Key differences between Scots law and English law for construction lawyers
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The following Construction practice note produced in partnership with CMS provides comprehensive and up to date legal information covering:

  • Key differences between Scots law and English law for construction lawyers
  • Assignment/Assignation
  • Dispute resolution
  • Litigation
  • Arbitration
  • Adjudication
  • Enforcement mechanisms
  • Attachment
  • Arrestment
  • Inhibition
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Key differences between Scots law and English law for construction lawyers

This Practice Note highlights key differences between the law in Scotland and England from the perspective of an English lawyer practising in the area of Construction law. Terminology differences are not addressed in this Practice Note.

Assignment/Assignation

In England, there are two types of assignment, legal and equitable assignment. In Scotland, there is no concept of equitable assignment. The transfer of incorporeal property, such as rights arising under a contract, is known as assignation. It is a two-stage process. The first stage is an agreement to transfer the property which creates a personal right in the property. A personal right is one against another person for the performance of an obligation, in this case, the performance of transferring the property. The second stage is conveyance (the actual transfer of legal title), which creates a real right in the property when notice has been given to the other party of the assigned contract.

In England, it is not possible to assign obligations under a contract without the consent of the party entitled to enforce the obligations. Instead, a tripartite agreement with the other party to the contract is required to transfer the future obligation; known as a novation agreement.

In Scotland, there is differing opinion as to whether obligations, as well as rights, under a contract can be assigned.

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