(622)  PROMISES, PROMISES: BE BLOODY, BOLD AND RESOLUTE

 

Martin Hogg draws our attention to Dowager Countess of Cawdor v Earl of Cawdor 2007 CSIH 3, issued on 10 January 2007.  The case discusses the unique Scots law doctrine of unilateral promise, with Stair’s Institutions being the main authority relied upon.  The Countess’ claim that a promise had been made to her fails, for reasons summarised thus by Lord President Hamilton giving the opinion of the court:

 

[15]      It is undoubted that the law of Scotland will recognise as obligatory a promise duly made. Delivery to or acceptance by the promisee is not necessary to the constitution of a promise (Stair – Institutions of the Law of Scotland I.10.4), though, in my view, the presence or absence of communication to the other party may be an adminicle of evidence in the question whether the statement amounts to a promise in law. Stair (op. cit.) I.10.2 distinguishes three acts of the will, namely, desire, resolution and engagement. Only the third is obligatory. Having dealt with desire, Stair continues:

Neither is resolution (which is a determinate purpose to do that which is desired) efficacious, because, whatever is resolved or purposed, may be without fault altered, unless by accident the matter be necessary, or that the resolution be holden forth to assure others;

Neither of the two exceptions mentioned applies here. In my view, although this was a formal meeting at which the trustees proceeded on the basis of professional advice, they went no further than the stage of resolution referred to by Stair.