BEST PRACTICE FOR MISSIVES Definition Collins English Dictionary

BEST PRACTICE FOR MISSIVES Definition Collins English Dictionary: 1) a formal or official letter or 2) a formal word for a letter

BEST PRACTICE FOR MISSIVES Legal Definition The letters between the parties or their solicitors forming a contract for the sale and purchase of land by private bargain. • must be created in writing. • normally probative but that is not required.

BEST PRACTICE FOR MISSIVES Comprise • M=O+A • M = O + QA (s) + A Offer and acceptance Offer, Qualified Acceptance(s) and Acceptance • M = O + QA(s) + Actings Offer (or with Qualified Acceptance(s) but no Acceptance) plus Actings.

BEST PRACTICE FOR MISSIVES Consensus • An Acceptance must be unqualified and meet the Offer or Qualified Acceptance. • There must be a consensus in idem before the contract is binding. • Introducing qualifications or new conditions constitutes a counter-offer itself requiring acceptance by the original offerer before the bargain is complete.

BEST PRACTICE FOR MISSIVES Time Limit and Withdrawal (1) • An Offer with no time limit may be withdrawn at any time before acceptance. • If an Offer contains no condition as to time, it falls if not accepted within a reasonable period. What is reasonable is a matter of circumstances. • • If an Offer has a time limit, that does not prevent its withdrawal within the period stated. It does preclude acceptance after expiry of the time limit.

BEST PRACTICE FOR MISSIVES Time Limit and Withdrawal (2) • A time limit can be so expressed that it constitutes an obligation not to withdraw it within the time specified. • However, an offerer will usually wish to be able to withdraw at any time. The provision contained in the Scottish Standard Offer Clause (Second) is: - • “This Offer unless earlier withdrawn is open for verbal acceptance by (Click here) (insert time and date) with written acceptance reaching us no later than (Click here) on the (insert time and day) working day following the date of this Offer and if not so accepted, shall be deemed to be withdrawn. ”

BEST PRACTICE FOR MISSIVES ACTINGS • REI INTERVENTUS • HOMOLOGATION • STATUTORY HOMOLOGATION • Deemed Acceptance • Crystallisation of Missives

BEST PRACTICE FOR MISSIVES Rei interventus and homologation • These terms have been abolished under the Requirements of Writing (Scotland) Act 1995 but they are useful in describing the situation where in the course of Missive letters being exchanged, there has been failure to achieve complete consensus in idem (e. g. issuing a final acceptance) but actings have followed which bar locus poenitentiae so that a condition not accepted in writing may nevertheless be implied as binding. • They were defined in Bell’s Principals as : • “Rei interventus is inferred from proceedings not unimportant on the part of the obligee, known to or permitted by the obligor to take place on the faith of the contract as if it were perfect; provided they are unequivocally referable to the agreement and productive of alteration of circumstances, loss or inconvenience, though not irretrievable. ” • “Homologation (in principle similar to rei interventus) is an act of the obligor or his legal representative approbatory of a preceding engagement, which in itself is defective for informal or unauthorised, either confirming it or adopting it as binding. It may be express or inferred from circumstances. It must be absolute, and not compulsory, nor proceeding on error or fraud, and unequivocally referable to the engagement; and must imply assent to it, with full knowledge of its extent, and of all the relevant interests of the homologator. ”

BEST PRACTICE FOR MISSIVES Rei interventus and homologation • They have been judicially defined by Lord Mac. Millan in Mitchell -v- The Stornoway Trustees • “Thus the party who seeks to enforce an informal contract against the party who seeks to disown it, may found upon his own actings on the faith of the contract, if these actings have been known to and permitted by the other party (the doctrine of rei interventus) or • He may found upon the actings of the party seeking to disown the contract as actings which imply confirmation of the contract (the doctrine of homologation). • The essence of the matter is the occurrence, subsequent to the informal agreement, of acts on the part of either party which would render it inequitable to hold that there was still a locus poenitentiae. ”

BEST PRACTICE FOR MISSIVES Statutory Homologation - Requirements of Writing (Scotland) Act 1995 S 1 (3) Where a contract. . mentioned in subsection (2)(a) above is not constituted in a document complying with section 2 or, as the case may be, section 9 B of this Act, but one of the parties to the contract. . . (“the first person”) has acted or refrained from acting in reliance on the contract. . . with the knowledge and acquiescence of the other party to the contract. . (“the second person”)— (a) the second person shall not be entitled to withdraw from the contract. . ; and (b) the contract. . shall not be regarded as invalid, on the ground that it is not so constituted, if the condition set out in subsection (4) below is satisfied. (4) The condition referred to in subsection (3) above is that the position of the first person— (a) as a result of acting or refraining from acting as mentioned in that subsection has been affected to a material extent; and (b) as a result of such a withdrawal as is mentioned in that subsection would be adversely affected to a material extent. (5). . . above replace the rules of law known as rei interventus and homologation.

BEST PRACTICE FOR MISSIVES Withdrawal - mistake in Offer • If an Offer contains an error in a material matter e. g. offering a higher price than the client authorised, it is possible to withdraw the erroneous offer by telephone, fax or email before an Acceptance has been sent. • When the error is communicated to the seller, the seller cannot then accept the original offer even if not done in formal writing- Gloag Contract. • The principle is that a party to negotiations for a contract cannot take advantage of an error by the other party of which he has knowledge.

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 1 OFFERING SOLICITOR SHOULD ENDEAVOUR TO SUBMIT OFFER IN STANDARD STYLE REFERRING TO STANDARD CLAUSES WITH AS FEW CHANGES AS POSSIBLE

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 2 The selling Solicitor should attempt if possible to issue a de plano acceptance

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 3 The aim is to conclude missives with either • a de plano acceptance or • at most with one qualified acceptance before an acceptance.

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 4 Goodwill is required from both the purchaser and seller to keep the • missives adjustment period to as short a time as possible. • Ideally missives should be concluded within one week

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 5 Purchasers should be warned that if their offer is subject to survey etc then their offer is less likely to be accepted than one which is not so qualified.

BEST PRACTICE FOR MISSIVES THE GUIDELINES – 3. 6 On receipt of a non-Scottish Standard Offer, – the selling Solicitor should consider requesting an offer in the new style.

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 7 the Property Schedules contain the wording “Offers are invited in the style of the Scottish Standard Offer and incorporating the Scottish Standard Clauses (Edition 3)”.

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 8 If the offering solicitor does not use the Scottish Standard Offer we suggest that it is • met with a qualified acceptance • accepting the offer but only to the extent of the price, entry and extras (if these are so agreed) • but deleting all other clauses + incorporate by reference SSC (Ed 3).

BEST PRACTICE FOR MISSIVES • THE GUIDELINES 3. 9 Please do not send the title deeds at the offer and acceptance stage. Send these immediately on conclusion of missives.

BEST PRACTICE FOR MISSIVES THE GUIDELINES 3. 10 Conflict of Standard Offers • Previously there were regional area missives – • we suggested that as a courtesy you discuss and agree with the selling solicitors which style was to be used. • Not now a concern with an all Scotland style. • The Scottish Standard Clauses are easily accessible on the Law Society website. • The Practitioners Guide and the Client Guide are also available on that website.

BEST PRACTICE FOR MISSIVES • USE OF CLAUSES and CLIENT GUIDE • Available for use to any solicitor • Entitled to edit wording if you feel it can be improved • Free to add firm branding • What is effect of not using the Client Guide?

BEST PRACTICE FOR MISSIVES CLIENT GUIDE • Section 1 Part 1 : Purpose of SSC • Section 1 Part 2 : A Scottish Missives Chain • Section 2 Scottish Standard Offer • Section 3 Scottish Standard Clauses (Edition 3) • Section 4 Explanations of Scottish Standard Clauses (Edition 3)

BEST PRACTICE FOR MISSIVES Q&A