requirements of writing Flashcards
(30 cards)
What is the default position regarding contracts in Scots law?
Contracts do not need to be in writing to be legally enforceable as long as the parties are in agreement and intend to create legal relations.
What is the most important statute regarding writing requirements in Scots law?
The Requirements of Writing (Scotland) Act 1995 (RoWSA).
What does the RoWSA specify?
It specifies which deeds must be in writing and the formalities for their execution and probativity.
When is writing non-negotiable in Scots law?
Writing is non-negotiable in land rights, consumer contracts, and employment contracts.
What is personal bar in Scots law?
An exception to the rule that protects people who acted in good faith.
What is the two-stage test for personal bar?
- Reliance and knowledge: actions must be real and known by the other party. 2. Material impact: there must be a substantial impact.
What must be proven for personal bar to apply?
Both sides must have intended the agreement legally.
What does S1 of RoWSA state?
Writing shall not be required for the constitution of a contract, unilateral obligation, or trust, subject to certain exceptions.
What are the exceptions where writing is required according to section 1(2)(a)?
- Creation, transfer, variation, or extinction of a real right in land. 2. Gratuitous unilateral obligation except in the course of business.
What defines a traditional document?
Documents written on paper, parchment, or similar tangible surfaces.
What defines an electronic document?
Documents created in electronic form rather than on paper or similar surfaces.
What is a qualified signature?
A further digital qualification for electronic documents.
What is an advanced electronic signature?
The most important type of electronic signature.
What does section 1(3) of RoWSA state about personal bar?
It allows a contract to be upheld that would otherwise fail due to lack of formalities if one party has acted in reliance on the contract with the other party’s knowledge.
What does the case Booth v Donald illustrate?
It illustrates personal bar where one party acted in reliance on a contract that was not in writing.
What does the case Khaliq v Londis (Holdings) Ltd demonstrate?
It demonstrates that a party may not be negatively impacted if they own both buildings involved in a contract.
What is required for writing to be valid?
Writing must be subscribed or authenticated.
What is the difference in subscription for traditional and electronic documents?
Traditional documents must be subscribed by the granter(s), while electronic documents must be authenticated.
What does execution in counterpart mean?
Each party may sign a different copy of the same document, which are then considered the same document.
What is probativity in the context of documents?
A document can be contested for legitimacy and may need to be proved.
What makes traditional documents probative?
They are probative if signed by the granter, include a witness signature, or show no indication of improper signing.
What makes electronic documents probative?
They are probative if authenticated by the granter and show no indication of improper authentication.
What is the significance of Jarvis v Swan Tours?
It establishes that terms in a brochure can be incorporated into a contract and lead to breach of contract claims.
How can unnegotiated terms be included in a contract?
By signature, notice/reference at the time of contracting, or in the course of dealing between parties.
