be a particularly strict one, far less to involve any positive requirement that exclusion or exemption clauses must take particular forms, or describe or list excluded rights individually rather than generically. What is needed is clarity of intention.

It did not appear to me that counsel for the first defenders was asserting any stricter or more special rule or requirement than I have described. But it is appropriate to mention certain other matters, if only to say that I do not think they are in point. First, some contracts fall to be construed contra proferentem. In some of the authorities cited, there seems to me to be a grouping together of situations involving that specific rule with other situations where there is no proferens, but where there may be a need for special rules. At all events, this is not a case in which that rule in its true or limited form has any application. Secondly, counsel for the pursuers and reclaimers drew a distinction between cases such as the present, with an issue as to exclusion of an implied contractual term, and those cases where there is an issue as to whether parties have been exempted from liability for culpa. Treating the latter rather than the former as true "exemption clauses" counsel drew our attention to Evans v. Glasgow District Council 1979 S.L.T. 270. A clause in a lease excluded liability for loss arising by water damage "or from any other cause whatsoever". This was held not to evince a clearly expressed intention that the defenders' liability for their own negligence should be excluded. Some of the expressions of judicial opinion in that case itself, and in other cases there cited such as Smith v. UMB Chrysler (Scotland) Limited 1978 SLT 21, can be read as suggesting that what is required is not merely a contractual provision showing a clear intention to exclude liability for negligence, but a provision which both expressly and specifically identifies that particular form of liability as the subject-matter of exemption. There could of course come a point at which such an approach moved away from principles of interpretation into the field of positive requirements, over and above a provision which was itself perfectly clear. It is not however necessary, in my opinion, to enter into this particular area in any detail. I would however note that Lord Fraser's reference in Smith to the necessity for the use of the word "negligence" or some synonym for it is understood by Lord President Emslie as extending not only to words but also to "a phrase with that specific import", and that Lord Cameron emphasises that the rules in earlier cases "were not intended to provide a bed of Procrustes on which the language of an exemption clause was to be distorted or its meaning cut down". That seems to me to be plainly true: lawyers cannot prune or re-shape words to new senses, or narrow their reference to some unexpressed limits. I express no opinion as to whether there is a more stringent rule for exclusion of liability in negligence than there is in the wider category of exclusion provisions which I have already discussed. But even if in the field of negligence there is a stricter rule, I do not consider that the dicta in cases within that category need be extended to the wider field of exemption or exclusion clauses in general.

Before considering Clause 12 of the present Lease I would mention one further general matter. The Lord Ordinary observes that the implied obligation in respect of tenantable condition and repair is "commonly excluded by an express acceptance by a tenant that the subjects are in a particular condition and repair". His Lordship notes an example of this in a schedule to the present Lease. This illustrates a point which troubles me in relation to the court's apparent concern with the purpose of provisions, rather than their form. I am not persuaded that a provision whereby a tenant accepts that subjects are in good condition is really to be seen as an exclusion of the landlords' obligation to provide subjects which are in good condition. While the purpose may well be the same, the method adopted appears to be that the obligation or warranty is not excluded, but is accepted by the tenant (perhaps quite artificially and without reference to the facts) as duly fulfilled. Given its obvious purpose, I suppose one may consider a clause in these terms as an "exclusion" clause. But my concern is that there is indeed perhaps no true or readily identifiable boundary between clauses which are, and clauses which are not "exclusion" clauses. (It is, incidentally, a familiar enough contractual mechanism to have a general provision which is then qualified by more specific provisos or exemptions: in such situations clarity is no doubt necessary, but I would hesitate before saying that such mechanisms require special rules, rather than simply construction as a whole). In a world which is not black and white, it would be unfortunate for the law to pigeon-hole supposedly separate categories of contractual provision, with rules and requirements dependent upon what may be a wholly impracticable taxonomy. Counsel for the reclaimers relied upon a passage in the opinion of Lord Coulsfield, in G.A. Estates Limited v. Cariafon Ltd. (No. 1) 1993 S.L.T. 1037 at page 1043F to 1044D, to the effect that there must be some special feature, to justify the application of a special rule of construction. I would respectfully agree with that approach; but I would add that it seems to me that while the special feature may be something quite specific, like the deed having been prepared by one perhaps dominant party, the special feature may also be quite a broad one - such as the court not merely having to construe one particular provision, but being faced with reconciling, or deciding between, two competing provisions or rules. That kind of situation seems to me to justify having what can be called a "special rule" to the effect that greater clarity will be required, if one of the competing terms is to prevail, than would be necessary when one is simply interpreting a single provision on its own terms, without some competing alternative. It thus seems to me that in a situation such as the present, with both the general implied term and a provision such as Clause 12 to be considered, a clear intention (but no more) must be found in the latter, if it is to prevail over the former.

I turn to Clause 12. It is clear that the clause is designed to exclude certain types of warranty. Two types of warranty are specified: (i) "that the Leased Subjects or any part thereof are authorised for use under Planning Law for any specific purpose", and (ii) "as to the suitability or fitness of any building or other works comprised in the Leased Subjects or any other part of the Centre". It does not seem to me that any light is thrown on the meaning of the clause by the presence of (i); but it will obviously be necessary to consider (ii). In addition to construing the words of (ii) itself, describing the subject-matter of the kind of warranty that is being talked about, it is necessary to construe the opening words of the clause, telling one what the parties are agreeing in relation to warranties of that described kind. These words ("Nothing, whether contained in this Lease or otherwise, shall be deemed to constitute any warranty by the landlords...") are plainly designed to ensure that there will be no such warranty, at least in some circumstances. The Lord Ordinary has seen the words as prima facie designed to avoid a warranty being treated as brought into existence, rather than to exclude a warranty which exists at common law. The word "constitute" seems to me to suggest something being brought into existence, rather than already existing. (One might add that a provision that nothing shall be "deemed to" constitute a warranty perhaps takes one further in this direction: what is apparently being struck at is not merely something being brought into existence, but something being brought into existence by its being read into, or inferred from, some words not primarily designed to that end). Furthermore, the words "whether contained in this Lease or otherwise" are at least not inconsistent with such a reading. It is easy to envisage a fear that an unintended warranty could be inferred from either the terms of the Lease itself, or, as the Lord Ordinary points out, from an extraneous source such as an extra-contractual representation. If the implied common law term with which we are concerned is indeed to be seen as pre-existing, rather than brought into existence, I can understand the Lord Ordinary's conclusion that the clause fails to reach it with the words used.

However, I am not persuaded that it is possible to see this implied warranty as pre-existing (like, for example, a duty of care flowing from some relationship independent of the contract in question) or as thus distinguishable from warranties implied in other ways. In the ordinary situation where the implied warranty operates, it appears to me that it is brought into existence by the parties signing the lease, and is correctly described as an implied term of that lease. Counsel for the reclaimers was in my view well-founded, in saying that the warranty does not "exist independently of the Lease". It is constituted by the parties signing the lease. While of course other words could have been used to achieve the intended end, it appears to me that the opening words "Nothing, whether contained in this Lease or otherwise..." are clearly intended to be all-embracing, and exhaustive of all possible origins for the contemplated warranty: it was not suggested that the words "or otherwise" were limited - only that they were general rather than particular. I also see the words "deemed to constitute" as clearly intended to be wide, with no intended contrast between that expression and direct constitution: a warranty of the kind in question is not to be held, in any way, to have come into existence.

If one turns one's attention to the descriptive words at the end of the clause, what kind of warranty is being excluded? It is any warranty by the landlords "as to the suitability or fitness" of described subjects. These subjects are initially identified as "any buildings or other works comprised in the Leased Subjects"; and to this description there are added the words "or any other part of the Centre". I see no lack of clarity in the identification of the described subjects (although I think there are two alternative syntactical constructions leading to the same result). If one were looking at the terms of an actual warranty, and all that was said was that the landlord warranted the suitability or fitness of described subjects, without going on to specify that what was meant was suitability or fitness for some identified purpose, it might reasonably be suggested that there was some lack of clarity, which might or might not be overcome by some implication. But this is not a positive, but a negative provision. I see no lack of clarity in excluding "any warranty by the landlords...as to the suitability or fitness" of the described subjects. Warranties as to suitability or fitness can plainly take many forms, narrow or wide, specific or general, concerned with general tenantability or the tenants' own known purposes, or whatever. If one wishes to exclude each and every such warranty, the clearest way of doing so seems to me to be to exclude any warranty by the landlord as to the suitability or fitness of the subjects in question.

Is there then some lack of clarity in the words "suitability or fitness" or some restriction in their scope, so that they do not extend to the subjects being wind and water tight? If the word "fitness" had been used on its own, I do not myself see how it could be read as not covering the state of repair of the subjects. No doubt it could also cover other matters, including those mentioned by the Lord Ordinary of situation, layout or design. But when his Lordship says that while the word might include state of repair, it might equally be concerned "solely" with matters such as situation, layout or design, I do not feel able to agree with him. The word is a generic one. There are various species of fitness. State of repair is one of these. There are other species of fitness. But use of the generic word cannot to my mind refer to them "solely". (The fact that the word "dogs" covers terriers, spaniels and retrievers does not mean that the word "dogs" can be concerned "solely" with these species, and not with collies). It sense covers all, and I see no basis for chopping its reference down in this way, or for seeing it as less than clear. Moreover, the Lord Ordinary expresses the view that the word "fitness" in conjunction with the word "suitability" seems more readily referable in this context to matters such as situation, layout and design than to state of repair. Whether one reads the word "or" as conjunctive or disjunctive, and whether "suitability" and "fitness" are thus being regarded as two separate categories, or as a single category described by using both words, the use of both expressions appears to me to widen rather than narrow what is being described. And while of course it is true, as the Lord Ordinary says, that "if it had been intended that the clause applied to the state of repair of the Leased Subjects or the Centre, it would not have been difficult to say so expressly, one would not expect any sub-type of fitness to be thus specifically mentioned, if what was intended was that any warranty at all as to suitability or fitness should be excluded. (There is no need to mention collies expressly or specifically, if one is concerned to exclude other species of dogs as well, and the word "dogs" is clear). It appears to me that if it had been intended that the clause should apply to some kinds of fitness, and not others, it would not have been difficult, and would have been necessary, to say so expressly.

I would only add that in my view the opening words of Clause 12, and the closing description, should not be construed without regard to one another. The fact that one is concerned with warranties as to suitability or fitness appears to me to confirm, if confirmation were needed, that the intention of the opening words was indeed to avoid bringing into existence, inter alia, the most familiar example of a warranty as to suitability or fitness - the warranty which, unless the parties exclude it, will be implied as a term of their contract, as to the subjects being in a tenantable state of repair. On the whole matter, I am satisfied that even by the higher standards of clarity required to resolve a conflict of this kind, Clause 12 clearly excludes the implied common law warranty. I would allow the reclaiming motion in this respect.

I turn to the separate question of the certificates. Clause 4 of the Lease provides that the tenants are to pay to the landlords the Service Charge specified or referred to in Part IV of a Schedule. Clause 4.1 of the Schedule makes provision for the Service Charge in respect of each accounting period to be paid by quarterly payments in advance on the basis of the landlords' "reasonable estimate" of the Service Charge. Clause 4.2 provides as follows:

Clause 4.3 provides that within 21 days of the tenants' receipt of the certificate, they shall pay to the landlords the amount by which the Service Charge exceeds the payments made under paragraph 4.1. The Schedule contains a number of definitions. These include at Clause 1.22 a definition of "Service Charge" as meaning in respect of any given period the aggregate of a number of items. One of these items, at Clause 1.22.3 is "the fair proportion of the Common Service Cost which is properly attributable to the Leased Subjects as determined by the Landlords from time to time on an equitable basis and notified to the Tenants". The definition of "Common Service Cost" is to the effect that it means the aggregate expenditure incurred by the landlords "in carrying out or procuring the carrying out of the Common Services and any other costs and expenses reasonably and properly incurred by the Landlords in connection with the Centre...".

On behalf of the pursuers and reclaimers, it was accepted that the "fair proportion" determined by the landlords on an equitable basis under Clause 1.22.3 was not immune from challenge. It had to be notified to the tenants, and they could plainly quarrel it. Like anything else which parties agreed was to be fair or equitable, one would start with a figure put forward by one party, and the matter might have to be resolved by arbitration or otherwise. Since that was an element in the Service Charge, finalisation of the Service Charge itself would depend upon finalisation of the element covered by Clause 1.22.3. Nonetheless, it was contended that a Certificate issued under Clause 4.2 was conclusive evidence of the Service Charge save for manifest error. The finality thus achieved under paragraph 4.2 was said to be consistent with the provisions of Clause 1.22.3, since the processes under Clause 4.2 only began after the expiry of the accounting period. There was thus a considerable period, while the quarterly payments based on estimate were being made, for the tenants to question the landlords' estimate of the appropriate figures. Counsel for the pursuers and reclaimers appeared to accept that if the tenant had challenged the landlords' figures, that challenge could survive the issue of the certificate under Clause 4.2. That concession appears not to have been made before the Lord Ordinary. In the years with which this action is concerned, certificates were issued, and no notification was given under Clause 1.22.3, except in so far as one might read such a notification into the certificates themselves.

As the Lord Ordinary says, paragraph 4.2 contains within it reference to the Service Charge "which of necessity involves consideration of that expression as defined in Clause 1.22, including the element described in subclause 1.22.3". And as his Lordship says, although that description occurs in a definition it gives rise in his view to rights and obligations. I agree. It does not appear to me that there can be a valid certificate in terms of Clause 4.2, detailing the Common Service Cost and "confirming" the Service Charge, until there is a Service Charge reached according to paragraph 1.22, notified in terms of Clause 1.22.3, and finalised according to that clause. Only then is there a Service Charge capable of confirmation in terms of Clause 4.2. I cannot read that clause as making a certificate conclusive evidence of an alleged (rather than confirmed) Service Charge, when it is clear that the other clause has not been worked out. The Lord Ordinary says that the pursuers' construction would deprive Clause 1.22.3 of substance and effect. This was criticised, and it may be that it would be better to say that the construction would enable a landlord to deprive the clause of substance and effect (since there would be situations in which it could be operated if the landlord chose to operate it). However, I regard this as a quibble of no consequence. I see no grounds for disturbing the Lord Ordinary's decision upon this matter.

The parties were agreed that before further procedure, the case should be put out by order, to consider what that further procedure should be. I am satisfied that that is the appropriate course.

I have read with admiration and respect your Lordship's excursus regarding the principles of construction where "exclusion" or "exemption" clauses are concerned and, as at present advised, I do not disagree with anything which your Lordship has said on that matter. At the same time I am conscious that there may be a number of authorities which bear on the subject to which we were not referred in the course of the debate and which may require consideration on some future occasion. I also agree unreservedly with your Lordship's and the Lord Ordinary's reasoning in disposing of what your Lordship has termed the "question of the certificates".

As to the central issue in the case, - namely the proper construction of Clause 12 of the Lease in light of the principles discussed by your Lordship, - I confess that my first impression was that the Lord Ordinary was correct in his view that the Clause lacked the clarity necessary to overcome the warranty implied at common law that the subjects of a lease should be in a reasonably habitable or tenantable condition and/or reasonably fit for the purpose for which they are let. However, I do see that issue as being a particularly narrow one and in the end I have been persuaded by the reasoning of your Lordship in the chair that the Clause in question should in this case be read as having the effect contended for by the pursuers and reclaimers.

In the result I respectfully agree with your Lordship in the chair regarding the disposal of both the matters argued before us and I also agree that the case should now be put out by order in order that further procedure may be determined in light of these findings.

I agree entirely with the Opinion of your Lordship in the chair on both aspects of the reclaiming motion and also that the case should now be put out by order. There is nothing I can usefully add.