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A History of Private Law in Scotland: Volume 2: Obligations$
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Kenneth Reid and Reinhard Zimmermann

Print publication date: 2000

Print ISBN-13: 9780198299288

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198299288.001.0001

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(p.252) 10 Promise
A History of Private Law in Scotland: Volume 2: Obligations


Oxford University Press

For several hundred years, Scots law has held to the proposition that a promise is legally binding without the need for acceptance. Stair discussed promise and the rationale behind the claim of promise as being legally binding in his Institutions. And although later writers lacked the clarity of Stair’s vision and capacity of analysis, the law remained unchanged until the Requirements of Writing Act in 1995. This chapter considers Stair’s treatment of promise against the background of the canon law and jus commune, and actual practice in Scotland. It probes into the state of Scots law in the years between the Scottish Reformation in 1159–60 and the appearance of Stair’s Institutions in 1681. It also investigates the influence of the pre-Reformation canon law on the creation of the Scottish law of obligations. In addition, the chapter also addresses the questions of Stair’s use of the term ‘pollicitation’ which bedevilled the entire area of this law.

Keywords:   promise, Scottish Reformation, Stair, law of obligations, pollicitation, acceptance

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