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37 Damages For Loss Of Bargain Due To Defective Title

In This Volume

  • 37 A court may award damages for loss of a bargain against a person who cannot perform a contract to dispose of land because of a defect in the person’s title.



The Rule in Bain v. Fothergill

This section abolishes the rule in Bain v. Fothergill (1874), L.R. 7 H.L. 158, which provided that a purchaser under a contract for the sale of land is not entitled to damages for loss of bargain from a vendor who cannot perform due to a defect in title. For a case decided before proclamation of this section, see A.V.G. Management Science Ltd. v. Barwell Developments Ltd., 1978 CanLII 180 (SCC), in which the Supreme Court of Canada suggested that the rule in Bain v. Fothergill does not apply in any Torrens jurisdiction and so was not the law in British Columbia even before the enactment of s. 37.