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To be enforceable, an agreement to sell land or buildings must be in writing.  This longstanding legal requirement has been restated in section 51(1) of the Land and Conveyancing Law Reform Act, 2009.   An oral agreement will be enforced where “a note or memorandum in writing” exists which acknowledges the existence of the contract and sets out its main terms.  Using the phrase "subject to contract/contract denied" expresses an intention that the document cannot be used as such a note or memorandum.

The recent Irish High Court decision of O’Connor v. P Elliott and Company [2010] IEHC 167, focused on two solicitor’s letters, headed “without prejudice” and written in the course of negotiations regarding the development and sale of a property in central Dublin.

Murphy J decided that the phrase would only prevent the letters being used in evidence if these were sent with the purpose of resolving a legal dispute, which was not the case here.  He also decided that (a) solicitors had implied authority to bind their clients in correspondence and (b) a statement in one of the letters that all matters appeared to have been agreed meant that an enforceable agreement existed even though some elements had not been agreed.  The precise nature of the work to be done was a matter of detail.  The consequences of tax advice and the nature of the title to be transferred related to the mode of implementing the agreement as distinct from whether an agreement existed. 

Murphy J ordered specific performance on foot of the letters from the solicitor.

Attribute to Kevin Hoy, Partner, Mason Hayes & Curran.

Kevin is head of Mason Hayes & Curran's real estate department.  For more information, please contact Kevin at khoy@mhc.ie or + 353 1 614 5000.  The content of this article is provided for information purposes only and does not constitute legal or other advice.  Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York. 

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