Formation: Formalities Flashcards
What is meant by the term ‘formalities’?
It is the method by which a contract may be made and deals with factors such as the need or lack of need of writing etc.
What does probative mean?
The document is self proving, is an evidential issue (roughly equivalent to an English deed)
What is a signature?
Hand written name of granger by means of pen and ink. Traditional way by which a party indicates their consent to a written document.
What is a simple electronic signature?
A signature created an/or transmitted electronically. No proof real person signed it. Not allowed to be used for lan or one which is to be prohibitive
What is an advanced electronic signature?
A electronic method of stinging contract but guarantees both the identity of the signatory and the integrity of the data.
What is meant by a counterpart?
A copy of a contract
What is an execution in counterpart?
The process by which a contract may be signed (“executed”) by each party signing its own copy and then exchanging it with the other party for that party’s signed counterpart
What is probativity?
When a document is signed by the granger and also a witness. The witness name and address must also be stated.
What is meant by the utilitarian function of the formalities of contract?
There is no general principle of Scots law stating that contracts must be in writing in order to be enforceable as such. However there is good evidential reasons why commercial contracts should be in writing
In Scotland what acts govern the formal requirements of contract?
Requirements of Writing (Scotland) Act 1995 and supplemented by the Legal Writing (Counterparts and Delivery) (Scotland) Act 2015
What does the Requirements of Writing (Scotland) Act 1995 s1(1) state with regards to the general rule of special formalities
“Subject to subsection (2) below and any other enactment writing shall not be required for the constitution of a contract, unilateral obligation or trust.
What documents are written documents required for?
- contracts involving an interest in land
- unilateral gracious obligations
- certain trusts
- wills
What is a notarial execution?
When a granger is blind or unable to write, and so the contract is read to him and then signed by the latter party. As protection against abuse a deed will be deemed invalid on the extent that it confers any benefit in the subscriber or the subscribers family
Wha legal significance does an electronic signature have?
The same statutory presumption as a pen and ink executed and witnessed paper document
What are two forms of written contract English law?
Simple contract and deed
