Have I screwed up my defense?

[charitynjw]

Another way of looking at it is that the 2nd offer was for a new contract, this time the 'buyer' is offering & the 'seller' is free to accept or reject the new deal.

[OhNo]

Was there in fact really an issue with the drains, or was it just a ploy?

Obviously I'm biased but I had believed all along this was a ploy but I don't know how my evidence would stack up. It is:

• He is an experienced property developer who has said in one of the critical three emails that he was experiencing an issue just like this on another site.
• He and his tradesmen would certainly have noticed the several manholes on the site including one outside the front and back doors.
• He visited several times with tradesmen and his architect before making the offer and paying the deposit.
• Some months prior to this, he made an offer almost exactly the same amount as the accepted offer minus the 25K (actually on checking it was 20K sorry).
• I have checked with other property developers who I found via another forum and they say checking drainage is one of the most important and obvious things to do when demolishing a house and building new developments.
• The amount whilst high to me was tiny in comparison to his expected GDV which was well into seven figures.
• Finally, he ended up offering me the full amount.

When I first read your and des8 post, I really thought "Great!!! Someone can see this from my side. What a relief !" but I do realise its not like that at all. My understanding is you all have legal experience and are giving up your time to help others which is fantastic. It also puts me in a very difficult position. Firstly, because it is quite painful reading the legal arguments to and fro. And secondly because it makes it harder to decide what to do.

In reply to Amethyst _if_ it does go all the way my understanding is if I pay in full within a week I won't have a CCJ against me ? If it went to a hearing and the judge found against me, I have not spent the deposit and so would return it with the extra fees and interest as required.

Finally, if you think it makes a difference or indeed is critical I am happy to release the 3 emails redacted but would it be possible to send them only to those that have (very kindly) shown an interest in my case? Once this is all behind me, I would be ok I think with them going into this thread.

[charitynjw]

Hyde v Wrench (1840) 49 ER 132 Chancery Division (Decided by Lord Langdale MR)

The defendant offered to sell a farm to the claimant for £1,000. The claimant in reply offered £950 which the defendant refused. The claimant then sought to accept the original offer of £1,000. The defendant refused to sell to the claimant and the claimant brought an action for specific performance.

Held:

There was no contract. Where a counter offer is made this destroys the original offer so that it is no longer open to the offeree to accept.

[OhNo]

Hyde v Wrench (1840) 49 ER 132 Chancery Division (Decided by Lord Langdale MR)

The defendant offered to sell a farm to the claimant for £1,000. The claimant in reply offered £950 which the defendant refused. The claimant then sought to accept the original offer of £1,000. The defendant refused to sell to the claimant and the claimant brought an action for specific performance.

Held:

There was no contract. Where a counter offer is made this destroys the original offer so that it is no longer open to the offeree to accept.

Is that good or bad? Excuse my ignorance (I probably shouldn't be going anywhere near a court or if I do I should take my last shirt....!)

EDIT: Hmm on second reading that's maybe good for me ?? 8-)))

[charitynjw]

Is that good or bad? Excuse my ignorance (I probably shouldn't be going anywhere near a court or if I do I should take my last shirt....!)

EDIT: Hmm on second reading that's maybe good for me ?? 8-)))

I reckon so, but it's only my 'umble opinion!

[OhNo]

I reckon so, but it's only my 'umble opinion!

Woohoooo!!

[OhNo]

Hyde v Wrench (1840) 49 ER 132 Chancery Division (Decided by Lord Langdale MR)

The defendant offered to sell a farm to the claimant for £1,000. The claimant in reply offered £950 which the defendant refused. The claimant then sought to accept the original offer of £1,000. The defendant refused to sell to the claimant and the claimant brought an action for specific performance.

Held:

There was no contract. Where a counter offer is made this destroys the original offer so that it is no longer open to the offeree to accept.

Hmm reading this for the 20th time (I did say I'm a bit thick) doesn't this just mean it was the _offer_ that was replaced. There was never any contract in place. Whereas in my case, there was a contract because I had accepted their offer. They then made another offer and made clear they would only proceed with that second offer but did that breach the contract already made?

Common sense seems to suggest a further offer when a contract is already in place should have an effect on that contract (e.g. to invalidate it) but from what I'm reading the law is more about technical detail than what a reasonable person might consider just (unfortunately).

[R0b]

I don't think there is an issue as to whether there is a contract or not, it's clear there wasn't, but the crux of it all is whether the reduced offer amounts to 'breaking the chain of sale' so as to enable the claimant to recover their deposit. I guess the only way of finding out is to see it through to court if you fancy your chances and let a judge decide.

[des8]

Just as an aside, IMO at least, that "agreement" is very poorly worded.
How pray, does making the offer "subject to the usual conveyancy." improve the standard "subject to contract."

Then that first point: . "If & Sons Ltd break the chain of sale at any point the holding deposit will then become non-refundable" is an absolute. Nowhere does it say "with the exception of the usual conveyancy". So subject to contract or anything else not withstanding, that deposit is non refundable if buyer withdraws

Point three purports to allow the holding deposit to be reviewed (but doesn't state by whom). It goes on to state the buyer could "request" return of deposit, which of course allows the seller to decline the request!

[R0b]

Agreed, it is very poorly drafted and at the very least ought to have defined what is meant by breaking chain of sale; that job is up to a judge.

Just worth pointing out what you mentioned Des, referring to the buyer withdrawing, but I do not see a reduction in price as an explicit withdrawal. To withdraw from something, you are in effect putting an end/stop/discontinuing something or removing yourself - does a counter-offer fall within that bracket? I should think not.

Suppose we can go round in circles analysing the different arguments, but it is up to ohno to decide what is best; one thing we can all at least agree on is that it is not clear cut.

[OhNo]

Just worth pointing out what you mentioned Des, referring to the buyer withdrawing, but I do not see a reduction in price as an explicit withdrawal.
.

Would that not mean that I could have informed the claimant and made it very clear indeed to him that I would only accept £10 million (or some ridiculous amount) for the property and when he refused I could claim he had withdrawn and thus hold on to the deposit?

[R0b]

In theory yes, but that would be a clear obfuscation of the intention between the parties and the courts would clearly see through that. Again, it comes down to what did the parties intend that expression to mean.

[OhNo]

In theory yes, but that would be a clear obfuscation of the intention between the parties and the courts would clearly see through that. Again, it comes down to what did the parties intend that expression to mean.

That's very interesting and I'm truly grateful for your thoughts even though it does make it very difficult for me to decide whether to proceed or not.

It was explained to me that the purpose of the contract was to give both sides certainty. It would give them certainty that we wouldn't "gazump" them and sell to a higher bidder (of which there were several at the time) and it would give me certainty that they wouldn't "gazunder" us and would indeed buy the house (but not for £20,000 or any other material amount less !!)

Regarding the expression "chain of sale", does it not come down then to what a "reasonable" person might conclude it means? If so, surely most people know what a housing chain is? I'm not intending to supply a proper definition since I'm obviously not qualified but isn't it something like a chain of dependent agreements of which my agreement with the claimant was one?

[Amethyst]

Full payment within 28 days from judgment to avoid the ccj being on the register and credit file for 6 years. There could be additional costs if it goes to hearing - it's small claims so should be limited unless court finds one party has acted unreasonably.

[charitynjw]

Just a quickie...a consumer credit 'agreement' is most definitely a contract.

If it looks like a duck, & quacks like a duck...........