By Jon Robertson, partner, Dundas & Wilson.

The new Act is a godsend for lawyers trying to ascertain exactly what

legal form a particular arrangement has to be in or how it requires to

be signed.

FOR hundreds of years Scottish lawyers have baffled their clients with

obscure phrases such as ''adopted as holograph'', ''probative writ'' and

''obligationes literis'' whenever discussing the topic of formal legal

documents. Truth be told, the bafflement has not always been one-sided,

for lawyers themselves have often been left scratching their heads when

attempting to work out exactly what some of the more obtuse legal

requirements for the signing of deeds are.

On August 1, however, the requirements changed. The old Scots law on

the signing of deeds, built up over hundreds of years and contained in

various Acts of Parliament (some dating back to well before the Act of

Union) and numerous cases, has now been consigned to the dusty shelves

of law libraries. The old law is now replaced by a single Act of

Parliament, the Requirements of Writing (Scotland) Act 1995, running to

only 15 sections. The provisions of the Act govern, with a few

exceptions, all documents subject to Scots law signed on or after August

1 this year.

The Act makes several important changes to the law. These include the

abolition of the requirement to have witnesses of someone's signature,

although this is still a good idea as it gives the deed certain

beneficial qualities. If witnesses are used, the number required is

reduced from two to one. The use of ''adopted as holograph'' disappears.

The Act also provides that in general, people can enter into contracts,

make binding promises, or create trusts without the requirement of any

written document whatsoever, though if problems of proof are to be

avoided, writing is a good idea.

Only in limited circumstances is a written deed now necessary: in

short, for contracts and other documents relating to land, gratuitous

promises (unless given in the course of business), trusts where a person

is sole trustee of his own property, and wills.

While the Act is generally well thought out, it does cause some

headaches for lawyers (which not everyone will consider a bad thing).

For instance, the Act allows the use of unsigned schedules in certain

cases: so a will can now comprise only a few lines in which a person

leaves all their property as per an unsigned schedule. This could be a

wonderful post-death planning opportunity for an unscrupulous relative.

The biggest possible danger raised by the Act is in the area of

unintentional contracts. This danger has always existed in areas where a

written document was not required: everyone knows the danger, for

instance, of the unintended nod at an auction, or of waving at someone

on the floor of the stock market.

The Act increases the risk of unintentional contracts by allowing

people to enter into contracts where they would previously have known

they were not going to be bound until formal documentation was signed.

The danger is most apparent in the area of contracts concerning land.

Now, an exchange of informal letters, or even a conversation on the

telephone, followed by actings in reliance of the ''agreement'', could

be enough to bind parties to a deal where this was neither expected nor


The way to avoid this trap is for those negotiating property deals to

make it clear at the very beginning -- preferably in writing -- that the

discussions or negotiations are to be binding on the parties.

The best way to ensure this is to specify clearly that agreements will

not form part of a contract unless incorporated in a deed properly

witnessed under the new rules (ie, meeting the requirements of section 3

of the new Act). This should be agreed upon at stage one. If in doubt

contact your lawyer.

The above problems aside, the new Act is a godsend for lawyers trying

to ascertain exactly what legal form a particular arrangement has to be

in or how it requires to be signed, and exemplifies the clear, no

nonsense approach to the codification of the law which many recent

Scottish statutes have demonstrated.

No-one who ever had to cope with the problems of the old law will

really miss it, but like anything new in the law, most lawyers will

probably welcome the Act with a rather formal Edinburgh handshake.