2. In general, the innocent party gets to maintain bail – but not always. Remember the Court`s discretion under Section 49 of the Property Act 1925 to order the return of the surety, including to a defaulting buyer, where required by court. In the end, no wind is guaranteed in a bustling real estate market! Damages are all reasonably foreseeable losses that naturally result from the failure to place the “innocent” party in the position it would have been in if the purchase was completed. The starting point is therefore the difference between the contract and the prices of the property, that is.dem the loss of earnings of the aggrieved party and other costs such as wasted legal fees or interest payable on a mortgage or bridge loan. The seller must credit the deposit received. There can be no “profit” element in the calculation of damages. Despite the best wishes of many people inspired by the extravagance of damages in the United States, there is no punitive damages. On the condition of 6.8.3 of the SCS and 9.8.3 of the third edition, the buyer must pay a down payment of 10% (c) In the event of a payment paid, a down payment paid is generally not refundable, as it is a guarantee for the performance of the contract. Second, the Court recalled that the exercise of the discretion of Section 49 (2) of the Property Act 1925 was “where the regulation of morality required it” and that it should not be used solely because the sale was not completed.
Mr. Omar, knowing that he had to pay a surety that would expire in the event of a late payment, entered the transaction. Mr. Omar`s conduct did not show him sympathy with the Court of Justice and, if a buyer fails to comply with his obligations, the circumstances under which the Court will exercise its discretion under Section 49, paragraph 2, must be exceptional. Here, the court was confronted with two debacquent parties. Although both are not beyond reproach, the Court refused to exercise its discretion in favour of Mr. Omar. The Jamaican Workers Trust and Merchant Bank Ltd/Dojap Investments [1993] set an important precedent for large deposits, which british courts have often relied on.
The case establishes the general rule that if the down payment does not exceed 10% of the full prince, the contract remains enforceable, so that the down payment may expire if the buyer is late. Conversely, a down payment of more than 10% is generally considered a penalty and is therefore not applicable. In this case, the total “deposit” will be returned to the party, which does not only violate the 10% amount. The facts are quite tortuous (and simplified here), but this is a dispute between Mr. Omar and Mr. El-Wakil over two agreements reached on the same day.
