Breach of Missives—remedies in Scotland
Produced in partnership with Alistair Drummond, Tony Holloran, Vladimir Kucera and Scott Traynor of DLA Piper Scotland LLP
Last updated on 24/07/2020

The following Property Disputes practice note produced in partnership with Alistair Drummond, Tony Holloran, Vladimir Kucera and Scott Traynor of DLA Piper Scotland LLP provides comprehensive and up to date legal information covering:

  • Breach of Missives—remedies in Scotland
  • Missives
  • Breach of missives
  • Withholding performance
  • Re-negotiation
  • Rescission
  • Damages
  • Specific implement

Breach of Missives—remedies in Scotland

Missives

The most common form of contract in Scottish property transactions are missives of sale, see for example, the Property Standardisation (PSG) PSG—Offers.

The contract is formed by parties (or more commonly their agents) exchanging letters of offer and acceptance which together form the missives. Typically, there may be several formal letters passing between the parties before delivery of a final unqualified acceptance which concludes the bargain, see further: The offer: Missives [3.07].

When missives are concluded a legally binding contract is formed. The contract can equally be effected by a sale and purchase agreement between the parties. Where one party then fails to perform the obligations, this may amount to a breach of contract which entitles the other party to a legal remedy. For further information, see Commentaries: What are missives?: Conveyancing Practice in Scotland [6.2] and The de plano acceptance: Conveyancing Practice in Scotland [6.5].

Breach of missives

As missives are a form of contract, the standard legal remedies for breach of contract are available (see Commentary: Classification of remedies: Stair Memorial Encyclopaedia [2]). These operate subject to any express or implied provisions in the missives.

The parties’ respective obligations are set out in the missives. There are in addition, a number of obligations imposed by common law on:

  1. the seller including:

    1. the delivery or exhibition of a valid marketable title to the property within

Related documents:
Key definition:
Delivery definition
What does Delivery mean?

Delivery is defined in the Sale of Goods Act 1979, s 61(1) as the 'voluntary transfer of possession from one person to another' which is the point in time when the parties can be seen to have agreed that the legal right to possession of the goods passes from the seller to the buyer. A distinction must be made between the transfer of possession/delivery and the passing of title/ownership.

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