Formal Invalidity Flashcards
What are the exceptions to the general rule that contracts need not be in writing to be valid and what act governs the rules for formal validity of contracts?
s.1(2)(a) of the Requirements of Writing (Scotland) Act 1995 gives the two exceptions-
-(i) Voluntary obligations relating to real rights in land (missives of property sale and leases longer than 1 year). Real right in land defined by s.1(7) as any real right to occupy or to use land or to restrict the use or occupation of said said land that lasts for more than a year.
-(ii) Gratuitous unilateral obligations except where undertaken in the course of business. Note that gratuitous contracts will always be bilateral as there are two parties involved so does not fit within the exception. The usual interpretation of this section of the act is that gratuitous means that only one party is under an obligation, therefore all promises are by their nature gratuitous, this interpretation is supported by MacQueen and Hogg. As an obligation is characterised at the point of formation all promises will be gratuitous even if conditional as at the point of formation only the promisor can be obliged to perform and it can only become onerous once performance has taken place. Thomson has argued that gratuitous should have it’s normal meaning (pursuer receives no benefit) meaning that promises are not necessarily gratuitous (for example reward cases) and therefore promises which are onerous don’t fit within the exception.
What type of writing is required by the Writing Requirements (Scotland) Act 1995 for traditional documents required in the circumstances outlined in s.1(2)?
s.2(1) states that the document must be subscribed by the grantor/grantor’s. s.7(1) clarifies that subscription means the document must be signed at the end of the last page.
What section of the Writing Requirements (Scotland) Act 1995 outlines the requirement for an electronic document to be valid in respect of the formalities of execution and what is this requirement?
s.9B(1) states that it must be “authenticated” by the grantor or grantors. s.2 clarifies that a document will be authenticated where the electronic signatures of the grantors are incorporated into or are logically associated with the document, said signature was made by the person who it purports to be made by and the signature satisfies any requirements set out by the Scottish Ministers.
What is necessary for a document to have self proving status and what part of the Requirements of Writing (Scotland Act) 1995 is this set out in?
The effect of s.3(1) of the Act is that if a document is signed by a person acting as a witness of a grantor’s subscription of a traditional document and the documents bears the name and address of the witness a presumption will arise that the document was subscribed by said grantor. This will however not be the case where something else in the document indicates that the grantor did not sign.
What section of the Requirements of Writing Act provide for the subscription of a traditional document on behalf of a blind person or a person unable to write?
s.9(1) allows a person to subscribe a document on behalf of a person unable to do so himself so long as that person has read said document out to the grantor or the grantor makes a declaration that he does not require him to do so.
What is the significance of Regus (Maxim) Ltd v Bank of Scotland Plc 2013 CSIH?
The court confirms that
What is the significance of the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015?
s.4 allows a subscribed traditional document to be delivered electronically so long as the recipient has agreed to this means of delivery and retain conformance with the subscription requirements. As a minimum the signature page must be delivered. The Act also allows contracts to be signed and executed by multiple people in separate locations and allows a single nominee to take delivery of all the counterpart documents signed by each grantor.
