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发表于 9-7-2011 01:43:21|来自：新加坡
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优士安居 发表于 8-7-2011 23:47 
如果ratemouse能把案件原文弄出来给大家看就好了。因为第一个案件“复杂”，无法确定在案件1和案件2的optio ...
这个9页文章前面已给了两个链接，一个是SAL（法律学会？)的付费订阅会员可以看，另一个在美国的法律期刊收集网站可以US$30购买。在国图因为快关门了并且第二个案子细节可以查到，只复印了第一个案子，忘记看文章最后有没有两个案子的总结了。
第一个案最主要就是讨论了OTP正确执行是否有隐含条件要求支票需要是可兑现的，案子的其他方面倒是没有什么大的争议。最关键的文中提到的司法委员的和这个案子不一致的意见，一是找不到完整原文，二是会对之后判案有什么影响力也不好说，文中也没结论。
后来通过这个文章的一些关键字终于找到了这个案子的原判决总结
http://www.oocities.org/siliconvalley/pines/8986/3v3250.html
allowing the claim: [原告胜诉:] (1) the defendant had pleaded in his defence that the sum of S$130,000 was owed to the plaintiff by HTM [被告人名字缩写] and not by himself. Since the document DB2 stating HTM's acknowledgment of the said S$130,000 from the plaintiff was the evidence by which the defendant relied upon as proof of the fact that the loan was owed by HTM, it was admissible in evidence. Also, after considering the terms of DB2 and the definition of 'promissory note' in s 2 of the Stamp Duties Act (Cap 312), DB2 was not a promissory note and therefore admissible in evidence; (2) on the evidence before the court and after having considered the written submissions of counsel for the parties and on a balance of probabilities, the plaintiff's version of the events which took place at the office of TCH & Co was accepted. Firstly, the court found that the S$130,000 was handed over by the plaintiff to the defendant on 1 March 1985 outside the office of TCH & Co after the plaintiff had exercised the said option to purchase. Secondly, the plaintiff had agreed to purchase the property from the defendant and HTM for the sum of S$650,000 and had accepted the condition imposed by the defendant and HTM that he was to give the defendant the sum of S$130,000 in cash on the day the contract for the sale and purchase was signed and that he was to pay a deposit equivalent to 10% of the sum of S$520,000 that was recorded as the purchase price in the option, notwithstanding that the parties had agreed that the property be sold at S$650,000 to the plaintiff. Thirdly, the defendant and HTM knew that bankruptcy proceedings were pending against HTM. Fourthly, DB2 was prepared for the purpose of giving the plaintiff some form of assurance that the full purchase price would be refunded if the transaction fell through otherwise he might not have agreed to pay part of the purchase price of the property to the defendant in cash; (3) there was a binding contract of sale as there was nothing in the terms of the option which expressly or impliedly stated that the contract of sale would not come into existence at all unless the said cheque of S$47,000 was honoured upon its presentation for payment. The plaintiff had complied with the relevant term in the option in respect of exercising the option by having signed the acceptance form and delivering the said form together with the cheque for S$47,000 to the solicitors for the defendant and HTM; (4) having regard to the authorities referred to and the practice in England where the parties exchange contracts for the sale of land whereas in Singapore the parties use options for the sale of land, the provision in the option for payment of the deposit was not a condition precedent to the formation of a contract. It was a fundamental term of a contract that was concluded when the plaintiff exercised the said option to purchase the property under the terms stated therein, a breach of which entitled the vendor, if he so elects, to treat the contract as at an end and to sue for damages including the amount of the unpaid deposit; (5) although the contract of sale did not have a term which states that the property was sold subject to the bank's approval and that the contract would be null and void if the approval is not given, the defendant and HTM were not entitled to elect the contract as at an end on 7 March 1985. |
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