Contract: ‘the vendor’ is uncertain: keeping deposit paid under valid but unenforceable contract

In Thomas v Brown ((1876) 1 Q.B.D. 714) T agreed to buy a shop from B. The contract referred to the seller not by name but as ‘the vendor’. The court thought that it was bound by authority to hold that this was an inadequate description of the seller so the contract did not satisfy the equivalent of section 3 of the Conveyancing and Property Ordinance. T wanted to recover the deposit paid in accordance with the terms of the contract (which was valid but unenforceable). The contract provided that the deposit would be forfeited if T failed to observe its conditions. T refused to complete and sought to recover the deposit on the basis that the contract was unenforceable. This action failed.

‘[I]t cannot be said that the consideration has failed so as to entitle the plaintiff to recover. By the 10th paragraph of the case it appears that the defendant has always been ready and willing to assign the purchased property to the plaintiff in pursuance of the contract; in short, to give the plaintiff all that was bargained for. Now where, upon a verbal contract for the sale of land, the purchaser pays the deposit and the vendor is always ready and willing to complete, I know of no authority to support the purchaser in bringing an action to recover back the money.’ (Quain J. at 723)

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