Page:Margaret Hamilton of Rockhall v Lord Lyon King of Arms.pdf/37

 "The first task is to construe the terms of the contract, before proceeding to consider what might be implied. The contract, properly construed, may have an express term on duration. Otherwise it may be possible to imply the duration of a contract. such as the business of chartering a ship, or a shipping company trades at Greenock or until a business is discontinued or until computer technology was superseded and out of date. It is highly unlikely that the parties will enter into an agreement for perpetuity, which cannot be terminated by any of them.  particularly if the agreement involves the use of land. Another possibility is that a contract is on a day-to-day basis and does not need to have any formal termination." (Emphasis added.)

In the present case, the necessary and inescapable implication of paragraphs 4 and 5 of the Agreement is that the Agreement was to continue as long as the pursuer was engaged in the brokerage of barony titles. In the absence of any material change in these circumstances, the Agreement cannot be unilaterally terminated by the defender.

[66] Further guidance is provided in Gloag on Contract at page 302:

"Inference of Permanency – Cases of this kind, however, are not reducible to any general rule. It may be inferred from the terms of the contract that it was intended to be permanent. That will be the inference if there was anything of the nature of prepayment."

In the present case, there was prepayment by the pursuer. In particular, the pursuer waived the award of judicial expenses that she would otherwise have been entitled to, as the successful party, as consideration for the Agreement. The parties' agreement that there was to be no award of expenses due to or by any party was expressly referred to in the Agreement because it was the petitioner's consideration for the rights conferred upon her by the Agreement. This is a further indication that the Agreement was intended to endure until there was a material change of circumstances.

[67] In any event, contracts of compromise, such as the Agreement, which resolve contentious litigation and for which consideration has been paid by one or both parties cannot be terminated upon the giving of reasonable notice. If that were the case, it would