140-NLR-NLR-V-22-ISMAIL-et-al.-v.-ISMAIL.pdf
( 476 )
1921.
Present: Bertram C.J. and Ennis J.
ISMAIL et <d. v. ISMAIL.
325—D. G. TangaUa, 1,824.
Prescription—Action for specific performance—Breach of contractsStarting point of period of prescription—Demand and refusal.
When the time for the performance of an obligation is fixed sothat the-e can be a definite starting point for the running of theperiod of prescription, the breach of contract occurs when theperformance does not take place within the time so fixed. Butwhen there is no fixed date for the performance, but there is onlyan obligation to do any act within a reasonable interval after agiven date, there is no breach, unless there is a refusal either ondemand or otherwise to perform the obligation, or unless the personliable has in some way disabled himself from performing thecontract.
r pHE facts appear from the judgment.
E. W. Jayawardene, for defendant, appellant.
Drieberg, K.G. (with him Keuneman); for plaintiffs, respondent.
July 19, 1921. Bertram C.J.—
The question which we have to decide in this case is one on whichthere appears to be a dearth, of authority. Briefly stated, thatquestion is, in the case of an action, for specific performance, fromwhat date does the period of prescription run. It has been settledby the case of Emis v. Sango1 that the period of prescription in thecase of an agreement to transfer land is governed by section 7 ofthe Prescription Ordinance, and that, consequently, the claim isprescribed on the expiration of six years, but the question is fromwhat precise point does that period start. The facts in the presentcase are asfollows. The defendant agreed with the two plaintiffs forthe execution of certain improvements on some land belonging tohim for the purpose of the manufacture of citronella oil. Upon theexecution of these improvements, and upon the expiration of a periodof two years, during which one of the plaintiffs was to recoup himselffor all expenses which he had incurred, there was an obligation onthe part of the defendant. That obligation is as follows : “ Thatafter the said necessary matters shall have been perfected duringthe given period as aforesaid, and also after the recouping of theexpenses incurred therefor by the second part within the given period,
1 (1H1) 1 Court of Appeal Cases 66.
( 477 )
the first part shall transfer by means of two conveyances two-thirdparts in equal shares of the said two lands and of all the eitronellaand the boiler thereon unto the seoond and third parts.”
It will be observed that the obligation to execute4>he conveyanceswas to come into effect “ after ” certain necessary matters haclbeen perfected, and “ after ” the recouping of the expenses incurred.Now, there is no doubt that, on the expiration of the period of thetwo years which I have referred to, an obligation to execute theconveyances arose. But, according to section 7, the prescriptiveperiod runs not from the coming into' existence of the obligation,but from the breach of the agreement. The question at whatpoint the breach of any agreement takes place 'must, of course,depend upon the facts of the particular case. In the present casethe obligation was to execute these conveyances “ after ” certainthings had happened. No fixed date was given for the execution.The question often arises whether a demand and the refusal of ademand is necessary to constitute a breach of a contract for thepurpose of initiating the period of prescription. The learned Judgeexpressed the opinion that in this case a demand was necessary.There is surprisingly little authority on the question, but this,I think, we may affirm. For every period of prescription theremust be a definite starting point. Sometimes a definite date isfixed upon it for the purpose of an obligation; sometimes it isnot. In the latter case, it is sometimes said that there must be aperformance within a reasonable time, but the expiration of such areasonable time would clearly be altogether too indefinite a pointas a starting point for prescription. As we have no definite authorityon the point, the case is one of first impression, and on carefulconsideration I would suggest that the following principles may beapplied to the question. When the time for the performance of anobligation is fixed so that there can be a definite starting point forthe running of the period of prescription, the . breach may well, inordinary circumstances, be considered as occurring when the per-formance does not take place within the time so fixed. But whenthere is no fixed date for the performance, but there is only anobligation to do any act within a reasonable interval after a givendate, there cannot be said to be a breach, unless there has been arefusal either on demand or otherwise to perform the obligation, orunless the person liable has in some way disabled himself fromperforming the contract. Now in this case there certainly was norefusal either bn demand or Oonerwise. There was a delay, areasonable delay, which appears'to have been due to all partiescontemplating that the title of the defendant which was at the timedefective would be perfected by the obtaining of.a Crown grant.Settlement proceedings were at the ^time in progress, and it wasunderstood that when these proceedings were concluded, a grantwould be made. Pending the conclusion of those proceedings
1921.
Bertram
C.J.
Ismail v.Ismail
( 478 )
1921.
Bhrtram
CJ.
IemaU v.IerqaU
certain interim arrangements were made. From time to time theplaintiffs asked the defendant to execute the deed. He said hewould .do so when the settlement was concluded, and this wasacquiesced in by the plaintiffs. It is clear, therefore, that there hasbeen no refusal on the part of the defendant to oarry out the agree-ment. Therefore, it seems to me there was no breach until, whenshortly before the commencement of this action, the plaintiffs madea formal demand, and that demand was refused.
In my opinion, therefore, the appeal must be dismissed, withcosts.
Hnkis J.—I agree.
Appeal dismissed.