I have one or two points on the delivery of traditional documents via electronic means, rather than on the counterpart issue, which I should probably put in writing for clarity’s sake. The provisions in section 4 are drafted with contracts in mind, and that makes sense, but the wording covers documents other than contractual documents. I will try to be brief.
I will begin with section 4(6), which states:
“Although delivery by electronic means constitutes effective delivery in relation to a traditional document, what is received by that means is not to be treated as being the traditional document itself.”
It is not immediately obvious what that means—it certainly was not obvious to me. I looked back at the Scottish Law Commission report and saw that one thing that it is supposed to mean is that a document as an electronic deliverable—a PDF—is not itself to be registrable in, for example, the land register or books of council and session.
As a drafting point, I thought that that section could be amended to make the point quite clear. It was not clear to me reading the bill cold; I am a pretty good reader of statutes with a good background knowledge of the law, but it did not come home to me. It would be good if subsection (6) could be amended to make the point that such documents are not registrable.
I have another point to make. If we turn away from contractual documents and look instead at, say, a conveyance of land, we see that it is on two pages. I have an example of a conveyance of land with me today and, as you can see, there are signatures on page 2. Section 4 says that a document can be delivered if just part of it is delivered, so if one page was faxed it would constitute delivery of the disposition, but that would be no use to a buyer because most of the deed is not there, and even if they got the whole deed they still could not register it because of section 4(6).
The project is being driven by contracts, and I fully understand that. As I have said, I support the bill, but I think that an amendment would be appropriate to cover the point that I have made. I can put that in writing for you.