Angteeah v Bathfield and others (Mauritius)

Under Mauritian law, an agreement for the sale of land may transfer ownership immediately, but the parties may make the transfer subject to a condition suspensive. Where the condition requires uncertain official authorisation, it is not a terme suspensif. If the condition is not satisfied within a reasonable time, the agreement may lapse without a prior court declaration. A later replacement lease does not satisfy the condition where it confers materially different rights, imposes a different rent or requires an unagreed premium. A substantial contractual variation must also be made with due formality and supported by the parties’ conduct.

The appellant agreed to purchase from the first respondent a property held under a 20-year government lease. The lease required the lessor’s written authorisation before assignment. The authorisation was never obtained. Instead, the government offered the first respondent a new 60-year lease permitting unrestricted assignment, which she later obtained.

The trial judge considered the sale agreement enforceable. The Court of Appeal held that the authorisation requirement was a condition suspensive, that the agreement had lapsed, and that the new lease conferred different rights. The appeal concerned the classification and effect of the condition, the significance of the replacement lease, and whether the parties had agreed a valid variation.

Appeal dismissed. Lord Briggs delivered the Board’s judgment.

1. The general rule under article 1589 of the Mauritian Civil Code is that an agreement for the sale of land operates as a sale where the parties agree on the property and price. That rule is subject to a contrary common intention gathered from the agreement, including an agreement subject to a condition suspensive.
2. The requirement for Ministry authorisation was a condition suspensive, not a terme suspensif. Authorisation was an uncertain future event. A term merely delays performance of an existing obligation and depends on a future certain event. The wording of the Sale Agreement also clearly subordinated transfer of ownership to receipt of the authorisation.
3. Although article 1176 addresses conditions subject to a fixed time, a Mauritian land-sale agreement subject to a condition suspensive contains an implied reasonable-time limit where the relevant time is not expressly provided. Once it is clear that the condition cannot be fulfilled within that time, the agreement lapses. A party need not first obtain a court declaration. The Board treated the decision of the Cour d’Appel of Montpellier, reported at Dalloz (1948), at note 543, as relevant support and applied the principle in Nouvelle Société du Tamarind Falls v Three Feathers Ltd (1977) MR 107.
4. The Court of Appeal was entitled to reconsider the facts after correcting the trial judge’s errors of law. By May 2007, the government’s policy made it clear that consent to assign the existing 20-year lease would not be obtained. The later 60-year lease was materially different in duration, rent and assignment rights, and required a premium which the Sale Agreement did not impose. It therefore neither satisfied nor dispensed with the condition.
5. No agreed variation saved the agreement. The alleged arrangement was oral despite the formality required for a substantial variation, the additional payment and transfer of possession never occurred, and the variation was not pleaded or relied upon below. The remaining procedural points could not affect the result.

1. Privy Council — In [2019] UKPC 23, the appeal was dismissed.
2. Court of Appeal of Mauritius — Held that the authorisation requirement was a condition suspensive, that the Sale Agreement had lapsed, and that the replacement lease conferred different rights.
3. Supreme Court of Mauritius — The trial judge considered that the Sale Agreement remained enforceable after the first respondent obtained a new lease.