Contract rescinded by conduct and writing; damages claim dismissed due to lack of evidence.

[*306] 1982 February 3

(ARTEMIDES, Ag.P.D.C.)

Irini Savva Shirari,

Plaintiff,

v.

Panayiotis Savva,

Defendant,

(Action No.3608/79).

Contract - Rescission - Principles applicable - Rescission by conduct - Section 62 of the Contract Law, Cap. 149

A. Paikkos, for the plaintiff.

P. Papageorghiou for the defendant.

JUDGMENT

The following judgment was delivered by:-ARTEMIDES, Ag.P.D.C.: The plaintiff is the[*307] mother of the defendant. From the evidence adduced by both parties it has become obvious that their relations are far from being that of a mother and son. They appeared to be enemies to the point of the mother feeling that her son will physically destroy her, as she herself has put it. These acrimonious feelings seem to go back far in the past and the reasons are unknown to me and of course not relevant to the present case. However, I can say that illiteracy, poverty, lack of opportunities and a very hard life, might have been the reasons for the unfortunate relations between the mother and the son.

The mother claims from the son damages for breach of contract allegedly caused to her from the refusal of the son to allow her to live in the out-buildings standing on a plot of land which she has registered in his name in consideration for her staying in those buildings during her life-time. She further claims the sum of C£980.- which she contends she has given him on three different occasions as a loan and which the son has failed to return.

The son alleges that the agreement which is embodied in a written contract of 6.5.1978.was rescinded by another one signed by the mother on 10.6.1978 by which she has abandoned her life interest to stay in the out-buildings. With regard to the alleged loan to him the son alleges that his mother lies in that she never gave him any money.[*308] In the statement of claim there are some other allegations regarding articles which are the property of the mother and which the son unlawfully kept in his possession, but the mother admitted in evidence that these articles have already been returned to her.

It is common ground that the only issues. before the Court are the ones I have already set in hereinabove. The relevant contract of 6.5.1978 as well as the alleged agreement of 10.6.1978 for the rescission of the first contract have-been put in by consent as exhibits 1 and

2 respectively, The mother and the son were the only witnesses in respect of their case.

The mother was the owner of a building site in Ayios Dhometios, at Ayios Pavlos locality under registration No. F.236, plot No. 216, Sheet/Plan XXI.45.4. On this plot there is an old house. The plot was divided in two and the mother registered one half in the name of the son, this being the northern part of the plot; the other half remained registered in the name of the mother who, however, in the meantime: has registered it in the name of her. daughter.

The mother said in evidence that when she registered the one half share to the son she had not asked anything from him in return but the son on his-own free will after a few days signed and gave her exhibit 1. Exhibit 1 is in the hand-writing of an advocate and it is a declaration [*309] by the son that in consideration of the-registration in his name of the one half share of the plot

of land by his mother, he agreed that she would stay for as long as she lives in the out-buiIdings, standing on the land. This document reads as follows:-

"Ο κάτωθι υπογεγραμμένος

Παναγιώτης Σάββα, εξ Αγίου Παύλου Λευκωσίας, εις αντάλλαγμα γενομένης σήμερον

μεταβιβάσεως ½ οικοπέδου εις Άγιον Παύλον, συμφωνώ όπως η μεταβιβάσασα μητέρα

μου Ειρήνη Σάββα διαμένη εφ’ όρου ζωής εις τα υπάρχοντα εις το ρηθέν οικόπεδο

βοηθητικά και να μην έχη κανείς το δικαίωμα να την διώξη την μητέρα μου".

The son agrees that he signed exhibit 1 but the issue that was raised during his evidence is whether there were any out-buildings at the time when this, document was signed. He said, that there were no out-buildings on the land except for the old house but he was to construct them. The evidence of the mother on this matter was vague and proceeded on the line that the out-buildings were standing on the land when exhibit 1 was signed. Her counsel stressed the meaning of the word "yparhonta" in exhibit 1,

From the totality of the evidence adduced there can be no doubt whatsoever that there were no out-buildings on the 'land when exhibit 1 was signed. The only thing that was standing on the plot was the old house. If one [*310] reads carefully the statement of claim of the mother this is what in fact she herself alleges. From a combined reading of the contents of paras.

5 and 6 of the statement of claim it becomes apparent that the mother registered first the one half

share of the plot in the name of the son, who had consequently undertaken to let her live in the out-buildings which

he was about to construct. In fact the mother herself alleges that the out-buildings were erected with money she' has spent herself after she had registered in the name of the son the one half share in the building site.

The son, who is a refugee, was living until then in Limassol and had decided to go to Australia with his wife to make a new life there but the mother in order to allure him to stay in Cyprus had registered in his name the one half share of her land on which the son undertook to erect the out-buildings where his mother would live. He started doing so shortly after the signing of exhibit 1. The out-buildings have not been completed but the son admits that he lives in them with his wife and children. These out-buildings consist of one room looking like a garage, a small kitchen and a toilet.

The mother denies that she ever appreciated the contents of the declaration, exhibit 2, she signed on 10.6.1978 by which exhibit 1 was rescinded. She in fact alleges that she was trapped in signing that document because she was told by her son that it was a document [*311] which would help him to get a loan from the Government as a refugee to build his house.

It is common ground that the mother is illiterate and her thumb mark is appearing on this document but after considering her testimony and that of her son, I have no doubt whatsoever that the son is telling the truth, whilst she is lying. The document, exhibit 2, was signed before the mukhtar of Ayios Pavlos, who has not been called as a witness because he is now dead. However, this document bears the signature of the daughter of the mother as well who knows how to read and write. The daughter was sitting in the Court room, following the proceedings and she was not called by the mother to support her allegations. The daughter is in very good terms with the mother. In fact she is living with her in that part of the old house which is standing on the plot now registered in the name of the daughter. There is also another reason showing that the mother is lying when she says that she did, not know the contents of exhibit 2. According to her allegation, she thought that it was a document which would help the son to be granted a loan from the Government In order to build his house. On 10.3.1979, that is, sometime after exhibit 2 was signed, the mother signed as a' guarantor on a contract for this purpose entered into between the son and the appropriate authority by [*312] which as a refugee he was granted a loan of C£2,700.-This document has been produced and is exhibit 3. The mother contended again in her testimony that she was tricked into signing that document, the contents , of which she had not appreciated. I dismiss straightforwardly this contention. The contract was signed in the presence of the government officials who also signed on behalf of the appropriate authority, which granted the loan, and certainly the contents of this document was explained to the mother. I, therefore, find that the mother knew very well the contents of exhibit 2, which she signed on her own free will.

Counsel for the mother submitted that exhibit 2 does not rescind exhibit' 1. If it was the purpose of the mother so to do the appropriate clear words would have been used for this purpose, i.e., that by exhibit 2 the agreement contained in exhibit 1 was rescinded, whilst the contents of exhibit 2 is as follows:-

"Εγώ η κάτωθι

υπογεγραμμένη Ειρήνη Σάββα Σοιηριαρή εκ Λευκωσίας αρ. Ταυτ. 214838 δηλώ ότι

από το οικόπεδον μου εις Αγ. Παύλον αριθμόν εγγραφής F 236 Φ/Σ ΧΧΙ/45 W τεμ. 216 εμετεβίβασα ως δωρεάν εις τον υιόν

μου Παναγιώτη Σάββα Γιαννακού το ½ μερίδιον του οικοπέδου το οποίον είναι προς βορράν,

το δε υπόλοιπον ½ μερίδιον το οποίον είναι προς νότον παραμένει εγγεγραμμένον

επ’ ονόματι μου. Δηλώ επίσης ότι κατ’ ουδένα λόγον θα επεμβώ εις το μερίδιον

του υιού μου τόσον εγώ όσον και η θυγατέρα μου Χρυστάλλα Σ. Γιαννακού" .[*313]

I shall advert very briefly on the legal implications of this issue in view of the fact that counsel have restricted themselves to present their case on the factual aspect only.

Section 62 of. our Contract Law (Cap. 149) provides that:—

"If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed".

This section of our Law. has been the subject of judicial consideration in the case of Cyprus Agriculture and . Transport Co. Ltd. and Another v. The Attorney-General of the Republic (1971) 1 C.L.R. 267, where the Supreme . . Court has dealt extensively with this legal issue and. referred to the similar provisions contained in the Indian Contract Act (1872) and the case law in England. I shall refer only to an extract from Halsbury's Laws of . England, 3rd Ed., Vol. 8, p.174, para. 296, which is also cited in the above case arid which is relevant to the present cause:

"A rescission of the original contract may be Implied where the parties have subsequently entered into an agreement which is inconsistent with it; and where neither party has insisted upon the performance of the contract for a long period[*314]after it was made, or where the parties have acted inconsistently with its' continuance, an intention to abandon the contract may be inferred. In that case the contract will be deemed to be rescinded although no express agreement to such effect has been made".

The last

words contained in exhibit 2 are the following: "Δηλώ επίσης ότι κατ’ ουδένα λόγον θα επέμβω εις το μερίδιο του υιού μου τόσον εγώ όσον και η θυγατέρα μου

Χρυστάλλα Γιαννακού ". The out-buildings have been erected on the part of the land which was registered in the name of the son. After the registration, the mother as well as the daughter Chrystalla signed exhibit 2, by which they declare that they will under no circumstances interfere with the property in the name of the son. In my judgment this is an unequivocal declaration of an intention, which was accepted by the son, not to interfere with his property and therefore the agreement contained in exhibit 1 was rescinded, Furthermore the conduct of the parties after exhibit 2 was signed shows expressively their intention to rescind the agreement contained in exhibit 1. The mother and the daughter are now living in rooms which are in the old house standing on the part of the land, which is registered in the name of the daughter. It has been admitted by the mother that the son erected a bathroom and a toilet adjoining these rooms. [*315]

The reason why the parties have agreed to rescind the agreement contained in exhibit 1, is the bad/relations continuing between the son and the mother who apparently rejects the wife of the son and have therefore agreed to live apart each on their own property.

In the light of the above I find that the contract contained in exhibit 1 has been rescinded by both parties in writing and by conduct after it was signed.

I now proceed to deal with the last issue in this action, that is the allegation of the mother that she gave on three cocasions a loan amounting to C£980.- to the son. She said in evidence that on the first occasion she gave him C£500.- in cash, which she withdrew from her bank. She also_said that on the one occasion the daughter was also present. As I have already-said, after having heard both the mother and the son oncoath, I have come to the conclusion that the mother is not. telling the truth. If, as she said, she had withdrawn the money of the bank she could at least produce evidence to prove this withdrawal-by her. The daughter, who is living with her and was present in Court, could have come and give evidence to support her allegation since on one occasion she was present when she allegedly gave the cash to the son.

There is finally another point with which I intend . to deal briefly, in order to give

finality to the present litigation. If the mother had succeeded to prove breach [*316] of contract, which is existing and not rescinded, I must

point out that she failed to adduce evidence to prove the damages she has sustained.

By that contract she agreed to stay for life in the cut-buildings, No evidence has been adduced to describe properly those-buildings and give to the Court an indication on which the damages to be awarded to her would have been assessed. I have pointed this to her counsel who, however, said that the Court can take Judicial notice that those buildings could have been rented at about 0£20.- per month. Certainly this is not a matter on which the Court could have taken judicial notice and it was upon the mother to _ adduce evidence-to support her claim for damages. General damages need not be proved but evidence on which the Court shall base its assessment of them must be adduced otherwise the claim will hang in the air.

In the light of what I have decided the action is dismissed with costs against the plaintiff to be assessed by the Registrar.

Action dismissed with costs.