Execution of documents under Scots law
Produced in partnership with Pamela Todd, Partner of Harper Macleod LLP
Execution of documents under Scots law

The following Commercial guidance note Produced in partnership with Pamela Todd, Partner of Harper Macleod LLP provides comprehensive and up to date legal information covering:

  • Execution of documents under Scots law
  • Contracts or obligations that must be in writing
  • Valid execution is by subscription
  • Self-proving execution—adding a witness
  • Scottish property registers
  • Delivery required for a document to be effective
  • Date of the document and date of delivery of the document
  • Physical delivery still required in most cases
  • Counterpart execution—Scotland

The rules regarding execution of documents governed by the laws of Scotland are contained in:

  1. the Requirements of Writing (Scotland) Act 1995 (RW(S)A 1995), and

  2. the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 (LW(CD)(S)A 2015)

This Practice Note considers both the traditional method of execution and execution by counterpart under Scots law.

Contracts or obligations that must be in writing

In Scotland, the general rule is that writing is not required to create a contract or a unilateral obligation or a trust.

Writing is required for the following exceptions to that general rule:

  1. contracts or unilateral obligations to create, transfer, vary or end a real right in land (excluding tenancies or rights of occupation for less than a year and private residential tenancies)

  2. creating, transferring, varying or ending a real right in land

  3. an agreement between adjoining owners to vary their mutual boundary

  4. a gratuitous unilateral obligation (other than one in the course of business) and

  5. a person making a will or becoming trustee of their own property

The remainder of this Practice Note relates to what is required for execution of documents for such excepted categories where a hard copy physical document, is to be signed. See also, Practice Note: Virtual execution under Scots law.

Valid execution is by subscription

Valid execution is achieved by the party (in the case