Letter: Standard clauses

That so many solicitors are embracing the concept of the standard missive has to be welcomed, even if the putative aim of allowing contracts to be concluded more quickly continues to be frustrated by the present uncertainty in the mortgage market.

Nevertheless, there does seem to be a tacit acquiescence that any clause in the standard missive is somehow bestowed with a cloak of impunity simply by dint of its inclusion. I was reminded by a senior north east solicitor recently that the blanket adoption of such clauses should never derogate from the responsibility of a solicitor to know, understand and apply such conditions appropriately.

Presently, many agents are incorporating as a matter of course an additional condition stating that “any missive letter… which is transmitted by fax or email will be accepted… as delivery of the missive letter. The sending party shall hold the original missive letter on behalf of the receiving party… and the original missive will be sent… by post… as soon as possible”.

Such a condition seems to me to be utterly facile. Any clause in a contract only becomes enforceable once missives are concluded. The contract itself cannot, as a matter of law, be concluded until the principal letter is received. This being so, the clause in question only becomes effective when the principal concluding letter arrives at its recipient. So it does rather beg the question – what is the point of such a condition?

The practice has of course been predicated on the controversial decision reached in Park, Petitioner [2009] CSOH 122. However, the clause which has been adopted in response to this judgment does nothing to obviate the difficulty. If agents do wish to ensure that faxed missives are binding, an independent exchange of letters, faxes or emails requires to take place at the outset confirming that any faxed contractual communings will be treated as delivered and that the principal copies will be held to the order of the other party while being posted forthwith. Until the matter is clarified by statute this is the only effective method.

Another clause which doesn’t seem to bear proper examination is that which provides: “all parties irrevocably authorise their agents to release… current addresses on request”. This is quite meaningless. Agents are not party to the contract in question, nor can they be bound unilaterally to implement such a mandate. Furthermore, despite what any contract might provide, as solicitors we must always take our clients’ instructions to ensure we have their specific authority to so release. This being so, such a clause seems vacuous.

Standard missives are commendable. It is to be hoped that conclusion of missives will become both quicker and simpler. However, a measure of understanding and thought is still essential. They really ought not to be applied blindly.