Requirements of Writing (Scotland) Act 1995
| Year | 1995 |
Requirements of Writing(Scotland) Act 1995
1995 CHAPTER 7
An Act to reform the law of Scotland with regard to the requirement of writing for certain matters and the formal validity of contractual and other documents and presumptions relating thereto; to abolish any rule of law restricting the proof of any matter to writ or oath and to abolish the procedure of reference to oath; and for connected purposes.
[1st May 1995]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Writing required for certain contracts, obligations, trusts, conveyances and wills.
(1) Subject to subsection (2) below and any other enactment, writing shall not be required for the constitution of a contract, unilateral obligation or trust.
(2) Subject to subsection (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 an interest in land;
(ii) a gratuitous unilateral obligation except an obligation undertaken in the course of business; and
(iii) a trust whereby a person declares himself to be sole trustee of his own property or any property which he may acquire;
(b) the creation, transfer, variation or extinction of an interest in land otherwise than by the operation of a court decree, enactment or rule of law; and
(c) the making of any will, testamentary trust disposition and settlement or codicil.
(3) Where a contract, obligation or trust mentioned in subsection (2)(a) above is not constituted in a written document complying with section 2 of this Act, but one of the parties to the contract, a creditor in the obligation or a beneficiary under the trust (‘the first person’) has acted or refrained from acting in reliance on the contract, obligation or trust with the knowledge and acquiescence of the other party to the contract, the debtor in the obligation or the truster (‘the second person’)—
(a) the second person shall not be entitled to withdraw from the contract, obligation or trust; and
(b) the contract, obligation or trust shall not be regarded as invalid,
on the ground that it is not so constituted, if the condition set out in subsection (4) below is satisfied.
(4) The condition referred to in subsection (3) above is that the position of the first person—
(a) as a result of acting or refraining from acting as mentioned in that subsection has been affected to a material extent; and
(b) as a result of such a withdrawal as is mentioned in that subsection would be adversely affected to a material extent.
(5) In relation to the constitution of any contract, obligation or trust mentioned in subsection (2)(a) above, subsections (3) and (4) above replace the rules of law known as rei interventus and homologation.
(6) This section shall apply to the variation of a contract, obligation or trust as it applies to the constitution thereof but as if in subsections (3) and (4) for the references to acting or refraining from acting in reliance on the contract, obligation or trust and withdrawing therefrom there were substituted respectively references to acting or refraining from acting in reliance on the variation of the contract, obligation or trust and withdrawing from the variation.
(7) In this section ‘interest in land’ means any estate, interest or 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) a tenancy;
(b) a right to occupy or use land; or
(c) a right to restrict the occupation or use of land,
if the tenancy or right is not granted for more than one year, unless the tenancy or right is for a recurring period or recurring periods and there is a gap of more than one year between the beginning of the first, and the end of the last, such period.
(8) For the purposes of subsection (7) above ‘land’ does not include—
(a) growing crops; or
(b) a moveable building or other moveable structure.
2 Type of writing required for formal validity of certain documents.
(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.
(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.
(3) Nothing in this section shall prevent a document which has not been subscribed by the granter or granters of it from being used as evidence in relation to any right or obligation to which the document relates.
(4) This section is without prejudice to any other enactment which makes different provision in respect of the formalities of execution of a document to which this section applies.
3 Presumption as to granter's subscription or date or place of subscription.
(1) Subject to subsections (2) to (7) below, where—
(a) a document bears to have been subscribed by a granter of it;
(b) the document bears to have been signed by a person as a witness of that granter's subscription and the document, or the testing clause or its equivalent, bears to state the name and address of the witness; and
(c) nothing in the document, or in the testing clause or its equivalent, indicates—
(i) that it was not subscribed by that granter as it bears to have been so subscribed; or
(ii) that it was not validly witnessed for any reason specified in paragraphs (a) to (e) of subsection (4) below,
the document shall be presumed to have been subscribed by that granter.
(2) Where a testamentary document consists of more than one sheet, it shall not be presumed to have been subscribed by a granter as mentioned in subsection (1) above unless, in addition to it bearing to have been subscribed by him and otherwise complying with that subsection, it bears to have been signed by him on every sheet.
(3) For the purposes of subsection (1)(b) above—
(a) the name and address of a witness may be added at any time before the document is—
(i) founded on in legal proceedings; or
(ii) registered for preservation in the Books of Council and Session or in sheriff court books; and
(b) the name and address of a witness need not be written by the witness himself.
(4) Where, in any proceedings relating to a document in which a question arises as to a granter's subscription, it is established—
(a) that a signature bearing to be the signature of the witness of that granter's subscription is not such a signature, whether by reason of forgery or otherwise;
(b) that the person who signed the document as the witness of that granter's subscription is a person who is named in the document as a granter of it;
(c) that the person who signed the document as the witness of that granter's subscription, at the time of signing—
(i) did not know the granter;
(ii) was under the age of 16 years; or
(iii) was mentally incapable of acting as a witness;
(d) that the person who signed the document, purporting to be the witness of that granter's subscription, did not witness such subscription;
(e) that the person who signed the document as the witness of that granter's subscription did not sign the document after him or that the granter's subscription or, as the case may be, acknowledgement of his subscription and the person's signature as witness of that subscription were not one continuous process;
(f) that the name or address of the witness of that granter's subscription was added after the document was founded on or registered as mentioned in subsection (3)(a) above or is erroneous in any material respect; or
(g) in the case of a testamentary document consisting of more than one sheet, that a signature on any sheet bearing to be the signature of the granter is not such a signature, whether by reason of forgery or otherwise,
then, for the purposes of those proceedings, there shall be no presumption that the document has been subscribed by that granter.
(5) For the purposes of subsection (4)(c)(i) above, the witness shall be regarded as having known the person whose subscription he has witnessed at the time of witnessing if he had credible information at that time of his identity.
(6) For the purposes of subsection (4)(e) above, where—
(a) a document is granted by more than one granter; and
(b) a person is the witness to the subscription of more than one granter,
the subscription or acknowledgement of any such granter and the signature of the person witnessing that granter's...
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