SOTRI SOTIRIOU ν. LUCA HAJI ZISSIMOU (V8) 1 CLR 20

SOTRI SOTIRIOU ν. LUCA HAJI ZISSIMOU (V8) 1 CLR 20 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V8) 1 CLR 20 1908 February 28 [TYSER C.J. AND BERTRAM J.] SOITRI SOTIRIOU, Plaintiff, v. LUCA HAJI ZISSIMOU, Defendant, EX PARTE SOITRI SOTRIOU, HAJI HARALAMBI ZISSIMOU, Respondent. ACKNOWLEDGMENT OF DEBT-DOCUMENT GIVEN TO BE ENFORCED ON CONTINGENCY-DOCUMENT GIVEN AS COLLATERAL SECURITY-MEJELL?, ART.1610- ESTOPPEL. The doctrine of the conclusiveness of an acknowledgment of debt (deyn sened customary form (Mejell?, Art. 1610) considered. It is open to a person bound by such an acknowledgment, as against the person to whom it was given, to show the conditions on which, according to the real agreement between the parties, it was to become enforceable. He may also against other person claiming under the acknowledgement, unless precluded by estoppel, or some other equitable plea. Where such an acknowledgment is given subject to the condition that it shall not be put in suit until a certain event has happened, or a certain condition is fulfilled, then although the document is conclusive as to the obligation of the person who gives it, it only becomes enforceable when the event happens or the condition is fulfilled. Where such Van acknowledgment is given as collateral security for the performance of an agreement it does not become enforceable until there has been a breath of the agreement. Where such an acknowledgment is given as collateral security for the performance of an agreement, and the agreement is afterwards rescinded by the parties, or for any other reason (without default of the party giving the acknowledgment) ceases to be operatives the acknowledgment never becomes enforceable and no action can be brought upon it. A.as part of an arrangement for the settlement in marriage of his adopted son B., undertook on the celebration of the marriage to have a certain house registered in his name. The marriage was not to take place for three years and to secure B. against the contingency of A. dying in the interval, A. gave to B. an acknowledgment in the customary from, acknowledging the receipt of £100, and promising to repay it in three years with interest. Afterwards B. borrowed money from C. depositing A.'s acknowledgment in C.'s hands. C. recovered judgment against B., and, the three years mentioned in A.'s acknowledgment having expired, sought to have the sum stated in A.'s acknowledgment to be due from A to B., applied in satisfaction of his judgment It was not proved that B. had made any representation to C., or that C. was in fact deceived by the form of the acknowledgment. HELD: That the acknowledgment was not enforceable. HELD: Further, that A. was not stopped as against C. from pleading that the acknowledgment was not enforceable. This was an appeal from the decision of the District Court of Famagusta dismissing an application made on the part of the Plaintiff in the action for an order that the Respondent to the summons should pay to the Plaintiff, 50 much of a debt of £100 said to be due from the Respondent to the Defendant as was necessary to satisfy the Plaintiff's judgment. The debt had been attached, or at any rate proceedings which accepted as equivalent to an attachment were taken. The present summons was taken under Sec. 77 of the Civil Procedure Amendment Law, 1885. The Respondent disputed the alleged debt to the judgment debtor, an issue was ordered between the parties and the District Court found that the Respondent was not indebted to the judgment debtor, as alleged. The evidence of the alleged debt was an acknowledgment of debt, drawn up in the customary form, and signed by the Respondent, acknowledging the receipt of £100 in cash, and promising to repay the amount in three years with interest. The Plaintiff's advocate, as a matter of fact did not allege that the Defendant received any cash from the Respondent, but only that the acknowledgment was given to the Defendant as remuneration for past services rendered to the Respondent. According to the evidence given on behalf of the Respondent the facts were as follows:- The Defendant was the adopted son of the Respondent and had for some years.assisted him by working in his garden. The Respondent was desirous of settling the young man in marriage and the acknowledgment was given as part of an arrangement for this purpose. The marriage was to take place after an interval of three years when the Respondent was to endow the couple with a house and the parents of the bride were to pay a sum of money to the Respondent. Until the marriage the young man was to continue to assist the Respondent in. his garden. As it was quite possible that the Respondent (who appears to have been advanced in years) might die before the arrangement was consummated (in which event there would be no transfer of the house) the Respondent to secure the young man against this contingency gave him the acknowledgment in question. The method of procedure was adopted on the advice of the Mukhtar of Varosia where all the parties resided. Having obtained this acknowledgement, the Defendant then borrowed money on another acknowledgment from the Plaintiff depositing the first acknowledgment in his hands. Default was made in the payment of the acknowledgment due to the Plaintiff, who put it in suit and recovered judgment. The first acknowledgment, according to its terms, being now due, the Plaintiff sought to have it applied in satisfaction of his judgment debt. He contended that under Art 1610 of the Mejell? the Respondent was bound by the terms of the document, at any rate as against the Plaintiff, who on the strength of the document advanced his money to the Defendant. The District Court, as already stated, dismissed the Plaintiff's application. The Plaintiff appealed. Paschales Constantinides and Agathangelos Papadopoulos for the Appellant. Michaelides for the Respondent. Judgment. CHIEF JUSTICE: Art. 1610 of the Mejell? if read in its literal sense is extremely stringent and in certain cases might work great injustice. By that article, so read, any man who has been given an acknowledgment of debt made in the usual form, if payable to himself or to bearer, can recover on it. The obligee who admits his seal or signature cannot dispute it. If a person is in possession of an acknowledgment made in his favour prima facie it must have been taken to have been given to him, but this is not conclusive. If the maker of the acknowledgment had put it in his drawer and the person in whose favour it had been made had taken it without permission, this certainly could be proved, and an action on the acknowledgment would be dismissed because the acknowledgment had not been given. Again if the acknowledgment had been given by the maker to some one to keep or to take to some one else, and the person to whom it was given kept it and sued upon it. Although the acknowledgment was payable to the bearer or to the person suing, he could not recover because it would be shewn that it had been given not with intention of conferring on him a right to sue but for another purpose. Similarly in this case, it is proved that the acknowledgment was given to the Plaintiff upon terms which were agreed between the parties that the Plaintiff should keep the document as security for the performance of the terms of a marriage contract and that he should not sue unless there was default on the part of the maker of the document in carrying out his part of the marriage contract, or he should die before he could carry it out and it is open to the Defendant to show on what terms the document was given. That is to say he can shew that by the agreement between the parties the document was neither given nor received with the intention that the Plaintiff should take with it the right to sue on the acknowledgment, except after certain conditions were fulfilled. If the contentions of the Plaintiff were to be allowed it would follow that when an acknowledgment was given to secure the performance of certain work by the maker of the acknowledgment, the holder might still sue the maker of the acknowledgment even after he had completed the work which he had undertaken to do, because the maker would not be entitled to shew that the acknowledgment had been given merely as security. In my opinion it is open to the Defendant to shew that an acknowledgment given was given upon express terms which disentitle the holder to sue. He cannot alter the written terms of the acknowledgment but he can prove what was the real contract made between the parties independently of the acknowledgment at the time the acknowledgment was given. It is by this real contract that the Defendant is bound and that is all the Plaintiff can claim. I have read the judgment of Bertram, J., and I agree with the applications of this principle which he there makes, and with what he says on the subject of the plea of estoppel. BERTRAM, J.: There is no question that Art. 1610 of the Mejell?, as interpreted by the decisions of this Court (Haralambo v. Haralambo