Proposals to bring the Scots Law of Contract into the Modern Era

The Scottish Government has introduced a bill into the Scottish Parliament which will change the Scots law of contract in two major respects.

When passed, the Legal Writings (Counterparts and Delivery) (Scotland) Bill will bring Scots Law on the formation of contracts into a modern era.

The first major innovation the bill will make is to allow a document which requires to be signed by two or more parties to be “executed in counterpart”. This means that each party to the contract can sign their own copy of the document remotely from each other, rather than the one document being circulated round all the parties of the contract needing to be signed. The subscribed counterpart will then be delivered to the other party or parties.

The second important change is that the Bill will permit delivery of paper legal documents by electronic methods, meaning that the document will take legal effect upon such delivery.

The two advances will promote confidence in using Scots law to form contracts and hopefully will make Scotland a better place to do business.

Professor Hector MacQueen, the lead commissioner on the contract law reform team stated “This bill is the end product of a great deal of consultation with legal practitioners which has helped to produce innovations that are both principled and pragmatic in allowing the swift completion of documents in accordance with international best practice. I look forward to helping its speedy progress on to the statute book.”

The Law Commissions review can be seen at:

http://www.scotlawcom.gov.uk/index.php/download_file/view/1149/138/

Mitchells Roberton Solicitors & Estate Agents in Glasgow are happy to provide advice in relation to commercial contracts.

If you have any questions please contact Ross Leatham on rjl@mitchells-roberton.co.uk or telephone 0141 552 3422.

Vote for Love

In a previous blog, I spoke of the Love Commandos and the recent legislation introduced in Scotland regarding forced marriages. So it was with interest and glory that I read this month in the Stylist magazine that India’s most important khap panchayat (council) has agreed to lift a ban on inter-caste marriages after voting to allow marriage between different hereditary classes of Hindu society within its 42 villages- a decision which hopefully will begin to break the shackles of age old tradition.

Yet let us not forget that only in June 2007 Indian newlyweds Manoj Banwala and Babli were killed by order of a khap panchayat, a religious caste-based council among Jatts, in their Karora village in Kaithal district, Haryana. Such caste based councils are common in the inner regions of several Indian States, including Haryana, Punjab, and parts of Rajasthan and have been operating with government approval for years.

In the case of Manoj and Balbi the Khap panchayat’s ruling was based on the assumption that Manoj and Balbi belonged to the Banwala gotra, a Jat community and were therefore believed to be siblings despite not being directly related and any union between them would be invalid and incestuous. However, the couple’s commitment to one another transcended their willingness to abide by the societal norms and they ran away together on 5th April 2007 and married two days later at a Durga temple. Furious about the marriage Balbi’s relatives later kidnapped Manoj and Balbi firstly beating them up and then forcing Balbi to consume pesticide and strangling Manoj.

The case was brought to court and in March 2010 a Karnal district court sentenced the five perpetrators to be executed, the first time an Indian court had done so in an honour killing. (The death sentences were later commuted to life imprisonment). In her verdict district judge Vani Gopal Sharma stated “Khap panchayats have functioned contrary to the constitution, ridiculed it and have become a law unto themselves.”

There are 800 million Hindus in India and until now anyone marrying outside their caste has been shunned, with some becoming victims of honour killings. The Khap panchayat’s recent decision to allow youths of marriageable age to be free to explore their matrimonial options not only in their own caste but in other castes as well breaks the 700 year old tradition of marriage ban and this must be heralded as progress. Subedar Inder Singh head of the khap panchayat said “the current norms in marriage are 600-700 years old and times have changed.”

However, there is little doubt that the making of the decision has been greatly influenced by the constant growing army of bachelors in the villages and a skewed sex ratio making it difficult for young people to find a suitable match within the traditional defined thresholds. This has forced social institutions to look beyond and find solutions to the problems.

I am sure The Love Commandos will embrace the changes. They will see the effects if their voluntary workload begins to slow down.

If you have any questions please contact Fiona Wayman on fhw@mitchells-roberton.co.uk or telephone 0141 552 3422.

Book Review – This is Where I Am by Karen Campbell

This Is Where I Am

My daughter gave me a Jo Nesbo book for my birthday which I had already read so I took it back to Waterstones to have a browse and choose something else. I spent a couple of hours there- I do love a good bookshop. Anyway, I decided to buy This Is Where I Am by Karen Campbell and what a great choice it turned out to be.

The story revolves around Abdi Hassan,a refugee who has arrived in the UK from war torn Somalia via the dreadful  Dadaab camp in Kenya. With him he has his 4 year old daughter Rebecca and a red rucksack. He is sent to Glasgow where the Scottish Refugee Council introduce him to Deborah Maxwell, a recently widowed Glaswegian,  who is to be his mentor , helping him to settle in by teaching him about the life, culture and history of the city.

Initially Abdi and Deborah’s relationship is an uneasy one due to the language barrier and their completely different social and cultural backgrounds. Both are unsure as to how to proceed and it is by trial and error that slowly they work their awkwardness into some semblance of familiarity.

This is Where I Am is written in two distinct first person accounts and Deborah and Abdi’s voices are as believable as they are heartbreaking.  Both characters are alive and vibrant. They are rounded individuals, compassionate and caring, at times proud and self pitying, but they are always human.

One of the most difficult things for any writer, is to create recognisable, loveable and endearing characters while avoiding cliché, particularly when their subject matter is regularly dealt with in the media but Karen Campbell manages this beautifully. She takes people and situations out of the news and makes them real and right here showing the strife of the lives of others in a way which stays on the right side of sensational.

Being the staunch Glaswegian that I now am I enjoyed all the depiction of Glasgow as Deborah shows Abdi the city. She takes him to Kelvingrove Art Gallery, The Tenement House, Scotland Street School Museum and even to the Scotia Bar.

As the story progresses Abdi has moments of flashback to his life in the Dadaab camp in Kenya and it is in these sections that the full trauma of his life is laid bare and the book reveals its message: give refugees a chance  because it is impossible to imagine the darkness that they have experienced. It is a powerful message and one which will resonate with the ever increasing need to provide sanctuary to those in desperate need.

The book is ultimately about humanity.  It is a strong reminder that there is more that unites us than divides us. Humanity is shown here with all its faults and acts of brutality but what shines through is love for ones fellow man and the ability to connect with each another across cultures pain and humiliation and to cut through loss and fear by showing love and kindness  to each another.

There is so much in this novel and Karen Campbell has done full justice to the various issues she has talked about. It is safe to say that the book is very well researched and the author has done a great deal of homework before coming out with this novel.

And yes, I thought it was wonderful. A tonic for heart and soul.

Glasgow store pioneering bitcoin transactions

A Glasgow branch of second hand retailer CeX today became the first brick and mortar store in Britain to accept Bitcoin as a method of payment. The Sauchiehall St branch sees the retailer bin the pound and become a Bitcoin only zone for three days starting today.

Bitcoin is the world’s most prominent digital currency with popularity exploding, particularly within the last year. A virtual currency, powered independently by its users without a central authority such as a bank or government – bitcoin has already garnered recognition by online retailers but this is the first example of it penetrating the high street.

Users can buy, trade or sell bitcoins as well as using a method called “mining” to slowly make their own fortune. Other than complete user control, attractiveness of such a payment method includes the ability to quickly and securely make payments from a mobile device without need for cash or bank account whilst avoiding any potential transaction fees. Rapid appreciation of the value of the currency is making it particularly appealing to people looking to make a quick profit in such gloomy economic times.

So is this something all shops around Glasgow will be adopting in the near future? I don’t doubt that some virtual currency will eventually gain enough momentum to force widespread acceptance, this however is a long way off and certainly not a viable replacement for Sterling in its current form. However, I am sure with Scottish Independence and the debate over the future of the pound in Scotland dominating the news, CeX are more than happy to be getting attention from what feels like a clever publicity stunt.

 

Prenuptial Agreements – The way forward?

The laws of divorce in Scotland and England differ in a number of ways and none more significantly than in the way matrimonial property is dealt with. In Scotland, what is considered to be part of the matrimonial pot is only that property which has been acquired during the marriage, i.e. from the date of marriage to the date of separation. As a general rule, anything you owned prior to marriage and anything you have received by way of inheritance or gift are not included and therefore should not be taken into consideration in any financial settlement. In sharp contrast, under English law all property owned by the husband and wife, either individually or jointly, is considered to be matrimonial property, regardless of when it was acquired. This is perhaps why, until now, prenuptial agreements have been generally acceptable in Scotland but not in England.

This discrepancy appeared to lessen with a Supreme Court ruling back in 2010 (the case of Radmacher v Granatino), where the court decided that a prenuptial agreement was binding in the case of a German wife and French husband who were living together in England. It was decided by the Supreme Court at that time that such an agreement should be given “decisive weight” in any divorce settlement but that the court should still have discretion to waive any pre or post marital contract particularly where it was unfair to any children of the marriage.

In most cases, prenuptial agreements clarify what each party is taking into the marriage and the fact that, if things don’t work out they expect to walk away with their premarital property (or at least it’s value if it has been converted into something else) irrespective of anything the couple have accumulated during the marriage. Provided the parties both took legal advice and the agreement was fair and reasonable at the time it was entered into, such an agreement is likely to be upheld in Scotland. Notwithstanding the decision in the Radmacher case, while couples in England are free to enter into such agreements they are not currently considered to be legally binding. To ensure that the terms of such an agreement are enforceable, it is necessary to ask the court to make orders that reflect the terms specifically and even then the courts have discretion as to whether or not they do so.

This may be set to change however, if the recommendations set out by the  (English) Law Commission in their report “Matrimonial Property, Needs and Agreements” are taken on board. The report recommends that the law in England should be changed to ensure pre-nuptial agreements are enforceable.In a draft bill, the Law Commission outlines plans that would allow married couples and civil partners to make a qualifying nuptial agreement about how their assets will be dealt with in the event that their relationship breaks down. The proposed reform would give couples greater autonomy and control over their finances, providing greater financial certainty in the event of separation. If the proposals are implemented, both parties of the relationship will require to seek independent legal advice and offer full financial disclosure as part of the process to ensure that the agreement is enforceable.

In the meantime, the courts are likely to deal with each agreement on a case by case basis and so only time will tell. In any event, it is to be hoped that the shift in attitude by the English courts will help to align the way matrimonial property is dealt with by the two jurisdictions and prevent some parties from potentially manipulating the situation and using whichever jurisdiction is more favourable to them where they have a choice.

A Lawyer for other Lawyers

One of the services provided by our firm is a Solicitor Support Service.

Ian Ferguson is a Director of the Legal Defence Union. He deals mainly with complaints arising from Conveyancing and Chamber work. Ian has been providing LDU advice since 1997 and has acted in a large variety of different cases.

These are the services he covers :-

  1. Advice under the LDU Advice Helpline. To use this service please contact Professor David O’Donnell on 01356 648480. You can ask for a named LDU advisor to be appointed.
  2. Defence at Disciplinary Proceedings  including:-
  • Service Complaints by the SLCC
  • Conduct Complaints by the Law Society of Scotland
  • Guarantee Fund Committee appearances
  • SSDT proceedings

Ian also acts for non LDU cases on a private fee paying basis.

Donald Reid is a recognised expert witness listed in the Law Society of Scotland’s approved Directory of Expert Witnesses relative to professional negligence claims. He appears in Court for Pursuers and Defenders. He is consulted regularly to give formal or informal opinions in his field covering Commercial and Domestic Conveyancing, Security work and property related Company work. Donald is also an accredited mediator.

These are the services he covers:-

  1. Expert witness appearance
  2. Opinion Work
  • Formal Opinions
  • Informal Opinions
  1. Arbitration and Mediation

It is a lonely place at the wrong end of a complaint-we can help.

Donald Reid dbr@mitchells-roberton.co.uk

Ian Ferguson icf@mitchells-roberton.co.uk

0141 552 3422