Scots contract law
Encyclopedia
Scots contract law governs the rules of contract
in Scotland
.
Contract
is created by bilateral
agreement and should be distinguished from unilateral promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract, i.e. a contract where only one of the parties comes under any duties to the other (e.g. a contract to perform services for no consideration).
A contract is an agreement between two or more parties which creates or intends to create legally biniding obligations between the parties to it.
Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testament
ary provision and an offer will not be a promise.
At common law, a promise had to be proved by writ
or oath
. However, after the introduction of the Requirements of Writing (Scotland) Act 1995, a promise need only be evidenced in writing for:
• the creation, transfer, variation or extinction of an interest in land (s 1(2) (a)(i) of Requirements of Writing (Scotland) Act 1995); and
• a gratuitous unilateral obligation except an obligation undertaken in the course of business (s 1(2) (a)(ii) of Requirements of Writing (Scotland) Act 1995.) [Note that this section has caused great debate amongst academics as to the meanings of "unilateral" and "gratuitous". Some believe that the inclusion of the two terms in this section points to a desire of the drafters that they be given different meanings. This would allow some promises to be unilateral but not gratuitous. This argument was particularly discussed by both Martin Hogg (Edinburgh University) and Joe Thomson
(Glasgow University) in articles for the Scots Law Times
(News) in 1998 and 1997 respectively.
A Contract is formed by the acceptance of an offer.
Variation of the original offer counts as counter - offer.
A leading piece of legislation in Scots Contract Law is the Contract (Scotland) Act 1997. This act includes damages for breach of contract of sale.
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
.
Contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
is created by bilateral
Bilateralism
Bilateralism consists of the political, economic, or cultural relations between two sovereign states. For example, free trade agreements signed by two states are examples of bilateral treaties. It is in contrast to unilateralism or multilateralism, which refers to the conduct of diplomacy by a...
agreement and should be distinguished from unilateral promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract, i.e. a contract where only one of the parties comes under any duties to the other (e.g. a contract to perform services for no consideration).
A contract is an agreement between two or more parties which creates or intends to create legally biniding obligations between the parties to it.
Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testament
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
ary provision and an offer will not be a promise.
At common law, a promise had to be proved by writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
or oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
. However, after the introduction of the Requirements of Writing (Scotland) Act 1995, a promise need only be evidenced in writing for:
• the creation, transfer, variation or extinction of an interest in land (s 1(2) (a)(i) of Requirements of Writing (Scotland) Act 1995); and
• a gratuitous unilateral obligation except an obligation undertaken in the course of business (s 1(2) (a)(ii) of Requirements of Writing (Scotland) Act 1995.) [Note that this section has caused great debate amongst academics as to the meanings of "unilateral" and "gratuitous". Some believe that the inclusion of the two terms in this section points to a desire of the drafters that they be given different meanings. This would allow some promises to be unilateral but not gratuitous. This argument was particularly discussed by both Martin Hogg (Edinburgh University) and Joe Thomson
Joe Thomson
Joseph McGeachy Thomson FRSE is a Scottish lawyer and academic. He has previously served as Regius Professor of Law at the University of Glasgow and as a member of the Scottish Law Commission.-Early life:...
(Glasgow University) in articles for the Scots Law Times
Scots Law Times
The Scots Law Times is the law reports service in Scotland, publishing over 1400 pages of reports each year. Published weekly during court term, the Scots Law Times covers every Scottish court, civil and criminal, from the Sheriff Courts to the House of Lords.Since 2000, the Scots Law Times...
(News) in 1998 and 1997 respectively.
A Contract is formed by the acceptance of an offer.
Variation of the original offer counts as counter - offer.
A leading piece of legislation in Scots Contract Law is the Contract (Scotland) Act 1997. This act includes damages for breach of contract of sale.