Limiting time for making requisitions on title.

(d) See Re Marsh and Earl Granville, 24 Ch. D. 11.

(e) See above, p. 58.

(f) 1 Davidson, Prec. Conv. .539, 614, 4th ed.; 449, 5th ed.; 1 Key & Elphinstone. Prec. Conv. 265, 4th ed.; 253, 8th ed.

(a) 1 Davidson, Prec. Conv. 521-2, 5th ed.; 1 Key & Elphinstone, Prec. Conv. 265, 4th ed.; 253, 254, 8th ed.

(h) Upperton v. Nicholson, L. R.

6 Ch. 436; 1 Dart, V. & P. 125, 5th ed.; 141, 6th ed.; 137, 138, 7th ed.

(i) Sobson v. Bell, 2 Beav. 17; Morley v. Cook, 2 Hare, 111; Blackburn v. Smith, 2 Ex. 789; Gray v. Fowler, L. R. 8 Ex. 249, 279; Sug. V. & P. 21; 1 Dart, V. & P. 126. 161, 162, 281, 5th ed.; 142, 184, 321, 6th ed.; 138, 174, 317, 7th ed.

As we have seen (m), in the absence of any stipulation as to time, the vendor is bound to deliver the abstract within a reasonable time after the contract, and the purchaser is bound to make his objections, if any, to the title within a reasonable time after the delivery of the abstract; and if the latter make undue delay in examining or accepting the title, he may lose his right to enforce the specific performance of the contract (n). And retainer of the abstract for a long time, without making any requisitions, may amount to an acceptance of the title (o). In case of unreasonable delay on the purchaser's part, the vendor may send him a notice requiring him to accept or reject the title within a definite period (which must be a reasonable space of time as from the date of the notice), on pain of the vendor's putting an end to the contract; and if the purchaser fail to comply with such a notice, he will lose his right to enforce specific performance of the contract, and the vendor will be at liberty to rescind the contract or to sue upon it as broken (p). What is a reasonable time is a question of fact to be determined with regard to the circumstances of each particular case. If the vendor delay in sending the abstract of title, the purchaser should ask for it; if he fail to do this, he will be considered to have waived the delay, and will be precluded from asserting the non-delivery of the abstract within the appointed time or a reasonable time, as the case may be, to be a breach of contract by the vendor (q).

(k) See 1 Dart, V. & P. 126, 5th ed.; 142 6th ed.; 138, 7th ed.: 1 Davidson, Prec. Conv. 540, 4th ed.; 450, 5th ed.; 1 Key & Elphinstone, Prec. Conv. 265. 4th ed.; 254, 8th ed.; above, p. 38.

(l)Want v. Stallibrass, L. R. 8 Ex. 175: Re Tanqueray Willaume and Landau, 20 Oh. D. 465, 473, 474; see below, Chap. V. Above, p. 48. (n) Spurrier v. Hancock, 4 Ves. 667; Fry, Sp. Perf. Sec. 1103. p.

(o) Romilly. M. R., Pegg v. Wisden, 16 Beav. 2 39, 244, 245; Fry, Sp. Perf. Sec. 1351, p. 601.

Purchaser should ask for abstract.

7. The vendor generally reserves the right to rescind the contract if the purchaser shall insist on any requisition or objection which he shall be unable or unwilling to remove or comply with (r). In the absence of such a stipulation, neither party is at liberty to recede from the agreement without the consent of the other; this is of the very essence of contract. A right so reserved to rescind the contract must be exercised reasonably and in good faith, and not arbitrarily or capriciously (s): but if this limitation be observed, the present tendency of the Courts is not otherwise to interfere with the effect of such a condition by enforcing specific performance against a vendor who has availed himself of the letter of a stipulation entitling him to rescind. The condition is now very frequently framed in such a way as to give the purchaser the opportunity of withdrawing the requisition, with which the vendor cannot or will not comply (t); and this certainly appears to be the fair and proper course to take.

Reservation to vendor of right to rescind the contract.

(p) Taylor v. Brown, 2 Beav. 180, 183; Walker v. Jeffreys, 1 Hare, 341, 348; Sug. V. & P. 268, 269; Fry, Sp. Perf. Sec. 1092 sq. pp. 499 sq.; Compton v. Bagley, 1892, 1 Ch. 313; above. pp. 36, 49.

(q) Sug. V. & P. 260, 261; 1 Dart, V. & P. 304, 305, 5th ed.; 346, 347, 6th ed.; 341, 342, 7th ed.

(r) This has long been usual; Falkner v. Equitable Reversionary Co., 4 Drew. 352; Juridical Socy. Papers, ii. 590; 1 Davidson, Prec. Conv.564,4th ed.

(s) Re Dames and Wood, 29 Ch. D. 626; Re Glenton and Saunders to Haden, 53 L. T. N. S. 434; Re Terry and White's Contract, 32 Ch. D. 14; Re Starr Bowkett Bdg. Socy. and Sibun's Contract, 42 Ch. D. 375; Re Deighton and Harris"s Contract, 1898, 1 Ch. 458; Quinion v. Home, 1906, 1 Ch. 596; see Greaves v. Wilson, 25 Beav. 290; Bowman v. Hyland, 8 Ch. D. 588; Smith v. Wallace, 1895, 1 Oh. 385; Re Jackson and Haden's Contract, 1906, 1 Ch. 412; Holliwell v. Seacombe, ib. 426; below, Chap. V.

8. The purchaser's right to require evidence of the identity of the property sold with that described in the title-deeds (u) is usually limited by a stipulation, which precludes him from calling for other evidence of identity than is afforded by comparing the descriptions in the title-deeds with that contained in the contract (x). But this stipulation, in its common form, does not enable the vendor to enforce specific performance, without further evidence of identity, if such comparison afford no evidence that the property sold corresponds with that or part of that described in the deeds (y).

Evidence of identity.

9. It is usually provided that errors of description shall not annul the sale, and either that no compensation or that reasonable compensation shall be allowed therefor (z). The better opinion is that an agreement allowing no compensation for errors of description applies to all errors, both great and small, so as to preclude the purchaser from requiring (as otherwise he might require (a) ) specific performance of the contract with compensation: but it is held that the vendor is not thereby enabled to force upon the purchaser a property which has been substantially misdeseribed (b). An express contract to make compensation for errors of description does not appear to add or subtract anything to or from the purchaser's ordinary right to enforce specific performance of the contract with compensation (c): but it gives him the right, which he would not otherwise possess (d), to recover compensation for an error innocently made by the vendor but not discovered until after the completion of the contract (e). The vendor cannot, by reason of a condition to allow compensation, oblige the purchaser to take a property substantially different from that sold (f); but such a condition may cover a considerable deficiency in quantity even when the vendor is seeking to enforce the contract, if the Court be satisfied that, substantially, the purchaser will get the sort of property he contracted to buy (g). It is considered that a condition precluding any right to compensation is, on the whole, more advantageous to the vendor (h). Where a condition for giving compensation is made on a sale by auction, it is usual to provide that compensation shall be allowed on either side, so that the vendor may take advantage of it as well as the purchaser (i); and it is desirable to stipulate that it shall apply only to errors of description pointed out before completion (k).