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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12073
Experience:  30 years as a practising solicitor.
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This question is generated by the argument of a pursuer, against

Customer Question

This question is generated by the argument of a pursuer, against me, the defender in a case at the Court of Session.

To be brief, my argument is that there is no contract (NDA), since the contract that I signed, was not signed by the pursuer (nor was their any indication of agreement, by signature or otherwise).

The pursuer is relying upon the 'reasonable person test', to show that the contract was agreed, because of 'conduct'. Namely that we continued to do business.

How would the 'reasonable person test' apply in this situation? And what are typical arguments surrounding this test?

It's worth noting that this contract (NDA) stipulates both parties should keep information confidential confidential, from both before and after the date of the contract. This acknowledges that 'confidential information' will part hands before agreement of the contract. Meaning that there was no significant milestone (or conduct) that indicated acceptance.
Submitted: 4 years ago.
Category: Scots Law
Expert:  JGM replied 4 years ago.
Thank you for your question.

I'm not sure that the reasonable person test is a good argument here? Have you received a Note of Arguments from the other side? If so please let me have a note of precisely what they are saying.

I wonder, however, if the principle of rei interventus might be relevant here. The definition officially is:

"REI INTERVENTUS. When a party is imperfectly bound in an obligation, he may in general, annul such imperfect obligation; but when he has permitted the opposite party to act as if his obligation or agreement were complete, such things have intervened as to deprive him of the right to rescind such obligation; these circumstances are the rei interventus. Bell's Com. 328, 329, 5th ed.; Burt. Man. P. R. 128."

In a nutshell, the contract wasn't signed but the other side acted as if it was and you allowed them to do so?

If they argue this, you may be in some difficulty but I am happy to discuss further if you disagree and I may have picked up the tenor of this wrongly.

So as always happy to discuss further.
Customer: replied 4 years ago.



Thanks for your response. The 'act' or 'conduct' the pursuer is arguing is a indication of acceptance, is the fact they they disclosed 'confidential information'.


However, the NDA clearly mentions that 'confidential information' is disclosed both before and after the date of the contract.


Since the NDA so clearly acknowledges a possible disclosures or 'confidential information' both before and after the date of the NDA, then disclosure by itself cannot be considered a significant change of 'conduct'.


The NDA allows for confidential information to be disclosed prior to signing the agreement, not as a step to be taken after the signing of the agreement.


Here is the exact wording of the contract:


"Confidential lnformation" means confidential commercial, financial, ...[redacted for brevity].. which is

disclosed before or after the date of this Agreement or which is produced from such information

(including any evaluations);

I think that Rei Interventus would not apply, as the contract allows disclosure both before and after the date of the agreement. Meaning disclosure is not a change in behavior.


Forgive any repetitiveness here, as it's quite difficult for me to explain.


As for a Note of Arguments, we have not yet reached this stage. A closed record will be filed tomorrow and we have agreed to appoint the cause to a procedure roll. The pursuers arguments were made outside of court, to persuade me to drop my defence. (Which I am not).

Expert:  JGM replied 4 years ago.
Let me see their arguments please either their letter or once they lodge a Note of Arguments.
Customer: replied 4 years ago.

I shall.

Expert:  JGM replied 4 years ago.
Customer: replied 4 years ago.



To wrap up this question a little more speedily than waiting for notes of argument, can I ask for the following?:


Are there any reference or instructions you can point me to on the procedure of making a 'tender', by which I mean the Scottish equivalent of a Part 36 offer. Which will give the associated cost benefits it makes possible.




Expert:  JGM replied 4 years ago.
A Minute of Tender is an offer to settle. If accepted decree will be granted in terms of the Minute of Tender and Acceptance thereof. If not accepted and the action proceeds with the defender being found liable for less than the amount tendered, the pursuers won't get their expenses from the period of the date of tender onwards and could also be found liable for the defender's expenses from that date.

If is a prerequisite of a tender that you have to pay the pursuer's expenses up to the date of the tender.

The tender document itself is headed up in accordance with the court process with the heading, instance etc and is worded:

"The defender without prejudice to his whole rights and pleas tendered and hereby tenders to the pursuers the sum of [ ] together with such expenses as the court may deem appropriate in full of the crave of the Summons."

That should be lodged in court and intimated to the other side.

I hope this helps. Please leave positive feedback so that I am credited for my time.