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Unilateral Promises: Scots Law Compared with the PECL and the DCFR

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Original languageEnglish
Article number14
Pages (from-to)529-552
Number of pages24
JournalEuropean Review of Private Law
Volume24
Issue number3-4
Publication statusPublished - 1 Jun 2016

Abstract

This contribution compares the recognition of a general concept of unilateral promises, binding without acceptance by the promisee, in Article 2:107 PECL and Article II.-1:103 DCFR with the equivalent Scottish rule. The significance of this comparison is that the rule in question is significantly wider than that found in most other European legal systems, which tend to recognise only limited categories of unilateral promises or to impose a requirement of acceptance. Despite an authoritative restatement of the law by Lord President Gill in Regus (Maxim) Ltd v Bank of Scotland plc [2013] CSIH 12, the Scottish courts have generally approached the concept in a restricted and restrictive way, although at least occasionally allowing it a role even in commercial cases. The decision of the UK Supreme Court in the Scottish appeal Royal Bank of Scotland v Carlyle [2015] UKSC 13 poses a significant challenge to such caution, and the judges’ self-imposed restrictions are also inconsistent with the DCFR’s approach. On the other hand, the Scottish experience suggests that the DCFR’s requirement that notice of the promissory statement must reach the promisee to make it effective except when the statement is a public declaration may in turn be too demanding. It is also suggested, in opposition to a suggestion by Professor Martin Hogg, that from both the DCFR and the Scottish experience the conduct of the recipient after the statement is made may be relevant to the question of whether the statement can be treated as a binding promise.

    Research areas

  • unilateral promise, Scots Law, Comparative Law, Principles of European Contract Law, Draft Common Frame of Reference. European private law. African legal unity. Breach of contract. Restitutionary damages., European private law

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