Engaging with Engagement

Argues that Scotland’s unique law of voluntary obligations, rooted in Viscount Stair’s taxonomy, makes proposed statutory reforms to contract law – such as abolishing the postal acceptance rule – misguided and harmful to the legal system’s coherence

This short book examines the taxonomy of ‘voluntary obligations’ presented by Viscount Stair in his seminal Institutions of the Law of Scotland, arguing that – notwithstanding ongoing proposals to significantly reform ‘Scots contract law’ –  Stair’s account of ‘will’ and ‘engagement’ offers the better route forward for legal development in this area.

Scotland does not have a ‘law of contract’, as most comparable jurisdictions do, but rather – due in large part to the intellectual innovations of Viscount Stair – possesses a unitary ‘law of voluntary obligations’, 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 ‘law of contract’ in Scotland by urging the passing of a statute which, among other things, would abolish the so-called ‘postal acceptance rule’. 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 ‘postal acceptance rule’ in this jurisdiction and suggests, in light of this, that reform of ‘contracts’ and the formation of, in Scotland, is better left to the courts and jurists than to the Scottish Parliament (or, for that matter, Westminster).