Kentigern1136: /* Difference Between Contract and Conveyance Stages */
The conveyancing stage (or the granting of a disposition) is the second of three stages required to validly transfer ownership of land in Scotland. The three stages are:
# The Contractual Stage (The [[Missives of Sale (Scots law)|Missives of Sale]])
# The Conveyancing Stage
# The Registration Stage
In the conveyancing stage of the transfer of ownership of land, a formal document called a ''disposition,'' is created and subscribed by the Disponer (the person granting the disposition or 'the Seller') and the Disponer (the person receiving the disposition or 'the Buyer').
== Difference Between Contract and Conveyance Stages ==
=== Traditio Legal System ===
The contractual stage or ''[[Missives of Sale (Scots law)|missives of sale]]'' only creates binding personal obligations, namely, among other things, for the Seller to grant a disposition transferring ownership and for the Buyer, an obligation to pay the purchase price and an obligation to receive the granted disposition. These are still personal rights, ''[[Scots property law#Personal Rights and Real Rights|rights in personam]],'' and the contract alone does not transfer the real right of ownership in itself.<ref>Stair Memorial Encyclopaedia, Vol 18, ''Property'', Ch 13, ''Transfer of Ownership'', para 642.</ref> This is because Scots law follows the principle that ''traditionibus non nudis pactis dominia rerum transferuntur'': ownership is transferred by delivery (or other conveyance) and not by bare contract.<ref>Stair Memorial Encyclopaedia,PROPERTY - PART I: GENERAL LAW (Volume 18), Ch. 13. TRANSFER OF OWNERSHIP, para 606. </ref>
=== Abstract Legal System ===
Only a conveyance, as a separate legal legal act, can effect the transfer agreed to by contract between the parties. Scotland has an abstract property legal system, meaning the conveyance does rely on the ''cause'' of the transfer. In Scots law the recognised causa are contract, gift or exchange (called a Contract of Excambion) and the validity of the conveyance (the transfer of property) does not depend on the validity of the contract, as [[James Dalrymple, 1st Viscount of Stair|Viscount Stair]]<ref>Viscount Stair is an institutional writer and as such is an authoritative source of law in Scots law. </ref> describes:<ref>Liquid error: wrong number of arguments (given 4, expected 1)</ref><blockquote>"We do not follow that subtility of annulling deeds, because they are ''sine causa''… and therefore narratives expressing the cause of the disposition, are never inquired into, because, though there were no cause, the disposition is good.’<ref>Stair, II, 3.14.</ref></blockquote>Therefore, Scotland differs from [[List of national legal systems|common-law jurisdictions]] such as England & Wales by requiring a conveyance stage as well as the formation of a contract. While a conveyance may be valid irrespective of the contract/gift/exchange, the reasons for the contract's invalidity may also extent to invalidate the transfer. This can arise in certain cases of fraud or where the Seller lacks capacity.<ref>T. B. Smith, 'Error and transfer of title' (1967) ''The journal of the Law Society of Scotland.''</ref>
== Prior Communings Rule and Clauses ==
At common law, following ''Winston v Patrick''<ref>1980 SC 246</ref>, the delivery of a disposition supersedes any personal obligations in the contract, even if collateral in nature. The [https://ift.tt/2xPIREn Contract (Scotland) Act 1997] altered this common law rule, so that the missives are no longer superseded by the disposition.<ref>Contract (Scotland) Act 1997 s.2 </ref> However, many conveyancers still include the use of a 2-year supersession clause in the Missives of Sale to ensure that contractual obligations come to end after 2 years rather than the running the full statutory 20-year period under the [https://ift.tt/1KfVqoP Prescription and Limitation (Scotland) Act 1973].<ref>Stair Memorial Encyclopaedia, ''Conveyancing (2nd reissue)'', Ch 3, ''Structure and Form of Deeds,'' para 81. </ref> It is important to note that the use of this clause will apply to both Buyer's and Seller's obligations under the contract.<ref>''Pena v Ray'' ''1987 SC 1, 1987 SLT 609, OH''.</ref>
== Disposition (Deed) ==
Historically, under the [[Scots property law#Feudal%20law|feudal system]], the conveyancing stage was carried out by feudal deed such as feu dispositions or Charters of Novodamus but their usage as a means of transferring ceased on 28 December 2004. Example current dispositions for both commercial and residential property can be found on the Property Standardisation Group website.<ref></ref>
Instead the legal transfer is carried through the issuance of a formal document by the Seller (the ''Granter'' of the disposition) called a ''disposition'' when discussing heritable property in favour of the Buyer (the ''grantee'' of the disposition).<ref>Stair Memorial Encyclopaedia, Vol 18, ''Property'', Ch 13, ''Transfer of Ownership'', para 642.</ref> Dispositions must be in writing and be formally subscribed under the [https://ift.tt/2Y5UrG7 Requirements of Writing (Scotland) Act 1995].
== Other Functions of a Disposition ==
[Section in Edit]
== References ==
<br />
[[Category:Scots law]]
[[Category:Scots law legal terminology]]
# The Contractual Stage (The [[Missives of Sale (Scots law)|Missives of Sale]])
# The Conveyancing Stage
# The Registration Stage
In the conveyancing stage of the transfer of ownership of land, a formal document called a ''disposition,'' is created and subscribed by the Disponer (the person granting the disposition or 'the Seller') and the Disponer (the person receiving the disposition or 'the Buyer').
== Difference Between Contract and Conveyance Stages ==
=== Traditio Legal System ===
The contractual stage or ''[[Missives of Sale (Scots law)|missives of sale]]'' only creates binding personal obligations, namely, among other things, for the Seller to grant a disposition transferring ownership and for the Buyer, an obligation to pay the purchase price and an obligation to receive the granted disposition. These are still personal rights, ''[[Scots property law#Personal Rights and Real Rights|rights in personam]],'' and the contract alone does not transfer the real right of ownership in itself.<ref>Stair Memorial Encyclopaedia, Vol 18, ''Property'', Ch 13, ''Transfer of Ownership'', para 642.</ref> This is because Scots law follows the principle that ''traditionibus non nudis pactis dominia rerum transferuntur'': ownership is transferred by delivery (or other conveyance) and not by bare contract.<ref>Stair Memorial Encyclopaedia,PROPERTY - PART I: GENERAL LAW (Volume 18), Ch. 13. TRANSFER OF OWNERSHIP, para 606. </ref>
=== Abstract Legal System ===
Only a conveyance, as a separate legal legal act, can effect the transfer agreed to by contract between the parties. Scotland has an abstract property legal system, meaning the conveyance does rely on the ''cause'' of the transfer. In Scots law the recognised causa are contract, gift or exchange (called a Contract of Excambion) and the validity of the conveyance (the transfer of property) does not depend on the validity of the contract, as [[James Dalrymple, 1st Viscount of Stair|Viscount Stair]]<ref>Viscount Stair is an institutional writer and as such is an authoritative source of law in Scots law. </ref> describes:<ref>Liquid error: wrong number of arguments (given 4, expected 1)</ref><blockquote>"We do not follow that subtility of annulling deeds, because they are ''sine causa''… and therefore narratives expressing the cause of the disposition, are never inquired into, because, though there were no cause, the disposition is good.’<ref>Stair, II, 3.14.</ref></blockquote>Therefore, Scotland differs from [[List of national legal systems|common-law jurisdictions]] such as England & Wales by requiring a conveyance stage as well as the formation of a contract. While a conveyance may be valid irrespective of the contract/gift/exchange, the reasons for the contract's invalidity may also extent to invalidate the transfer. This can arise in certain cases of fraud or where the Seller lacks capacity.<ref>T. B. Smith, 'Error and transfer of title' (1967) ''The journal of the Law Society of Scotland.''</ref>
== Prior Communings Rule and Clauses ==
At common law, following ''Winston v Patrick''<ref>1980 SC 246</ref>, the delivery of a disposition supersedes any personal obligations in the contract, even if collateral in nature. The [https://ift.tt/2xPIREn Contract (Scotland) Act 1997] altered this common law rule, so that the missives are no longer superseded by the disposition.<ref>Contract (Scotland) Act 1997 s.2 </ref> However, many conveyancers still include the use of a 2-year supersession clause in the Missives of Sale to ensure that contractual obligations come to end after 2 years rather than the running the full statutory 20-year period under the [https://ift.tt/1KfVqoP Prescription and Limitation (Scotland) Act 1973].<ref>Stair Memorial Encyclopaedia, ''Conveyancing (2nd reissue)'', Ch 3, ''Structure and Form of Deeds,'' para 81. </ref> It is important to note that the use of this clause will apply to both Buyer's and Seller's obligations under the contract.<ref>''Pena v Ray'' ''1987 SC 1, 1987 SLT 609, OH''.</ref>
== Disposition (Deed) ==
Historically, under the [[Scots property law#Feudal%20law|feudal system]], the conveyancing stage was carried out by feudal deed such as feu dispositions or Charters of Novodamus but their usage as a means of transferring ceased on 28 December 2004. Example current dispositions for both commercial and residential property can be found on the Property Standardisation Group website.<ref></ref>
Instead the legal transfer is carried through the issuance of a formal document by the Seller (the ''Granter'' of the disposition) called a ''disposition'' when discussing heritable property in favour of the Buyer (the ''grantee'' of the disposition).<ref>Stair Memorial Encyclopaedia, Vol 18, ''Property'', Ch 13, ''Transfer of Ownership'', para 642.</ref> Dispositions must be in writing and be formally subscribed under the [https://ift.tt/2Y5UrG7 Requirements of Writing (Scotland) Act 1995].
== Other Functions of a Disposition ==
[Section in Edit]
== References ==
<br />
[[Category:Scots law]]
[[Category:Scots law legal terminology]]
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