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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V13) 1 CLR 69A
1927 November 16
[BELCHER, C.J., LUCIE-SMITH, J., SERTSIOS, J.]
HUSSEIN ASSAF MANASSO
v.
LAIKA HASSAN HILMI AND OTHERS.
CONTRACT-PROMISE IN WRITING TO MAKE A GIFT PAYMENT UPON FULFILMENT OF A CONDITION-PROMISE REVOCABLE-PAST PERFORMANCE OF A DUTY AS GUARDIAN, NO LEGAL CONSIDERATION-MEJELLE, 1584.
Mejellé, Article 1584:
"An admission dependent on a condition is void. But if it is made dependent on a time which is a good time for a deferred obligation according to the custom of men, it is accounted for an admission of a debt payable in the future."
Defendants (respondents) gave appellant a paper-writing undertaking to pay appellant the value of a share in a house belonging to an absentee coheir of respondents if the absentee heir refused to transfer the said share to appellant on his return to Cyprus.
HELD: That this paper-writing was revocable.
Case referred to:
Michaelides v. Bishop of Paphos, 4 C.L.R., 76.
Appeal of plaintiff from judgment of a District Court.
Behaeddin for appellant (plaintiff).
Chrysafinis for respondents (defendants).
The facts are sufficiently disclosed in the judgment of the Court.
CHIEF JUSTICE: There was ample evidence to support the conclusions on matters of fact arrived at by the learned District Judge and I therefore incorporate these in my judgment. Appellant, uncle and guardian of the five respondents, who with Mehmet owned shares in a chiftlik and house, negotiated the sale of respondents' shares to outsiders and signed the contract of sale as guardian on their behalf. Later on the same day appellant who intended to buy back for himself, or had actually bought, respondents' shares in the house for £100 from the outsiders got the respondents to sign the paper-writing on which he ultimately sued them. Minority and undue influence have been suggested, but neither proved. As to the effect of the paper-writing, as I differ to some extent from the District Judge in the interpreting of it, I give my construction of it which is Either we will get Mehmet's share in the house transferred to you within a reasonable time after he comes back or we will pay you its value." That value is ascertainable. Mehmet came back: for various reasons his share was not transferred to the appellant: the respondents, however, refused to pay appellant the value of the shares: he has sued them, and his action has been dismissed: and now he appeals to this Court. The first question is, "Was this paper-writing binding on the respondents under Turkish law?" I do not think the numerous cases on acknowledgment bear on this case they all deal with present debts, or admissions in customary form, and this is neither. The potential liability under this writing depended upon the fulfilment of a condition, the return of Mehmet, before it could in any case become actual: and as that condition might never have occurred the writing is necessarily invalid as an acknowledgment under Article 1584 of the Mejellé. On the facts as found, and I see (as stated above) no grounds for interfering with those findings of fact, there was no consideration except a past one which involved no more on the part of the appellant than the performance of what was his duty as guardian. It has indeed been said for appellant that his carrying out of his repurchase was, as between him and the outsiders, a condition precedent to the outsiders fulfilling their bargain. But that bargain was not made with him at all, but with his wards, and any, contract with him personally was res inter alios acta so far as the wards were concerned and the outsiders could not escape liability by setting it up. At best then this paper-writing was the promise of a gift, i.e., something to be taken by appellant for nothing given by him in return, and the case of Michaelides v. Bishop of Paphos, C.L.R., Vol. IV., p. 76, lays down the principle that a promise in writing of a gift is revocable before the gift (here, the payment of the value of Mehmet's share) is delivered; and the intention to revoke is here manifest once respondents defended the action. The paper-writing thus being of no legal effect no other question need be considered and I find that the learned District Judge's decision was right. Nor is it clear to me that there has been any unfair advantage taken by the respondents: there was no talk of the repurchase when £1,300 was fixed as the total value of respondents' and Mehmet's shares; and respondents got their due proportion of that sum, and no more.
LUCIE-SMITH, J.: The appellant in this action acting a duly appointed guardian of the defendants sold to certain Christians the hereditary shares of the defendants in certain properties at Pyla. There was another heir, absent from the Colony, and plaintiff apparently undertook to sell his share too, but such a sale was not effected and only a proportionate part of the agreed purchase price was paid.
Amongst the properties sold was a house and yard in which the plaintiff himself had the largest interest and for this reason the Christians were unwilling that it should be included in the sale. The appellant, therefore, agreed in his personal capacity to buy from the Christians the shares of the defendants in such house which he did by transferring to the Christians a field of his in exchange for such shares.
Appellant alleges that such second transaction was done with the knowledge and consent of the defendants and for their benefit. There is no evidence to support this allegation except that of Sotiri and the mukhtar. Sotiri's evidence is useless as he merely tells us what the plaintiff told him, while in my opinion the mukhtar's evidence on the point is inadmissible as being hearsay.
Against this we have the very definite denial of the defendants themselves who were called as witnesses for the plaintiff.
The appellant then having completed his two transactions with the Christians, the one quâ guardian and the other personal, realizes that the absent heir may cause trouble on his return to the Colony and in an endeavour to safeguard himself persuades his wards to sign the document "A."
The learned advocate for the appellant argued that this document provides for two contingencies, viz: (1) refusal by the 6th heir to sell to the Christians, (2) refusal by the 6th heir to sell to the other heirs.
Now it seems quite clear that the 2nd contingency never arose and we must, therefore, confine ourselves to the first.
Did the 6th heir ever refuse to sell to the Christians? Far from it-he not only agreed to sell but agreed to sell at a much lower price than that agreed on Therefore it appears that even supposing the document "A" to be a valid contract, and I express no opinion on this, the plaintiff up to the present has no cause of action as there has been no breach.
For the above reasons and without touching the question of consideration I am of opinion that this appeal must be dismissed with costs.
SERTSIOS, J.: I concur.
Appeal dismissed.