Cairncross v Lorimer 1860 3 L.T. 129 – 299., HOL

Citation:Cairncross v Lorimer 1860 3 L.T. 129 – 299., HOL

Rule of thumb: If a person gives their word/consent they will say or do something, but does not put it in writing, are they bound by it? Do all contracts have to be put in writing or can they be formed orally? It is a fundamental part of the law of contract that if people say, do or write that they will do certain things, then they are to be held to this legally – it is a very important building block of any effective commercial system that people can trust the word of others.

Judgment:

The Court affirmed that personal bar is a universal concept that means that people should be allowed to rely on the word or conduct of other people and hold them to this - this is the basic spirit of the principle of personal bar,

Ratio-decidendi:

‘to be found in, I believe, in the laws of all civilised nations, that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, - he cannot question the legality of the act he had so sanctioned, - to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct ... I am of opinion that, generally speaking, if a party having an interest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice, than he would have had if it had been done by his previous licence’, Lord Chancellor Campbell at 827-829, ‘I am of opinion that this action has not been raised by parties who took in time their stand against the union in question with the Free Church, and constantly [consistently - 29 Scottish Jurist 611 at p. 615] and bona fide followed out, debito tempore, their opposition.... I look simply to the facts in this case. Now, first, the union was carried through the session without dissent; and again through the congregation without division. Then, when the union was thus consummated, it became clearly necessary for parties meaning to oppose, if not already too late, instantly to take their ground in a distinct and decided manner, so as to raise the issue or contest between them and the majority of the congregation. Now, I think it very clear that such an issue was not tempestive raised and insisted in by any of the pursuers. Looking to the straggling facts exhibited in the proof as to each of the pursuers, it is to me very clear that the action is an afterthought, got up at last by the success of their advisers in other cases, and was not bona fide begun, announced, and carried on by proper dissenters, entitled to follow out their original opposition, and who had, debito tempore, begun and recorded their opposition so as to make the property of the church a disputed litigated question from the time when the union was proposed, or as soon after as could be. The union, in my opinion, passed, and stood without any real challenge for three years - not disturbed or interfered with, and with possession, openly and exclusively in terms of the union - in public assertion of the competency of this union - without any interruption or challenge. On the facts exhibited in the proof, I am of opinion that, originally, there was really no distinct opposition, and the change took place and endured without any opposition, and now cannot be disturbed by these pursuers. I think judgment ought to be pronounced sustaining the second plea in law for the defenders, so as to protect the defenders from molestation ... I am rather anxious to state that I avoid any general ground. I think it is not necessary to prove concurrence on the part of the pursuers in the proceedings now challenged. My opinion is founded on something of a more negative character. The defect in the pursuers' case is, that no step was taken, debito tempore, to challenge the union." Lord Justice Clerk Inglis At 1001-1005.

'in the law of all civilised nations ... if a man, either by words or conduct ... consents to an act ... he cannot question the legality of the act he so sanctioned', Lord Campbell, 152.

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.