Under Scots law, legal agreements do not, in most cases, have to be in writing. The law considers verbal agreements to be binding if the parties have a common purpose and they clearly intend to create a legal relationship. If these elements exist, the Scottish courts will enforce a verbal agreement. In certain limited circumstances, however, the law requires that agreements be in writing. These include wills and certain contracts to transfer property. Only adults over the age of 16 may enter into legal agreements in Scotland.
Offer and Acceptance
It's possible to break down any agreement into offer and acceptance. When you buy something from a shop, you offer money to the sales assistant, and he accepts your offer by taking the money and giving you the item. In Scots law, the parties to an agreement may express both the offer and the acceptance either verbally or in writing. In most cases, a verbal offer should be met by a verbal acceptance. An acceptance must be unconditional to form the contract. If a party makes a conditional acceptance, for example by negotiating on a price, the law considers this as a new offer, and therefore it must be accepted by the other party before the agreement is binding.
Parties to any legal agreement, including a verbal agreement, must have a common intention. A contract does not exist in law if one party thinks that he is buying a horse and the other party believes that he is selling a cow. If a dispute arises, a court would consider the actions of both parties to establish whether the parties had a common intention. The law requires the parties to reach agreement on certain essential elements, for example the price.
Intention to Create a Legal Relationship
In many cases, the parties to a verbal agreement do not intend to create a legal relationship, for example an agreement to meet for a meal or a drink is not legally binding. In the case of dispute, the court will examine the intentions of the parties to assess whether they aimed to create a legal contract. The law assumes that agreements made in a social or domestic context will not be legally binding, unless the parties stipulate otherwise.
The Requirements of Writing (Scotland) Act 1995 provides that certain agreements must be made in writing and signed in a formal manner. These include wills, trusts and contracts relating to the sale and purchase of land and heritable property.