DamageS - Contract for sale of land - Breach - Governor's consent

refused - Whether purchaser entitled to reoover damages in addition

 to. return. of deposit -. Time.for .es.t.imating. dama:eys. .

Land law.- Sale of land.•• Contract therefor- Breach - Governor's.
consent refused -.Whether purchaser entitl~ to recover dam~s
in addition to return of deposit - Time for estimating damageS.

1. Where a contract for the sale of . land is nct carried out
   because the. Governor refuses to give his consent undee ·the
   Natives Disposition of Lands.Restriction Ordinanoe 1918, ;he
   purchaser is entitled to recovar his deposit, but not to an
   award of damages, unless the vendor has effective~ assisted
   in procuring the refusal of consent.
2. The time for estimating damages for br,eaoh of a contract for
   the sale of land is the time of breach and not the time when
   suit is brought.

Natives Disposition of Lands Restriction Ordinanoe 1918, s.5.

In re Daniel, (1917) 2 Ch.4ll.

Revision.

19;;~ l. ;lQ'- ,-;1;:942, -.tl.unllilf.8\ J~:.Aluaod El Hurri, a very old man, agreed

to sell a plot of land to the Adad Abdel r'1agid for LE.35. and received

LE.2,.o:f' .the price, the remaining LE.lO being payable when registrati~
,.,ras oompleted. But it was not completed, as the District Commissioner,
re:f'used to give.his consent to the sale under the Natives ~isposition

o:f' Lands Restriction Ordinance 1918. In this suit the purchasers claimed

* Court t Flaxman, C.J. and Cumings, J.

return of the LE.25, and damages in addition for the loss of their bargain.
After the suit uas allowed, the defendant paid the LE.25 into court,

and thereafter he merely resisted the claim to damages in excess of

that sum. As the LE.25 lias obviously paid in good faith, the court by virtue

of seotion 5 of the Ordinance of 1918 "may ••• grant suoh relief by w~
of money damages as in the circumstances appears equitable." As every-

one buying land knows that the transaotion is subject to the consent

of the Governor, it is not equitable, in our opinion, to allow more
than the return of price as damages, unless the vendor, in breach of

his oontrac: to do all he can to give a good title, effectivel~ assis~ed

. to procure the refusal of oonsent by the Governor. In this case we can
find no evidence on Hhioh a finding can be made that the old man, the
vendor, pla;y-ed an effective part in proouring the refusal of the District
Commissioner. The dominant and, so far as the evidenoe goes, the effeotive
part was pI eyed by the son; but the old father cannot be made to PS3
damages for what his son did. His son was not his agent.

But even had it belen proved that the father had caused the refusal

of oonsent, it seems to us that the.damages are too high. ':'he English
rule is that, when damages are peyable for the loss of a bargain in a

sale of land, the time for estimating the damages is the time when the
breaoh.oocurred and the oontract was broken off, so that \-Ihat has to be
considered is the real value of .the property.at. the time when the oontraot
-Ias broken. See in re Daniel 1911 2 eh. 411 J just the same rule as in
the sale of goods and a rule which our courts are constantly enforoing

in such oases. This rule seems to us equitable and right in principle.

To assess the damages by the value when suit is brought would be to allow
the purchaser to await a favourable time for bringing suit, when values'
are high. Moreover, as the breach here occurred only a few days after

the bar-gadn "las made, there could have been no SUbstantial difference
between the value at breach and the value at the agreement, unless the

purchasers had made a very good bargain at the expense of the old man.

As to costs we see no reason for interfering \·lith the deoision of
the Distriot Judge not to allow costs before him; nor shall we allow
the defendant his costs of this appeal, as his conduct after the sale
agreement made it not unreasonable that he should be sued over it.

Flaxman, C.J.: I concur.

Application allo~ied.