Mackay v Campbell

A party seeking reduction of a transaction on the ground of facility and circumvention must establish weakness and facility, circumvention and lesion. These matters are interrelated and must be assessed together. Strength in one may compensate for weakness in another.

A bare assertion of a weak and facile state of mind is insufficient. Where the allegedly injured party is alive and capable of giving evidence, facts and circumstances capable of supporting an inference of deceit or fraud must be specifically averred. Allegations equally consistent with honesty do not suffice.

The appellant agreed by missives to sell two islands, livestock and moveable property to the respondent for £16,000, but failed to deliver a valid disposition. The respondent obtained decree for implement. The Second Division rejected the appellant's challenge to the competency of the action and held his averments seeking reduction of the missives ope exceptionis irrelevant. It ordered the Clerk of Court to execute the disposition because the appellant had stated that he would never do so.

The appellant appealed to the House of Lords. The principal issue was whether his averments of weakness and facility, circumvention and lesion were sufficient to permit proof that the missives had been improperly obtained.

1. Appeal dismissed unanimously. Lord Guest delivered the substantive speech. Lord Reid and Lord Pearson agreed.

2. Per Lord Guest, the appellant's consent to decree under the monetary conclusion did not render the action for implement incompetent. The summons and pleadings showed that implement was the primary remedy and damages were sought only if implement was not granted. The appellant could not select the alternative remedy and thereby deprive the respondent of the primary conclusion. The Second Division correctly repelled the competency plea.

3. Per Lord Guest, weakness and facility, circumvention and lesion are interrelated matters. They must be assessed as a whole rather than in separate compartments. Strong averments concerning one matter may compensate for weaker averments concerning another.

4. The averments of lesion were relevant because the property was said to be worth at least 50 per cent more than the contractual price. The averments of facility, however, lacked specification. A bare assertion that the appellant was weak and facile was insufficient. His mistaken fears about his injury were not averred to be so irrational that they impaired his judgment, and no mental decay was alleged.

5. Circumvention denotes fraud or deceit. Lord Guest accepted that specific circumvention may sometimes be inferred where a deceased or incapable person was weak or facile and a deed benefited its impetrator or the impetrator's relatives. The present case was different because the appellant was alive and a party to the action. He therefore had to aver facts and circumstances from which circumvention could be inferred.

6. The pleadings disclosed no facts suggesting dishonesty by the respondent or his solicitor. In particular, they did not allege that either knew the earlier document was non-binding but deliberately represented otherwise. Since the pleaded facts were consistent with honesty, they could not support proof of fraud or circumvention. The Second Division therefore correctly held the averments irrelevant and its decree stood.

1. House of Lords: Dismissed the appellant's appeal and affirmed the Second Division's decision.
2. Second Division of the Court of Session: Repelled the competency challenge, held the averments of reduction irrelevant and ordered the Clerk of Court to execute a valid disposition on the appellant's behalf.
3. Lord Ordinary: Granted decree under the conclusions seeking declarator of non-implementation and delivery of a valid disposition.