“Upon the conclusion of a contract which has the purpose of the non immediate transfer of ownership or other real right of enjoyment of a property to be built or an act having the same purposes, or at an earlier time the builder is obliged, on penalty of voiding the contract, which can only be enforced by the purchaser, to obtain a surety and consign it to the purchaser, also in accordance with Article 1938 of the Civil Code, for an amount corresponding to the sums and the value of any additional settlement that the builder has received and in accordance with the terms and conditions laid down in the contract, must still receive from the buyer before the transfer of ownership or other real right of enjoyment.”
“Rule 22 – Withdrawals from a client account (1) Client money may only be withdrawn from a client account when it is: (a) properly required for a payment to or on behalf of the client (or other person on whose behalf the money is being held); (aa) properly required for a payment in the execution of a particular trust, including the purchase of an investment (other than money) in accordance with the trustee’s powers; (b) properly required for a payment of a disbursement on behalf of the client or trust; (c) properly required in full or partial reimbursement of money spent by the solicitor on behalf of the client or trust; (d) transferred to another client account; (e) withdrawn on the client’s instructions, provided the instructions are for the client’s convenience and are given in writing, or are given by other means and confirmed by the solicitor to the client in writing.” (a) properly required for a payment to or on behalf of the client (or other person on whose behalf the money is being held); (aa) properly required for a payment in the execution of a particular trust, including the purchase of an investment (other than money) in accordance with the trustee’s powers; (b) properly required for a payment of a disbursement on behalf of the client or trust; (c) properly required in full or partial reimbursement of money spent by the solicitor on behalf of the client or trust; (d) transferred to another client account; (e) withdrawn on the client’s instructions, provided the instructions are for the client’s convenience and are given in writing, or are given by other means and confirmed by the solicitor to the client in writing.”
“By the signing of the present agreement, V.F.I., Overseas Properties Real Estate Agent Limited gives - and RDV srl takes note – irrevocable mandate to Giambrone & Law International Law Practice, main office in London, to collect in a fiduciary deposit on its own non interest bearing deposit account the deposit and the commission due to the AGENT. The law firm – “Giambrone & Law” – which undersigns this agreement through its own legal representative Avv. Gabriele Giambrone – takes note and undertakes to release the deposit and the commission due to the AGENT only following a written ratification of the preliminary contract by Mr Antonio Cuppari and the issuing of a regular Invoice from the AGENT to the PRINCIPAL.”
“We will provide a full legal package with qualified lawyers and handle all aspects of moving in, including any legal documentation that is required.”
“Re: Purchase of your property in Calabria We have been passed your details from VFI following your reservation of a new property in Jewel of the Sea (Calabria). Giambrone & Law LLP is one of the leading Italian Law firms in the United Kingdom and Ireland and we have a dedicated department specialising in Italian Real Estate law and off-plan property acquisitions. We have been requested to complete the necessary due diligence over the development, issue the Preliminary Contracts and to advise you in relation to the legal aspects of the aforementioned purchase. We have experience in advising a growing number of foreign investors in the Calabrian market, which is now fast becoming one of the "hot spots" in the Italian real estate market, with prices increasing rapidly. Our lawyers from the London office have visited the area of Calabria and met with the representatives of VFI and of the Builders in order to discuss the legal aspects of these new developments in more detail. Moreover, we will soon be opening a new office in Reggio Calabria: we hope to build a long relationship with you and be able to advise you on all different aspects of Italian law after you complete your purchase in Italy. A brief overview of the purchasing process Although we may been recommended to you by the Promoters, we wish to emphasise that our Italian Lawyers are completely impartial from any other party associated with this purchase and therefore we will act solely in your best interests and advise you on all aspects of Italian law which will be relevant to your purchase. The initial part of our remit is to carry out the customary due diligence over the Development and draft the Preliminary Contract in compliance with the provisions of the Italian Civil Code and local legislation. Our Italian Lawyers have already requested a number of documents to enable us to carry out the due diligence over the Limited Company which is building the Complex. We have already carried out a number of land registry searches, called visure catastali, visure ipotecarie, and check the certificate di destinazione urbanistica, to verify that everything stated in the initial draft of the Preliminary Contact is correct. … We would routinely carry out enquiries to ensure that there are no liens, encumbrances, and rights of way in favour of third parties and that the land is legally registered with the urban registry, and, furthermore, that valid planning permission is in place for the project to go ahead. We will ensure that the Builders/developers or the Promoters will provide us with a copy of a "fidejussione bancaria", which is now mandatory in certain circumstances: this is a bank loan guarantee that has to be provided by them so that, in the event of bankruptcy, we can claw back any funds anticipated at this stage directly from the guaranteeing Bank. We will draft a Report on Title which will give you a clear idea of the legal status of the apartment that you wish to purchase and of the land upon which it is being built. At the same time, the final version of the Preliminary Contract will have been prepared by our lawyers and it will be sent to you for your consideration. Our documents are always drafted in Italian and English so that you will know the exact content of what you are required to sign: however, it is important to note that only the Italian version of the Contract will be legally binding. Our professional fees … All our lawyers in the London office are regulated by strict rules of conduct imposed by the Law Society (England and Wales) and we have professional indemnity insurance of£5,000,000 for your extra peace of mind. You can rest assured that we will constantly strive to provide you with the highest level of service possible.”
“Re: Due Diligence Report – “Jewel of the Sea”
“Giambrone & Law has independently carried out the due diligence in relation to the Real Estate Residential Complex known as “Jewel of the Sea” in Calabria (Italy), promoted by VFI Overseas Properties Real Estate Agent Limited, and has also carried out a multiple object investigation aiming at determining the feasibility of the targeted purchase and at reviewing the clauses of the “Contratto Preliminare di Compravendita Immobiliare” (Preliminary Sale Agreement for Immovable Property) prior to exchange between the client and the Vendor.”
“We write with reference to the above transaction to acknowledge safe receipt of the deposit in our client account. We confirm your instructions to release the exact funds received in our client account to the Vendor upon receipt of their signed copy of the preliminary contract and the issue of a bank loan guarantee in compliance with Italian Decree 122/05.”
“My first concern with proceeding by analogy with tort is that it overlooks the unique foundation and goals of equity. The basis of the fiduciary obligation and the rationale for equitable compensation are distinct from the tort of negligence and contract. In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently, the law seeks a balance between enforcing obligations by awarding compensation and preserving optimum freedom for those involved in the relationship in question, communal or otherwise. The essence of a fiduciary relationship, by contrast, is that one party pledges herself to act in the best interest of the other. The fiduciary relationship has trust, not self-interest, at its core, and when breach occurs, the balance favours the person wronged.”
“I agree with the view of Professor David Hayton, in his chapter “Unique Rules for the Unique Institution, the Trust” in Degeling & Edelman (eds), Equity in Commercial Law (2005), pp 279-308, that in circumstances such as those in Target Holdings the extent of equitable compensation should be the same as if damages for breach of contract were sought at common law. That is not because there should be a departure in such a case from the basic equitable principles applicable to a breach of trust, whether by a solicitor or anyone else. (If there were a conflict between the rules of equity and the rules of the common law, the rules of equity would prevail by reason ofsection 49(1) of the Senior Courts Act 1981 , derived from the provisions of theSupreme Court of Judicature Act 1875 (38 & 39 Vict c 77).) Rather, the fact that the trust was part of the machinery for the performance of a contract is relevant as a fact in looking at what loss the bank suffered by reason of the breach of trust, because it would be artificial and unreal to look at the trust in isolation from the obligations for which it was brought into being. I do not believe that this requires any departure from proper principles.”
“My analysis accords with the reasoning of Lord Reed JSC and with his general conclusions, at paras 133-138. Equitable compensation and common law damages are remedies based on separate legal obligations. What has to be identified in each case is the content of any relevant obligation and the consequences of its breach. On the facts of the present case, the cost of restoring what the bank lost as a result of the solicitors’ breach of trust comes to the same as the loss caused by the solicitors’ breach of contract and negligence.”
“135. The measure of compensation should therefore normally be assessed at the date of trial, with the benefit of hindsight. The foreseeability of loss is generally irrelevant, but the loss must be caused by the breach of trust, in the sense that it must flow directly from it. Losses resulting from unreasonable behaviour on the part of the claimant will be adjudged to flow from that behaviour, and not from the breach. The requirement that the loss should flow directly from the breach is also the key in determining whether causation has been interrupted by the acts of third parties. The point is illustrated by the contrast between Caffrey v Darby, where the trustee’s neglect enabled a third party to default on payments due to the trust, and Canson Enterprises, where the wrongful conduct by the third parties occurred after the plaintiff had taken control of the property, and was unrelated to the defendants’ earlier breach of fiduciary duty. 136. It follows that the liability of a trustee for breach of trust, even where the trust arises in the context of a commercial transaction which is otherwise regulated by contract, is not generally the same as a liability in damages for tort or breach of contract. Of course, the aim of equitable compensation is to compensate: that is to say, provide a monetary equivalent of what has been lost as a result of a breach of duty. At that level of generality, it has the same aim as most awards of damages for tort or breach of contract. Equally, since the concept of loss necessarily involves the concept of causation, and that concept in turn inevitably involves a consideration of the necessary connection between the breach of duty and a postulated consequence (and therefore of such questions as whether a consequence flows “directly” from the breach of duty, and whether loss should be attributed to the conduct of third parties, or to the conduct of the person to whom the duty is owed), there are some structural similarities between the assessment of equitable compensation and the assessment of common law damages. 137. Those structural similarities do not however entail that the relevant rules are identical: as in mathematics, isomorphism is not the same as equality. As courts around the world have accepted, a trust imposes different obligations from a contractual or tortious relationship, in the setting of a different kind of relationship. The law responds to those differences by allowing a measure of compensation for breach of trust causing the loss to the trust fund which reflects the nature of the obligation breached and the relationship between the parties. In particular, as Lord Toulson explains at para 71, where a trust is part of the machinery for the performance of a contract, that fact will be relevant in considering what loss has been suffered by reason of a breach of the trust.”
“The defendant knew that he was a trustee of the money for the society; but he did not realise that he had misled the society and could not know that his authority to complete had determined (if indeed it had). He could not be bound to repay the money to the society so long as he was ignorant of the facts which had brought his authority to an end, for those are the facts which are alleged to affect his conscience and subject him to an obligation to return the money to the society.”
“As has already been indicated (see paragraphs 257 – 263), I am satisfied that the firm realised by no later than April 2009 (if, which I doubt, it had not realised before) that it should have told the claimants at the outset about this division. This could be the only explanation for the pretence maintained in about April/May 2009 (because pretence is what it was) that it had only recently discovered that the level of commission received by VFI was as it was then acknowledged to be.”
“However, as I perceive it, the substantive claim made by the claimants arising on the basis of the Mandates is the knowledge they demonstrate that the firm had at the outset about the levels of commission. The claim advanced is that, in breach of duty, the firm failed to reveal it to the individual claimants prior to signing the preliminary contract. That claim could only be advanced when a claimant knew or ought reasonably to have known the fact that the firm knew about this at the outset, but did not reveal it to the claimants, and the letter of29 April 2009 , which revealed the level of the commission, contained the pretence that the firm had only recently discovered it. … In my judgment, a fundamental fact underlying the cause of action based upon the failure to reveal the commissions was suppressed deliberately on29 April 2009 and the full truth was not revealed until the Mandates were revealed later.”
“I think that one can to some extent generalise the principle upon which this response depends. It is that a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action. He is responsible only for the consequences of the information being wrong. A duty of care which imposes upon the informant responsibility for losses which would have occurred even if the information which he gave had been correct is not in my view fair and reasonable as between the parties. It is therefore inappropriate either as an implied term of a contract or as a tortious duty arising from the relationship between them. The principle thus stated distinguishes between a duty to provide information for the purpose of enabling someone else to decide upon a course of action and a duty to advise someone as to what course of action he should take. If the duty is to advise whether or not a course of action should be taken, the adviser must take reasonable care to consider all the potential consequences of that course of action. If he is negligent, he will therefore be responsible for all the foreseeable loss which is a consequence of that course of action having been taken. If his duty is only to supply information, he must take reasonable care to ensure that the information is correct and, if he is negligent, will be responsible for all the foreseeable consequences of the information being wrong.”
“73. It seems to me that the primary question raised by this appeal is as to the scope of Wikborg Rein's duty. It may be that in the context of contract that might have to be rephrased as a question of assumption of responsibility, but the Saamco line of cases shows that English law is prepared to adopt the phraseology of tort, scope of duty, even in cases where there are parallel obligations in contract and tort. I bear in mind that in the present case, which is formally one of Norwegian law, Wikborg Rein's obligation arises only in contract. But the obligation remains one to exercise a duty of care, and it has been common ground in this court, as before Tomlinson J, that it is appropriate to consider the scope of that (contractual) duty in the terms laid down in Saamco and the cases which follow it. 74. In this context, the preliminary question is whether this is a category 1 or category 2 case. Mr Pollock contends for the former, and Mr Railton contends for the latter. In my judgment, however, this is a category 1 case. For these purposes, I am prepared to assume, with Lord Lloyd in Aneco, that category 2 reflects the primary category, and category 1 reflects the exceptional cases. Nevertheless, it seems to me that it is difficult to see Wikborg Rein's duty as being that of a general, as distinct from a specific kind. Wikborg Rein was asked to advise about a specific question, the validity of the proposed swap contracts. It did not have a general retainer to report or notify problems about the proposed transactions. It was not concerned with the creditworthiness of the Kommunes. It warned Depfa that it could not execute a judgment against the Kommunes, so that in that, different, sense, its contractual rights could not ultimately be vindicated or, one might say, be enforced. In such circumstances, Depfa knew that it ultimately relied on the creditworthiness and good faith of the Kommunes: and on those qualities Depfa made up its own mind and was wholly confident. 75. It is of course true that Depfa would not have entered into the transactions at all unless it could be advised that the contracts were valid and within the Kommunes' capacity. In effect, that causal connection between advice and loss goes without saying in all such cases. It is not in itself the reason for finding that the scope of duty concerned embraces all the loss consequential upon entering into the transaction concerned. For these reasons it does not seem to me that it is a sufficient explanation for characterising a case as a category 2 case to say that, without the forthcoming albeit negligent advice, the transaction concerned would not have been "viable". That is simply another way of saying that, if the claimant had not received the advice it did, it would not have entered into the transaction. A lender who is given a negligent overvaluation does not know that his transaction is not viable on the basis of the true value of the property concerned: but if he would not have gone ahead had he known the truth, it is because the transaction was not commercially viable, or not safely so. Alternatively, if he would have gone ahead even on the basis of that true value, for instance because he was content to rest on the safety of the borrower's covenant alone and was not concerned with the passing value of the property, then there has been no reliance and for that separate reason no relevant loss.”
“(1) Where a plaintiff enters into a loss-making transaction in reliance on the defendant's negligent advice, he is not entitled to recover the whole of the loss on the transaction merely because the defendant was aware that he would not have entered into it but for the advice he received. He is liable only for the loss which is due to the advice being wrong. … (2) The court does not ask what would have happened if the defendant had performed his duty and stated the true facts (in which event the transaction would not have gone ahead at all). This is not the basis of the defendant's liability. (3) The correct measure of damages is not the difference between the loss which has in fact occurred (the loss on the transaction) and the loss which would have occurred if the defendant had performed his duty and stated the facts correctly (which would have been zero since the transaction would not have gone ahead). This would not exclude the loss which ought to be irrecoverable. They are measured by the difference between the loss on the transaction and the loss which would have been sustained if the facts had been as the defendant represented them to be (when the transaction would still have gone ahead). (4) The case is different where the defendant assumed responsibility for advising generally what course of action to take in relation to a particular transaction. But it is necessary to identify the transaction in question, for he is not liable for loss arising from some other transaction even though it may be linked with it, particularly if it called for the exercise of a different professional judgment. A broker should not lightly be assumed to undertake responsibility for an underwriting decision. (5) The defendant's liability is measured by the scope of his duty. Accordingly, where the complaint is that he failed to report or give any advice at all on a particular matter, the plaintiff must prove that he was under a legal obligation to do so. It is not enough that he would probably have volunteered the information if asked.”