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When is a promise not a promise?

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Through our relationships with other people, we often make promises. You may promise to do something, or you may promise not to do something (you may even promise yourself you’re going to get fit once gyms re-open…!). But what does the law have to say about all of this: are promises legally enforceable? If you break a promise to yourself and find that you are firmly parked on the sofa rather than the gym, the only repercussion will be an expanding waistline. But what if you make a serious promise to a friend or relative – would that be legally enforceable if you renege on it?

For a unilateral promise to be enforceable, a number of conditions must be satisfied. The leading case in this area of law is Regus (Maxim) Ltd v Bank of Scotland PLC 2013. In this case, the court outlined what is required for a promise to be binding and enforceable:

  1. It is a unilateral act and the person making the promise (the promisor) wishes to be bound by it;
  2. It does not need to be accepted or relied upon by the person benefitting (the promisee);
  3. It is irrevocable (unlike an offer which can be withdrawn before acceptance);
  4. The promisor’s words must be clear and unambiguous.

Aside from those factors, if the promise was not made in the course of business, the promise must also be in writing by virtue of the Requirements of Writing (Scotland) Act 1995. If the above requirements are not met, a court will be unlikely to enforce a promise. 

Finally, there is the issue of prescription to consider – i.e. the amount of time you have to raise a court action concerning a disputed promise. Under the Prescription & Limitation (Scotland) Act 1973, promises are listed at paragraph 1(g) of schedule 1 – this means that promises are subject to short negative prescription and any claim must be brought within 5 years of the disputed promise being made.

So, while no one should make promises they do not intend on keeping, for a court to enforce a promise, the bar is set relatively high.

Miller Samuel Hill Brown can provide further advice and guidance on such issues. To get in touch please use our online contact form.

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