Head 2 - execution of documents Flashcards
What is the governing legislation?
The Requirement of Writing (Scotland) 1995
ROW(S)A 1995
When is formal writing required?
Juridicial acts mostly need formal writing, however if something is not on the list in section 1 ROW(S)A 1996 then writing is not needed
Main reasons for juridical acts to be in writing
The main reasons are to impress on parties the seriousness of the juridical act,
to provide evidence of the juridical act to prevent later disputes,
to reduce fraud (signatures being hard to forge),
and to allow registration in registers such as the Land Register.
What kind of writing is needed?
According to ROW(S)A 1995, s1(2), it must be a traditional document complying with s2, or an electronic document complying with s9B.
Thus, it’s a free choice, although most opt for a traditional document.
What happens if ‘formal’ writing (i.e., a traditional/electronic document) is not used when it is required?
Usually, the purported right would be void.
Still, in the case of contracts, promises, and trusts, 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.
What is subscription, and why is it important?
Subscription is a key concept in the Act, and to subscribe, one must sign at the end of the document.
Only the king superscribes at the top.
Section 7(2) explains how to sign.
To be probative, something must further be done.
What is the difference between a probative and an improbative document?
A document which is merely subscribed under s 2 is valid but improbative.
For a document to be probative, something further must be done. Probative means presumed to be validly executed, which is presumed from the law of evidence, and is important mainly in the context of litigation.
What is annexation, and what must be done to count it as part of a document?
Annexation refers to something, such as a schedule or plan, which comes at the end of the document proper.
Despite coming after the signature, an annexation can be counted as part of a document, but only if it is ‘incorporated’ in it.
How can a document be made probative if it was executed by simple subscription under s 2?
A granter who is still alive and readily available can acknowledge the subscription to a witness who can then sign.
The document is then probative by attestation under s 3.
Alternatively, an application can be made to the sheriff court under s 4 to have the document endorsed with a certificate stating that it was subscribed by the granter.
What is a unilateral document, and how is it different from a bilateral document?
A unilateral document is granted (and signed) by one person or persons in favour of another person or persons.
Deeds used in conveyancing, such as dispositions, standard securities, and assignations, are typically unilateral.
Unlike bilateral documents, a unilateral document does not take effect simply by being signed.
It also has to be delivered to the grantee (or to an agent, such as a solicitor, acting on the grantee’s behalf).
What is electronic delivery, and how does it differ from physical delivery?
The Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 allows delivery by means of electronic delivery of a copy (e.g., as an email attachment).
An electronic deed is delivered electronically. Where electronic delivery is used, it must be done in a manner to which the recipient has agreed, or failing agreement, by a method which is ‘reasonable in all the circumstances.’
So electronic delivery is rather more precarious than physical delivery.
How do you make a document valid and probative?
- Probativity by attestation (the normal way to upgrade from formal validity to probativity is to have the grantees subscription witnessed. The relevant rules are in section3
The 5 steps in the procedure for probativity
- The granter subscribes in the usual way, s 3(1)(a), but without using method (c) in s 7(2).
- A witness is to hand.
- The granter must either sign in the witness’s presence, or (having signed earlier) the granter must acknowledge the signature to the witness (s 3(7)).
- The witness signs
- The witness is ‘designed’ in the testing clause
How does a juristic granter attain probativity?
- In the case of local authorities and of bodies corporate, by sealing the document with the common (official) seal
- In the case of the UK companies, by having the document subscribed by a second signatory
- In the case of Limited Liability partnerships (LLP), by having the document subscribed by 2 members of the LLP
Can alterations be made to a document?
- An alteration made after subscription is not part of the document, it will be ignored. The granter must execute a fresh document
- An alteration made before subscription is treated as part of the document
