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Engaging with Engagement: Analysing the Formation of Promises, Contracts and Voluntary Obligations in Scots Law

By (author) Jonathan Brown

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Scotland does not have a â€˜law of contractâ€™, as most comparable jurisdictions do, but rather â€“ due in large part to the intellectual innovations of Viscount Stair â€“ possesses a unitary â€˜law of voluntary obligationsâ€™, of which contracts form but a part. This fact is highly significant, but is frequently overlooked. Indeed, the significance of this has even been overlooked by the Scottish Law Commission, who have recently proposed to significantly reform the â€˜law of contractâ€™ in Scotland by urging the passing of a statute which, among other things, would abolish the so-called â€˜postal acceptance ruleâ€™. This short book takes the view that the proposed reforms are wrongheaded and would be deleterious to the coherence of the Scottish legal framework. To that end, it examines the taxonomy of obligations pioneered by Stair, indicates that the application of that taxonomy to situations such as the process of contracting by distance suggests that there is in fact no â€˜postal acceptance ruleâ€™ in this jurisdiction and suggests, in light of this, that reform of â€˜contractsâ€™ and the formation of, in Scotland, is better left to the courts and jurists than to the Scottish Parliament (or, for that matter, Westminster).

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