CASENOTES FOR BOYLE V.

LEE

The facts

The first plaintiff Eoin Boyle, who had a level of experience in the
development of property for the purpose of developing and reselling
it, sought to purchase the property at 32 Elgin Road in the city of
Dublin. The property was for the value of £90,000 in 1988. The
property consisted of a number of separate flats to individual
tenants. The original negations were said to have taken place
between Mr. Boyle and Mr, McManus, acting on behalf as a member
the Auctioneers of Lisney & Son. The contract was said to have been
completed orally by the above parties. The plaintiff submitted that
he was aware that the development had not received full planning
permission and was accepting this difficulty and decided to waive
any difficulties on the matter. Mr Boyle also claimed that he was
prepared to accept the various tenancies and to buy subject to them
on a representation made by Mr. McManus that none of them were
protected tenancies. Both parties agreed that the deposit on the
property would be handled by their respective solicitors. These
agreements were said to be subject to contract. The plaintiff later
sought specific performance on the grounds of the oral contract.

Following the decision of the high Court in favour of the plaintiff on

the grounds of the trial judge misdirected himself in law and on the
facts suggested that the evidence presented supported or was
capable of supporting that a concluded oral agreement for the sale
of the property. The second ground for appeal was that the trial
judge erred in the law that the letter from Mr. McManus to Messrs.
P.J. Walsh & Company constituted a sufficient note or memorandum
of an oral agreement to satisfy the Statute of Frauds, 1695.
Issue
When the case was brought to the supreme court, the issues of the
case revolved around the facts of whether the oral agreement
including the phrase “subject to contract” amounted to a complete
contract that would be enforceable in court. The second issue
related to whether the letter written on the 8th July, 1988 written to
Mr P.J Walsh, the solicitor of the defendant would amount to a
memorandum or a note of sufficient regard for the purposes of the
Statute of Frauds Act 1695.

Held
The appeal was heard by the Supreme Court (Finlay C.J., Hederman,
McCarthy, O'Flaherty and Egan JJ.) on the 13th and 14th November,
1991.

1) Complete Contract Rulings:

Finlay CJ held that: there was no concluded oral agreement
between the two parties based on the fact that the amount required
for the deposit had not be agreed upon. It was also stated that the
phrase of ‘subject to contract’ are contrary to the existence of the
contract being concluded. This would apply even if the phrase did
not form part of the oral agreement. It was said there are no
exceptions to this ruling which goes against the findings in Muhall v.
Haren.1

Hederman J: concurred with the findings of Finlay CJ on the matter.

McCarthy J held that: there was a contract was concluded as the oral
agreement was concluded by the parties even though amount of the

1 Muhall v. Haren [1981] IR 364

deposit was not agreed upon. He then went on to state the phrase
‘subject to contract’ went against the existence of a concluded
contract.

O’Flaherty J held that: there was no concluded contract, this was on

the grounds of many of the essential term of the contract being
missing. On the matter of the ‘subject to contract’ are a strong
indicator that the concluded agreement does not exist.

Egan J held that: there was a concluded oral contract between the
parties. Also that the conclusion in Muller v. Haren be followed.

2) Memorandum Rulings:
Finlay CJ held that:
“In support of these contentions, in effect, the plaintiffs
submitted that Mulhall v. Haren [1981] I.R. 364 must be
interpreted as being a decision on the failure of proof of a
concluded oral agreement, and not a decision as t o the
inadequacy of the note or memorandum under s. 2 of the Act of
1695, and if it is otherwise to be interpreted it is incorrectly
decided.”2
As such it was found that the letter would not constitute a
memorandum for the sale of the property. As a guideline of sort was
offered to future judgements of a similar nature, that the finds in
this this case should be interpreted in a certain manner otherwise
the finding would be wrong.

Hederman J held that: agreed with Finlay CJ

McCarthy J held that:

2 Boyle v Lee [1992]1 IR 555, [1992] ILRM 65 at 571

 “As I understand it, the law does not recognise as enforceable
a contract to enter into a contract. In any event, whatever be
the exact nature of the deal, the terms of Mr. McManus' letter
cannot be used to meet the requirements of theStatute of
Frauds.”3
As such the letter offered by Mr McManus as evidence would not be
able to amount to a memorandum for the sale of the property.

O’Flaherty J held that: the letter from Mr McManus could not be

described as the memorandum as it didn’t satisfy the condition laid
down in the Statues of Frauds Act 1695. He defended the anomalous
exception of oral offers in Boyle v. Lee 4
“that once there is an oral
acceptance of a written offer it is at that moment a contract comes
into existence and, therefore, the note or memorandum becomes
relevant.”

Egan J held that: the memorandum didn’t exist as the agreement of the
memorandum was missing an important term. He looked to the English courts
system for further readings on the matter, particularly the balance of authority.
Referencing Tiverton Estates v. Wearwell Ltd5that even if the parties produce
evidence to show an agreement over a note or letter amounting to memorandum,
if it does not satisfy the conditions in the Statutes Of Frauds Act 1695, the note or
letter will not be held as a memorandum. .

Comment
Finlay CJ’s findings on the matter of the contract being concluded
overruled the findings of Kelly v. Park Hall School6 and Casey v. Irish
Intercontinental Bank .7 This was also the views of Hederman and
McCarthy JJ. However O’Flaherty and Egan JJ were of the view that
these cases where exceptional and should be accepted on their
facts, creating the possibility of exceptional circumstances where
they could be followed.
3 Boyle v Lee [1992]1 IR 555, [1992] ILRM 65 at 578
4 Boyle v Lee [1992]1 IR 555, [1992] ILRM 65 at 89
5 Tiverton Estates v. Wearwell Ltd. [1975] Ch. 146
6 Kelly v. Park Hall School [1979] I.R. 340
7 Casey v. Irish Intercontinental Bank [1979] I.R. 364
While there were dissenting views (O‘Flaherty and Egan JJ) on the
matter of the conclusion of the contract, the Supreme Court
unanimously found against the existence of the note or
Memorandum of the agreement as, what was put forward as
evidence to the Supreme Court did not satisfy the conditions needed
for a memorandum laid down in the Statute of Frauds Act 1695 S.2.
This followed the ruling on the matter in Miller v. Haren. It was also
found by the Supreme Court that a written note which denies the
existence of a contract cannot constitute a memorandum for the
purposes of the Statute of Frauds

The findings of Boyle v Lee was seen as the leading case on the
matter and was followed in many cases:
1. The matter of allowing the solicitors to decide the deposit was
cited in Supermac’s Ireland Ltd V Kastesan (Naas) Ltd8 rejecting
the defendant’s claim to strike out the order of specific
performance for the sale of property.
2. Also look at the case of Revenue v Mooney [1972] IR 372, that
the payment part of a contract can be waived to a degree, goes
against Finlay CJ’s ruling on Casey and Kelly, that they should not
be followed

8 Supermac’s Ireland Ltd V Kastesan (Naas) Ltd[2001] 1ILRM 401 [2000] 4 IR 273