End of the Park, Petitioners problem

The Legal Writings (Counterparts and Delivery) (Scotland) Bill may not have been caught in your radar, if you think that you are unlikely to use counterpart execution of documents in your practice. But this Act (which has now been passed, and is likely to come into effect around June) does two things, as the parentheses in its title signpost.

As well as enabling the execution of documents in counterpart (that is in two or more duplicate, interchangeable parts), it separately provides for delivery of traditional documents by electronic means.

Delivery of traditional documents in Scotland poses problems in the modern commercial and domestic arena. For written contracts to be legally binding in Scotland, physical delivery must take place (postal acceptance rule excepted), whereas the vast majority of communication and correspondence among solicitors, and between solicitors and their clients, takes place via email. It is invariable practice to attach documents, either in Word or other suitable format, or pdf, to emails for speed and immediate "delivery". This does not however create the legally binding requirement for contract, which needs physical delivery. Until now.

The Legal Writings Act will give electronic delivery of traditional documents, signed with a wet signature, legally binding effect, and will be achieved by delivery by electronic means of a copy of the document, or a part of such a copy (provided the part is sufficient to show that it is part of the document, and is, or includes, the page on which the document has been signed).

Delivery can be by any accepted method, although it is expected that email or fax will be the most common methods. So it will be possible actually to conclude binding missives by email. No undertakings will need to be given, nor will expensive courier delivery be required. It is less likely to be used for delivery of deeds at settlement, however, as registration will require the original document.

And it is important to note that while electronic delivery will constitute effective delivery of a traditional document, what is received electronically is not to be treated as being the traditional document itself. So for documents that need to be registered, for example, the principal version must be delivered for registration to take place. Missives letters should still be delivered for retention by the other side. The bill will however make the current practices of conveyancers now a legally accepted method of creating a binding contract.