The Duck of Death

In “Unforgivenâ€? Gene Hackman’s character, “Little Billâ€? taunts Richard Harris’ character (“English Bobâ€?) with the true story of how Bob killed “Two Gunâ€?. Two Gun, on seeing the drunken Bob approaching him in the saloon, drew too fast and shot himself in the foot. (Little Bill insists on referring to Bob as the “Duck of Deathâ€?). The Duck then shot Two Gun while he was incapacitated.

Improbable as it would seem, it is possible to find analogy for Two Gun’s mistake and predicament in conveyancing. (“Conveyancingâ€? is the lawyers’ term for the process of buying and transferring ownership of land and buildings).

Contracts for conveyance normally provide for a date to close the transaction. This date is, usually, aspirational.

On the passing of the closing date,, a party wishing to compel the other party to close, serves a Notice to Complete. This Notice will expressly make time of the essence. This means that the recipient of the Notice will be in default (have breached the contract) if, on the expiry of the period of time limited in the Notice for completion, the conveyance is not closed.

The Supreme Court (on appeal from the High Court) in Tyndarius Ltd. v O’Mahony [2003] IESC decided that a party serving such a Notice while himself not “ready willing and able to closeâ€? had committed a repudiatory breach of contract and that the other party (the defaulting recipient of the Notice) was entitled to recover his deposit.

Don’t move too soon!