Head 1: Execution of Deeds Flashcards
What does s1 of the RWSA 1995 provide for?
The general rule that writing is not required for the constitution of a contract, unilateral obligation or trust.
REMEMBER: 1995 Act applies to deeds executed on or after 1 August 1995.
What does s2 of the RWSA 1995 provide for?
- The is a qualification to the general rule e.g. contracts for “creation, transfer, variation or extinction of a real right in land”
- Lists different situations in which writing must be used (and providing for the form of writing required: “a written document complying with section 2 of this Act”)
What are the 6 juridicial acts which require writing under s.1(2)?
(A) Wills and codicils (s 1(2)(c)).
(B) Creation, transfer, variation or extinction of real right in land
⁃ otherwise by the operation of a court decree, enactment or rule of law (rule of the common law, for example it is sometimes possible to extinguish a right without writing).
(C) Contract or promise (“unilateral obligation”) for (B) (s 1(2)(a)(i)).
⁃ Standard example is a contract for the sale of land (usually known as missives of sale). The contract for the sale of land must be in writing in accordance with s 1(2)(a)(i)
(D) Gratuitous promise, except in the course of business (s 1(2)(a)(ii)).
(E) Truster-as-trustee trust (s 1(2)(a)(iii)).
What is the definition of a “real right in land”?
- s 1(7) - this gives a definition of a ‘real right in land’ as ‘any real right in or over land, including any right to occupy or to use land or to restrict the occupation or use of land but does not include:
⁃ A tenancy
⁃ A right to occupy or use land; or
⁃ A right to restrict the occupation or use of land if the tenancy or right is not granted for more than one year etc.
What are the consequences if formal writing not used when required?
⁃ In general the purported right is void. But in the case of contracts, promises and trusts (only) the right is valid in cases where the person seeking to deny the contract etc is personally barred as a result of the actings of the other party (s 1(3)-(5)).
⁃ Personal bar does not apply to s 1(2)(b) or (c) - the creation etc of real rights.
What is a deed?
A ‘deed’ is a juridical act constituted in writing - a document which has legal effect.
How are deeds classified? Give examples.
Deeds are often classified as either inter vivos or mortis causa deeds.
1. Inter vivos deeds are those granted by persons during their life and which take effect during their life. Mainly: ⁃ Disposition ⁃ Assignation ⁃ Standard security ⁃ Lease
- Testamentary (Mortis causa) deeds are granted by persons during their life but which only take effect on death. Mainly:
⁃ Wills.
- Assignation standard security lease (bilateral)
- Trust disposition and settlement codicil
What is the requirement for the formal validity of traditional documents?
- s 2 RWSA 1995 requires that documents which require writing [under s 1(2)] shall only be valid if they have been subscribed by the grantor of the document. If there is more than one grantor then the document must be subscribed by each grantor.
- Since most deeds are unilateral it is only the grantor who is required to subscribe the documents.
[s2(1) No document required by section 1(2) of this Act shall be valid in respect of the formalities of execution unless it is subscribed by the granter of it or, if there is more than one granter, by each granter, but nothing apart from such subscription shall be required for the document to be valid as aforesaid.]
How must the offer and acceptance be subscribe in a contract or unilateral obligation for the creation, transfer, variation or extinction of a real right in land?
In contracts constituted by offer and acceptance, both the offer and the acceptance must be so subscribed by the granter or granters thereof (as in s2) (s 2(2)).
[s2(2) A contract mentioned in section 1(2)(a)(i) of this Act may be regarded as constituted or varied (as the case may be) if the offer is contained in one or more documents and the acceptance is contained in another document or other documents, and each document is subscribed by the granter or granters thereof.]
What does subscription mean? In which provision is this? [Must know all of this!!]
Subscription (this means writing underneath) is provided for by s 7 RWSA.
**Section 7 RWSA 1995
(1) Except where an enactment expressly provides otherwise, a document is subscribed by a granter of it if it is signed by him at the end of the last page (excluding any annexation*, whether or not incorporated in the document as provided for in section 8 of this Act).
…
[Multiple granters] (3) Where there is more than one granter, the requirement under subsection (1) above of signing at the end of the last page of a document shall be regarded as complied with if at least one granter signs at the end of the last page and any other granter signs on an additional page.
- *
- Legal documents are often drafted with appendices or schedules annexed at the end (like schedules in a statute). When s 7(1) refers to annexation, it is these schedules and appendices which are being referred to. It is the document proper to be signed, not the appendices.
- If there are multiple grantors then each granter must sign.
What if there is not enough physical space for all the granters to sign at the bottom of the document?
This is dealt with expressly by section 7 (3): as long as one granter signs at the end of the last page
and all the other granters sign on an additional page.
What is the special position of the Queen?
The Queen has a special position in which she can superscribe rather than subscribes (this means she signs at the top of the document rather than the bottom).
This is provided for by s 13(1)(a)
Does the signature have to be legible? Which case litigated this principle?
Signature need not be legible:
⁃ This has been litigated a number of times; one example is Stirling Stuart v Stirling Crawfurd’s Trs (1885) 12 R 610:
⁃ It was held in this case, and has been held in other cases, that illegibility is not in itself a reason for denying legal effect to a signature.
⁃ However, there are certain rules concerning what a signature must consist of. If a signature is illegible it may be difficult to know whether the rules have been complied with or not, and therefore difficult to know whether it is valid signature or not. The practical effect of all this is that clients should be encouraged to sign legibly.
Do you have to sign a traditional document yourself?
A person may appoint an agent to execute the deed on his behalf. The agency need not be in writing, although often it is created by a formal power of attorney (S 12 (2)).
Additionally, under section 9, if a person is blind or unable to write, the deed may be executed on his behalf by a solicitor or advocate or justice of the peace or
sheriff clerk. This is sometimes known, misleadingly, as notarial execution. The procedure is set
out in s 9 and Sched 3.
A blind person is entitled to sign on his own (s 9(7)).
What is the difference between the power of attorney method and section 9 for having someone else sign for you?
The difference between the power of attorney method and section 9 is that under section 9 persons do not need to appoint someone; a person is appointed by the law to sign for that person.