Error in commercial bargains – can you undo that which has been done?
13 February 2013
Lord Malcolm has reviewed the complex question of error as a ground for reduction of contractual bargains in the case of Wills v Strategic Procurement. An action in Aberdeen Sheriff Court was compromised on the basis, according to the pursuer’s averments, of an intention to litigate the same issue in the High Court in London. Parties agreed to absolvitor in the Sheriff Court, an agreement which the pursuer contends was the result of his solicitor failing to appreciate that absolvitor would found a plea of res judicata in the English action. The pursuer thus seeks reduction of the decree of absolvitor, arguing that his solicitor’s error was known to, and take advantage of by, the defenders’ solicitors. The defenders argued that the claim was irrelevant and should be dismissed. In his Opinion, Lord Malcolm considers the history of the law of error in contract, and decided that the case would be suitable for proof before answer. In so doing, he held that Steuart's Trustees v Hart (1875) 3R 192, which Lord Marnoch had previously held to have been implicitly overruled by subsequent decisions of the House of Lords, remains good law.
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