Great Britain Ribbon Medals

The quick answer to this question is sadly no. Whilst Team GB have united together in the fight for Olympic and Paralympic gold, the contract laws in the separate countries which make up Great Britain are unable to do the same, meaning there is no such thing as a ‘British’ contract.

Below are some of the differences which make English and Scots contract laws incompatible and mean a choice has to be made when writing a contract.

Counterparts

In England, parties have long been able to sign separate copies of the same contract. Up until last year, contracts governed by Scots law required all parties to sign the same physical contract. Thankfully, the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 has allowed contracts to be signed in counterpart north of the border. This has removed the logistical challenge of co-ordinating everyone to be in the same room at the same time or running the risk of a contract being lost in the post before it is fully signed for completion. The legislation is very new and there will still be a lot of contracts in existence which pre-date the Act so be aware of this when reviewing old documents.

Signing

Although contracts can now be signed in counterpart there are differences in how Scottish and English contracts are actually signed. In Scotland, contracts must be signed at the end of the main body of text before any schedules and there must be text preceding the signature. English contracts on the other hand are signed at the very end of the document. There are also differences in the wording that goes before the signature: for example in English contracts you will often see the text ‘executed as a deed’, which is not used in Scotland. These differences may seem minor but failing to sign properly can mean an invalid contract.

Language & jurisdiction

In the same way as the Scots say ‘wee’ and the English say ‘small’, there are differences in the legal language used in our contracts. An assignation in Scotland is an assignment in England. In Scotland we ‘undertake’ rather than ‘covenant’ and refer to ‘delict’ instead of negligence or tort. A contract which is governed and interpreted under Scots law will need to use Scottish legal terms.

However the choice of jurisdiction and governing law should be based on more than just which legal language you want to use.  If the Scottish courts have exclusive jurisdiction, you will only be able to raise a legal action in Scotland which would mean instructing Scottish lawyers or advocates and potentially having to travel to Scotland if you are called as a witness. The potential remedies available under the two legal systems may also affect the choice of law.

Why do the differences matter?

Although the differences in language and signing are small they can amount to a difference between a valid and invalid contract. Choosing the wrong jurisdiction can mean that you do not have the remedies you were expecting or face travelling north or south of the border to defend or raise a court action.

As there is no such thing as a British contract, you need to think about the implications and make an active and informed choice.

This post was edited by Lauren Buchan. For more information, email blogs@gateleyplc.com.


Leave a Reply

Your email address will not be published. Required fields are marked *

1 + 3 =

This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.