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LORD MARNOCH'S OPINION.—In this action the pursuers seek recovery of a 10 per cent deposit which they paid following a successful bid for certain heritable property in Glasgow at an auction held in London on or about 14th February 1989. The deposit in question amounted to £165,000.
Parties are agreed that the purchase was governed by the articles of roup which incorporated certain general conditions of sale of which cond. 6 provides inter alia as follows:
The only other part of the contractual documents which, in my opinion, is directly relevant for present purposes is cond. 9 of which the first sentence reads as follows:
Such payment is then stated to be "of the essence of the contract" and it is expressly provided that delay in excess of ten days will entitle the Vendor to "resile" from the bargain.
From the above it will be seen that nothing was said in the contract documents as to what would happen to the deposit in the event that, for one reason or another, the sale failed to materialise. In the present case the sale did fail to materialise in that the defenders aver that they "resiled" from the contract following material breach on the part of the pursuers in failing to pay the balance of the purchase price within the period specified. There is, however, no averment of any loss having been sustained as a result.
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