WK 2 - Requirements of Writing (Scotland) Act 1995

Question 1

General rule - s.1 (2)

Answer 1

…writing shall not be required for the constitution of a contract, unilateral obligation or trust.

[Not all contracts must be in writing]

Question 2

Exceptions S.1 (2A) + (3)

Answer 2

Subject to subsections (2A) and (3) below, a written document complying with section 2 of this Act shall be required for -
(a) the constitution of-
(i) a contract or unilateral obligation for the creation, transfer, variation or extinction of a real right in land;
(ii) a gratuitous unilateral obligation except an obligation undertaken in the course of business and
(iii) ……..”

[There are certain contracts, e.g. land or rights, which must be in writing, but not unilateral business obligations !]

Question 3

Acting in reliance with an unwritten contract

Answer 3

S.1(3) -(4) outline a number of steps, and if these are followed then the
parties will be bound:
* Must be an unwritten contract for an interest in land
* One of the parties (A) has acted or refrained from acting in reliance on the contract
* With the knowledge and the silent consent of the other party (B) to the unwritten contract
* With the knowledge and the silent consent of the party (B) to the unwritten contract
* As a result of B’s actions, A has been affected to a material extent
B would not be entitled to withdraw - personal bar