Volume 24 (2016) / Issue 3/4
Abstract: This contribution compares the recognition of a general concept of unilateral promises, binding without acceptance by the promisee, in Article 2:107 of the Principles of European Contract Law (PECL) and Article II.-1:103 of the Draft Common Frame of Reference (DCFR) with the equivalent Scottish rule. The significance of this comparison is that the rule in question is significantly wider than that found in most other European legal systems, which tend to recognize only limited categories of unilateral promises or to impose a requirement of acceptance. Despite an authoritative restatement of the law by Lord President Gill in Regus (Maxim) Ltd v. Bank of Scotland plc  CSIH 12, the Scottish courts have generally approached the concept in a restricted and restrictive way, although at least occasionally allowing it a role even in commercial cases. The decision of the UK Supreme Court in the Scottish appeal Royal Bank of Scotland v. Carlyle  UKSC 13 poses a significant challenge to such caution, and the judges’ self-imposed restrictions are also inconsistent with the DCFR’s approach. On the other hand, the Scottish experience suggests that the DCFR’s requirement that notice of the promissory statement must reach the promisee to make it effective except when the statement is a public declaration may, in turn, be too demanding. It is also suggested, in opposition to a suggestion by Professor Martin Hogg, that from both the DCFR and the Scottish experience the conduct of the recipient after the statement is made may be relevant to the question of whether the statement can be treated as a binding promise.
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