Can a party who signed a contract with respect to a property without the consent of the other party to disclaim the property?
Alberta, Canada
The following excerpt is from Sembaliuk v. Sembaliuk, 1983 CanLII 1077 (AB QB):
In 12 Hals. (4th) 550, para. 1371, it is stated that a person cannot “disclaim any state, interest, or right assured to him without his concurrence if he is under some legal or equitable obligation to accept it.” (The italics are mine.) This proposition is supported by the decisions in Re Cary-Elwes’ Contract, [1906] 2 Ch. 143 and Bence v. Gilpin (1868), L.R. 3 Exch. 76. In both of these cases, there was an express agreement to accept the property, and thus the parties could not later disclaim the property in breach of their agreements. However, it is submitted that the obligation to accept the property may arise by consent (as in a contract or trust deed), or it may be imposed by law. No matter the source of the obligation, if it exists, a party may not disclaim.
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