Execution of Documents Flashcards
ROWA 1995
Requirements of Writing (Scot) Act 1995
What are the 4 parts of the ROWA 1995?
Part 1 (s 1) When writing is required
Part 2 (ss 1A-9) Traditional documents
Part 3 (ss 9A-9G) Electronic documents
Part 4 (ss 10-15) General provisions
When is formal writing required? (in reference to property law)
s1 (2)
(C) - Creation, transfer, variation or extinction of real rights in LAND (s 1(2(b))
(D) Contract of promise for (C) (s 1(2)(a)(i))
(E) Gratuitous promise, except in the course of business (s 1(2)(a)(ii)).
What kind of writing is required?
s 1(2)
a traditional document complying with s 2 or an electronic document complying with s 9B
What happens when writing is not provided when required?
the purported right is void
What is a traditional document?
A document written on paper or some other tangible
surface. Under ROWA 1995 part 2 they need to be
signed at the end by the person granting the document.
What is an electronic document?
A document created in electronic form. Under ROWA
1995 part 3 there needs to be an electronic signature by the person granting the document.
What does it mean to subscribe a document?
Sign it at the end
Where can you find what methods to sign?
ROWA 1995 s 7(2)
Is an illegible signature valid? What is the authority on this?
An illegible signature is valid but not probative.
Stirling Stuart v Stirling Crawfurd’s Trs (1885)
Do the person executing and the granter need to be in the same place?
no. s 10A ROWA 1995
What does probative mean?
presumed to be validly executed.
A sues B on the basis of a probative document A need not prove that the document was validly executed.
What makes a document formally valid?
If it is subscribed according to s 2 ROWA 1995
How do you upgrade a document from formally valid to probative?
have the granter’s subscription witnessed. (attestation)
During attestation what conditions must the witness meet?
ROWA 1995 s 3 (4)(c)
must be over 16, of normal mental capacity and they cannot know the granter, they can also not be another granter (s 3 (4) (b))
What are the steps for executing a probative document?
The granter subscribes usually (s 2) and a witness that meets to conditions is present as the granter signs or the granter acknowledges the signature to the witness.
The witness must sign (not subscribe) immediately after acknowledgment. The witness is added to testing clause by stating their name and address.
When a witness is designed in the testing clause what to they have to state?
Their name (doesn’t have to be full) and address
what does it mean for a signature to be ‘one continuous process’ during attestation?
The witness’s signature must follow the event witnessed (ie either subscription or acknowledgement) immediately.
During attestation, how can acknowledgement be done?
Acknowledgement can be done through words i.e “This is my signature” or actions
How to know when a document is probative?
A document is considered probative if it looks to be validly attested (or equivalent)
How can the validity of a document’s execution be attacked?
s 3(4)
Direct attack - showing evidence that the granter did not subscribe
Indirect - evidence showing attestation (or equivalent) was not properly carried out
How can a local authority achieve probativity ?
attestation or
sealing of the document with official seal by a person of authority on the day of subscription
sch 2 para 4(5)
How can a company make a document probative?
attestation or
having the document subscribed by a second signatory that meets the requirements.
sch 2 para 3(5)
How can an LLP make a document probative?
having it subscribed by 2 members of the LLP
sch 2 para 3A (5)
Why might want to make a document probative?
If the document is long-lasting and subscription must be proved
only probative documents
can be registered in the Land Register, Register of Sasines s6
Why might want to make a document probative?
If the document is long-lasting and subscription must be proved
only probative documents
can be registered in the Land Register, Register of Sasines s6
What makes an electronic document formally valid?
valid if it is authenticated by granter by being signed through an ‘advanced electronic signature’
What makes an electronic document probative?
probative if it has been certified by means of a statement, incorporated into the document, that the
signature is a valid means of establishing the document’s authenticity.
certification is provided, not by the parties, but by a qualified ‘trust service provider (Law Soc of Scot)
How can documents with multiple signatories be executed?
ten people execute ten separate versions (‘counterparts’) of the
same document (s 1(2)). the counterparts are delivered
either to each signatory or – to a person nominated to take delivery, then they are collated
How to turn a improbative document probative?
The granter who is available was acknowledge the signature to a witness who then signs or
an application is made to the sheriff court under s 4 to
have the document endorsed with a certificate stating that it was subscribed by the granter.
How can annexation be incorporated into documents?
s 8 if it is
(a) referred to in the document; and
(b) identified on its face as being the annexation referred to
How can an alteration be treated as part of the document?
If it is made before subscription
How can one prove an alteration was made before subscription?
give (oral) evidence it was made before subscription
for s 3 documents it is stated in the testing clause
(or document) that the alteration was made before subscription
What are bilateral documents?
Documents that are granted and signed by all the parties involved
e.g contracts
What are unilateral documents?
Documents signed and granted by one person. They must be delivered to the grantee
e.g dispositions, standard securities
How are documents to be delivered?
a traditional deed by handing it to the grantee (or agent), whether personally, by post, or by some other means or by electronic delivery of a copy (e.g email attachment)
