BAKHIT EL SAYED, Plaintiff», MAHMOUD FAWZI ALI, Defendant HC-CS-150-1929
Contract-Acceptance-Whether offer to amend is revocable aiteracceptance-
Contract-:-Impossibility-Whether· condition incapable of performance invalidates
the entire contract
Plaintiff and defendant concluded a contract for the sale of defend-
ant's house. The contract included a condition that it should be regis-
tered before a court. But as this condition could not be performed, de-
fendant proposed that instead of plaintiff's undertaking to put the balance
of the purchase money on deposit, as previously agreed, plaintiff could buy
the house outright or else defendant could register the sale and accept a
mortgage from plaintiff. Plaintiff agreed in a telegraphic reply, but defend-
ant then revoked the agreement. Plaintiff sued for specific performance. /
* Court: Bruce J.
Held: (i) That the original contract was unaffected by the condition
. incapable of performance because the condition was not essential to per-
formance.
(ii) That the rest 'of the contract to which the impossible condition
does not apply was valid.
(iii) That since the original contract was valid apart from the condi-
tion in question, it could be amended and the defendant therefore bound by
his offer to amend which was accepted by the plaintiff.
Action
December 24, 1929. Bruce J.: The plaintiff has produced a
document Which, though only a copy, is admitted by the defendant to
describe the most of the terms of a contract for sale of his house. The
sole omission is said to be the term that plaintiff was intended to
undertake to put the balance of the purchase money on deposit,
which he is both capable and willing to do. The contract cannot,
however, be carried out in its entirety, since it contained-a condition
that it should be registered before it court. This condition is- incapable
of being performed. Since this term is not essential to performance,
the rest can remain valid without it, and the insertion of an impossible.
condition does not invalidate the whole.
On the failure to execute this condition, the defendant made the
proposal that the plaintiff should buy the house outright or that the
defendant should register its sale and should accept a mortgage from
the plaintiff. The plaintiff telegraphed that he agreed.
Therefore in view of the valid existence of an earlier agreement
capable of amendment by the proposal of the defendant, the effect
must be held to be an agreement for' sale subject to a mortgage for
the balance of the purchase money outstanding.
The plaintiff sent a telegram later on November 7th, but since
there is nothing written in it showing an intention to break off the
agreement, the defendant has failed to prove that the plaintiff did
cancel it.
I find therefore that there is a valid contract according to Exhibits
A & C -by which the plaintiff upon paying £E.30 and placing
£E.8;Y.125 m/ms on deposit with a bank has the right to require
the defendant to sell him his house subject to a mortgage for
££':83.125 m/rns repayable within 18 months.
Decree Accordingly