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- Counterpart execution and electronic delivery in Scotland | HM Insights
- Execution of documents: overview (Scotland)
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All Articles Events Publications. Related Content Articles Publications Absence of send-or-pay clause does not necessarily avoid liability for underdeliveries in international transportation agreements In February , almost three and a half years after the Request for Arbitration was issued, an award was rendered in one of the most high value arbitrations this past year. A document is subscribed by a granter or party if it is signed by them.
Individuals should sign their full name as set out in the body of the document or with their full first name or initial followed by their surname. Under Scots law valid execution of a document by a company requires signature by one director, the secretary or by another authorised signatory, meaning anyone who is duly authorised by the company to sign.
Signature should be at the end of the last page of the main body of the document excluding any annexation or schedule, whether or not it is incorporated in the document. If there is more than one party, the requirement to sign at the end of the last page of a document is met if at least one party signs at the end of the last page and any others sign on additional pages. Accordingly, the first signatory must sign a page that contains some operative text from the main agreement. This is a point to stress in cross-border closings as the temptation on colleagues from other jurisdictions to tidy up the signing pages across all documents to make them consistent is often strong and all too often this point gets overlooked.
If a person is executing a document in more than one capacity for example, in a personal capacity and as a director of another party , one subscription of the document by him is sufficient to bind him in all capacities. However, it is not unusual in practice and helpfully evidences the signing authorities to have such a person sign multiple times once for each capacity.
Subscription alone is sufficient for the valid execution of a document. However, if the document is challenged in the future in a court it would still be necessary for the person seeking to rely on the document to lead evidence to prove that it has in fact been validly executed, i. Any person challenging its validity would need to lead evidence that its appearance was misleading and it had not, in fact, been validly executed.
- Execution of documents under Scots Law.
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- Execution of documents: overview (Scotland) | Practical Law.
- So is Scots law now the same as England when it comes to counterpart execution??
The Act provides that a document can achieve probativity by attestation which means having on its face a description of the signing parties and process which evidences correct signature. For this, a document must indicate on its face that:.
Counterpart execution and electronic delivery in Scotland | HM Insights
As well as proving due execution, probativity also applies a presumption as to the date and place of execution where the signing docket or testing clause appears to state the date or place of subscription and nothing in the document or testing clause indicates that the statement of date or place is incorrect. For this reason it is often the case that Scottish testing clauses refer to both the date and place of execution — however, neither is essential.
Probativity can also be achieved through judicial application; where there has been a failure to witness a person who has an interest in the document can later apply to the court, and, if the court is satisfied that the document was subscribed by that granter it can confer probativity by court order. What about last minute alterations, such as marginal additions and deletions inked into the printed document?
Execution of documents: overview (Scotland)
In England, custom and practice following the Mercury case allows for a party to print off and sign only the signature page and then deliver a scan of this page together with a copy of the entire agreement. For further help or advice on counterpart execution and electronic delivery in Scotland, please contact either Stephen Chan , Craig Ramsay or your contact in our Corporate team. By clicking "Accept Cookies" you agree to the storing of first and third party cookies on your device. We use these to enhance your site experience and assist in our marketing efforts.
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- The Legal Provisions under the 2015 Act?
The Legal Provisions under the Act The Act introduced counterpart execution in Scotland on a statutory basis. So is Scots law now the same as England when it comes to counterpart execution? Counterpart Execution Top Tips A degree of thought needs to be given to several issues when using counterpart execution in Scotland: Consider if a counterparts clause should be inserted in the agreement. Signing practicalities should always be agreed well in advance of completion irrespective of whether or not there is a counterparts clause.
Thought should be given as to how to reflect this in the agreement 4. Print off the whole document for signing The Act makes it clear that the whole document must be printed and signed by a party to be a valid counterpart albeit a part of the document may be sufficient for the purposes of delivery. Get in touch For further help or advice on counterpart execution and electronic delivery in Scotland, please contact either Stephen Chan , Craig Ramsay or your contact in our Corporate team.