Party seeking to enforce a contract can waive an orally agreed term that is to his advantage

Where there is a sufficient memorandum of a contract for the sale of land but the defendant alleges the existence of some special term not covered by the memorandum, the plaintiff can waive that term if it is a benefit to him and a obligation on the defendant.

In North v Loomes ([1919] 1 Ch 378) there was an oral agreement for the sale of land. The seller gave the buyer a signed receipt that specified all of the essential terms. The buyer’s solicitor wrote back to say that there was no need for a draft agreement as the receipt was sufficient. There had also been an agreement that the buyer would pay the seller’s legal costs but this was not mentioned in the receipt or the letter. The seller brought proceedings for specific performance and, among other things, the buyer alleged that there was no memorandum because of the failure to mention costs in the written documents. The judge referred to previous authorities to the effect that the seller could overcome this problem if he chose not to enforce the term as to costs. He could waive this term since it was to his advantage.

The buyer / defendant also alleged that his solicitor did not have authority to enter into a contract for his client and so could not sign a memorandum on his behalf. This was rejected on the basis that here the solicitor had been told to complete an agreement that he had been told was already in place he had authority to deal with the necessary formalities.

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