lesson 1

Question 1

Definition of a Promise

Answer 1

• “A promise can be defined as a declaration of will whereby a person, having the capacity to make it, in the form demanded by law, makes known their serious intention to render performance (of act[s] which are not trifling, indeterminate, impossible, or illegal) to some other person, without any reciprocal undertaking from that other person.”
• Example case: MacFarlane v Johnston (1864) 2M. 1210 (Promise is binding without acceptance)

Question 2

Definition of a Contract

Answer 2

• “A contract can be defined as an agreement between two or more persons having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal.” - MacQueen and Thomson
• Example case: McNeill v Aberdeen City Council (No.2) [2013] CSIH 102 (Mutual consent required)

Question 2

Key Differences Between Promise and Contract

Answer 2

• Promise: Unilateral obligation; no acceptance required; binding once declared.
• Contract: Bilateral/multilateral obligation; requires acceptance; binding only upon agreement.

Question 3

Essential Prerequisites for Both Promise and Contract

Answer 3

• Legal capacity of parties
• Compliance with formalities (if required)
• Performance must not be trifling, indeterminate, impossible, or illegal

Question 4

Types of Obligations

Answer 4

• Voluntary Obligations: Created by acts of will (Promise, Contract)
• Involuntary Obligations: Imposed by law (Delict, Unjustified Enrichment, Negotiorum Gestio)

Question 5

Formation of a Promise

Answer 5

• Clear words are generally required (e.g., “I promise”, “I oblige myself to…”)
• Example cases:
• Regus (Maxim) Ltd. v Bank of Scotland Plc - Clear words rule established
• Royal Bank of Scotland v Carlyle - Clear intention inferred from context

Question 6

Engagement in Scots Law

Answer 6

• Three steps in the will to create obligations:
• Desire (interest in acting)
• Resolution (decision to act)
• Engagement (binding commitment to act)
• Example case: Sim v Howat [2011] CSOH 115 (Emphasized engagement’s binding nature)

Question 7

Promise and Contract in Commercial Contexts

Answer 7

• Commercial agreements are interpreted objectively, based on how a reasonable recipient would understand the terms.
• Example case: Ballast Plc v Laurieston Properties Ltd [2005] CSOH 16

Question 8

Unilateral vs Bilateral Obligations

Answer 8

• Unilateral: One party bound by obligation (e.g., a promise)
• Bilateral/Multilateral: Multiple parties are bound by mutual obligations (e.g., contracts)