Engaging with Engagement: Analysing the Formation of Promises, Contracts and Voluntary Obligations in Scots Law

The Scottish Law Commission (SLC) has proposed that the law pertaining to the formation of voluntary obligations should be significantly reformed. If their recommendations are enacted, it is thought that the resultant legislative changes would be harmful to the coherence of Scots law as an ordered legal system. This is because the enquiry, consultation and report undertaken and produced by the SLC were each limited in their scope to a consideration of ’contract law’. This fails to appreciate the fact that Scotland, properly speaking, does not have an isolated and sequestered ’law of contract’ as many other jurisdictions do, but rather a rational, ordered and unitary ’law of voluntary obligations’. This law of ’voluntary obligations’ presently remains underpinned by the intellectual schema set out by Viscount Stair in his opus, the Institutions of the Law of Scotland. Stair’s schema suggests that obligations of this kind are created, or may putatively be created, by an ’act of the will’ which he identifies as ’engagement’. Bearing this in mind, the book seeks to make the case that piecemeal legislative reform of ’formation of contract’, as proposed by the SLC, is fundamentally wrongheaded and that to retain intellectual and rational coherence, the law in this area should not be governed by statute, but rather allowed to develop in line within the flexible, unitary and ultimately rational framework which presently governs the law of ’voluntary obligations’. In doing so, it considers a particular - ostensibly uncontroversial - aspect of the SLC’s law reform proposals: the abolition of the so-called ’postal acceptance rule’. By reference to Stair’s taxonomy, this book demonstrates that there is in fact no ’postal exception’ in Scots law; rather, the effect of this so-called exception is in fact nothing more than the quotidian consequence of the general rules relating to the formation of voluntary obligations. This, as is made plain, has significant consequences for the analysis of contracts formed by electronic means such as email and text - but the potential for development of the law in this direction would be irretrievably stymied if statute overrides the common law here. The book, then, is a work of ’anti-law reform’ which seeks to make the case that juristic development need not always come from ’on high’ in the form of legislation, but instead can be precipitated by expert commentary from jurists, to aid the development of the law as practised before the courts.

Dr. Jonathan Brown is a Lecturer in Scots Private Law at the University of Strathclyde.