Selby v Romeril

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailhache, Bailiff and Jurats Orchard and Gruchy:
• Judgment Date: 11 August 1995
• Date: 11 August 1995

ROYAL COURT

Bailhache, Bailiff and Jurats Orchard and Gruchy:

N.M.C. Santos-Costa for the plaintiffs;

J.D. Kelleher for the defendant.

Case cited:

(1) Vigot v. Barrat, Royal Ct. (1949), 245 Ex. 124, 176; 1941-50 T.D. 39, unreported, applied.

Additional cases cited by counsel:

Alker v. C. Le Masurier Ltd., 1992 JLR 173.

de Carteret v. Applegate, 1985-86 JLR 236.

Le Mire (ne Rennell) v. Le Mire, Royal Ct., April 30th, 1993, unreported.

Osment v. Constable of St. Helier, 1974 J.J. 1.

Sibley v. Berry, C.A., July 7th, 1987, unreported.

Wallis v. Taylor, 1965 J.J. 455.

Wightman v. Cathcart Properties, Ltd., 1970 J.J. 1433.

Legislation construed:

Loi (1846) concernant l'expulsion des locataires rfractaires, art. 3: The relevant terms of this article are set out at page 223, lines 5-12.

Code Civil (France), art. 1108: The relevant terms of this article are set out at page 218, lines 32-37.

Texts cited:

Le Gros, Droit Coutumier de Jersey, at 324-325 (1943).

Nicholas, French Law of Contract, 2nd ed., at 77; at 79 (1992).

Pothier, Trait des Obligations, Part 1, Chapter 1, at 3; para. 53, at 27; para. 137, at 59 (1781 ed.).

Pothier, Trait du Contrat de Louage, Part 2, Chapter 1, paras. 109-110, at 83-84; Part 6, Section 1, para. 363, at 248 (1781 ed).

Contractlaw applicablecommon lawelements of valid contract governed by Jersey common law as interpreted in light of ongoing developmentselements: (a) consent; (b) legal capacity; (c) sufficiently certain objet; and (d) cause

Landlord and Tenantrenewal of tenancyholding overno period stipulated in cotume for tacite rconduction to arisepresumption that rconduction occurs unless lessor brings eviction proceedings as soon as possible under Loi (1946) concernant l'expulsion des locataires rfractaires, art. 3when presumption arises depends on circumstances but almost always after one month of expiry of lease

Landlord and Tenantrepair, fitness and alterationobligations of landlordin absence of contrary agreement, landlord responsible for repairslandlord guarantees against defects ("vices") preventing tenant's use of property, but not defects merely rendering use less convenientlandlord may be liable in damages plus interest, or tenancy agreement discharged, as appropriate

The plaintiffs brought an action against the defendant for his alleged failure to pay the costs of repairs they made to his property and the defendant counterclaimed for unpaid rent.

The plaintiffs leased a dilapidated hotel from the defendant for a specified term, subject to their undertaking certain repair work for which a part of their rent and other payments under the lease would be waived. The written agreement did not specify the precise nature of this work, and it later appeared that more extensive repairs than were originally envisaged would be required. The plaintiffs alleged that they had therefore entered into a collateral contract with the defendant to carry out some of these necessary further repairs, against the costs of which the defendant would indemnify them. The defendant did not pay them fully and although he admitted that he had agreed that some structural work should be carried out, he denied ever authorizing other repairs.

After the termination of the lease, the plaintiffs remained in occupation of the property for several months, continuing to renovate it, during which the defendant initially took no steps to evict them or stop them continuing the repairs. He subsequently did bring eviction proceedings in the Petty Debts Court, alleging that the plaintiffs were in arrears with their rent. The plaintiffs then brought the present proceedings claiming, inter alia, damages for the defendant's failure to pay for the work under the alleged collateral contract. The defendant counterclaimed, inter alia, for payment of the arrears of rent.

The plaintiffs submitted, inter alia, that (a) there was a definite oral agreement between them that the defendant would pay for the extra repairs, which he had failed to do, and in the circumstances he should be compelled to make restitution of the benefit he had received from the plaintiffs' work; (b) since they had remained in the property after the end of the lease, a new tenancy arose by tacite rconduction, the defendant having failed to bring eviction proceedings promptly as required by art. 3 of the Loi (1946) concernant l'expulsion des locataires rfractaires; and (c) because the defendant had failed to meet the obligation imposed on him by customary law to carry out all repairs to the property (in so far as no agreement had been reached to the contrary), it would be wrong to require them to pay as high a level of rent as they should have paid under the lease and indeed, the defendant should pay them damages for his breach of duty.

The defendant submitted in reply, inter alia, that (a) there was no sufficiently certain "objet" or subject-matter for a contract to arise under Jersey law, since the parties had not agreed to the extent of work to be carried out at all; there was accordingly no "cause" or reason for his obligation to pay the plaintiffs and he therefore owed them no money; (b) not only had the plaintiffs failed to make full payment of rent under the lease, but they had also continued to occupy the premises unlawfully after the lease had expired and had accordingly become locataires rfractaires, for which they should pay compensation and there had therefore been no tacite rconduction; and (c) although he was obliged to ensure that there were no defects in the property ("vices") preventing the plaintiffs' enjoyment of it altogether, he was under no obligation to guarantee its freedom from defects which merely rendered that enjoyment less convenient and because they had been able to occupy the premises, the plaintiffs were responsible for the cost of their own repairs.

The court also considered the development of the Jersey common law of contractual obligations and, in particular, whether art. 1108 of the French Code Civil could be used as a guide to its interpretation.

Held, making the following order:

(1) The Jersey common law of contract could not be regarded as fixed but should be interpreted in the light of ongoing developments, e.g. the French Code Civil, which was based upon the cotume. Accordingly, it could now be stated that there were four requirements for the creation of a valid contract in Jersey: (a) the consent of the party undertaking an obligation; (b) his legal capacity to enter into a contract; (c) an "objet," or subject-matter of the contract; and (d) a legitimate "cause," or reason for the obligation to be performed. In the present case, although there had clearly been some agreement as to the work to be performed by the plaintiffs, there had been no agreement as to precisely what the defendant was to pay for. The object of the present obligation was accordingly insufficiently certain to give rise to a valid contract; both this and an uncertain cause rendered any agreement void ab initio and it followed that the defendant should restore the status quo ante by paying for the benefits he had obtained from the plaintiffs' work (page 218, line 21 - page 220, line 33).

(2) The defendant's failure to take steps to evict the plaintiffs earlier gave rise to a tacite rconduction. Although the cotume was silent on the length of time a tenant had to continue to occupy the demised premises for there to be a tacite rconduction, by art. 3 of the Loi (1946) concernant l'expulsion des locataires rfractaires, a summons to evict a tenant had to be brought as soon as possible to avoid the presumption arising that there had been a tacite rconduction. How quickly such a presumption arose depended upon the circumstances of the case, although it would hardly ever fail to have arisen once the tenant had remained in the property for a month after the end of the lease, which had easily been exceeded in the present case. The rconduction took effect at the same rent and on the same conditions as the original lease (page 222, line 15 - page 223, line 31).

(3) Finally, because the plaintiffs had a right to enjoyment of the property, the defendant would be taken to have guaranteed its freedom from defects ("vices") which prevented that enjoyment altogether; but he did not guarantee it against defects which merely rendered their enjoyment less convenient. Such an obligation could require that a landlord pay damages and interest, or that the tenancy be discharged, in appropriate circumstances. In so far as no agreement had been reached to the contrary, the obligation to carry out repairs lay with the defendant as landlord. For these reasons, the defendant would be ordered to pay damages to the plaintiffs for his failure to maintain the property, against which would be offset the arrears of rent (including rent for the rconduction period) to be paid to him by the plaintiffs (page 221, lines 22-42; page 223, line 34 - page 224, line 6; page 224, line 32 - page 225, line 3).

BAILHACHE, BAILIFF: Harry Selby and Janet Mary Ann Selby (ne Hankin), to whom we shall refer jointly as "the plaintiffs," are the owners of a property at Havre des Pas called "Palm's Guest House." Mrs. Selby ("the second plaintiff") is responsible for dealing with reservations, the supervision of staff and the payment of staff wages. Mr. Selby ("the first plaintiff"), who was at one time employed in the building trade, deals with the maintenance of the property and is also responsible for the financial side of the business.

Reginald Edmund George Romeril ("the defendant") is the...