def:  jargon buster

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Scots Law debt dictionary

(from the Accountant in Bankruptcy's Guidance Notes)

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

A 

Abandonment of assets - The deliberate omission of a permanent trustee to recover or realise assets which have vested in him. Also the deliberate omission to pursue a claim or action, the right to which vested in the permanent trustee.

Absolute privilege - Prevents someone who makes an oral or written statement from being sued for defamation based on anything included in such a statement or report. Absolute warrandice (see Warrandice)

Account of intromissions - An account prepared by a trustee recording his transactions with the funds or estate in his charge.

Accountant in Bankruptcy - A statutory officer whose function is to generally supervise the process of sequestration and to act as interim and permanent trustee by default if no insolvency practitioner is nominated to act.

Accountant of Court - An officer of court who supervises the conduct of curators bonis and other judicial factors. Accounting PeriodThe periods prescribed in the Act at the end of which the permanent trustee must prepare an account of intromissions.

Acquirenda - Any property or right acquired or received by a debtor after the date of sequestration and before the date of his discharge.

Act and Warrant - A document issued by the court formally vesting a debtor’s estate in his permanent trustee. (See also Vesting)

Action of Division & Sale - An action which seeks the authority of the Court for jointly owned property to be sold and the proceeds of sale divided between the co-owners, according to their interest.

Acts of Sederunt - Statutory instruments promulgating rules made by the Court of Session regulating its own procedures and those of the sheriff court (in civil matters only).

Adjudication on claims - The process by which an interim or permanent trustee decides whether a creditor has a valid claim and is entitled to rank in the sequestration and to vote on any occasion where creditors have the right to vote. Also the process by which a permanent trustee determines the value of the creditor’s claim for the purposes ofcalculating his dividend entitlement.

Alimentary (As a description of a fund) - Not available to meet the claims of creditors, eg, alimentary liferent. Formerly common in ante-nuptial contracts of marriage where property was provided by the wife. Since 1984 the privilege may extend only to funds provided by third parties. AnnuityA right to a yearly payment of money, eg from a trust or pension scheme.

Answers - Written pleadings given into court in defence to a claim or action.

Appellate rights - Statutory or common-law rights afforded to a person to appeal to the court against a decision by an official or to appeal to a higher court against a judicial decision.

Apparent Insolvency - A formal state of insolvency resulting principally from certain forms of diligence being done against a debtor. (For a full definition see Section 7 of the Bankruptcy (Scotland) Act 1985). 

Arrest - To arrest is to attach the funds or property of a debtor or the defender of an action in the hands of a third party. Arrestment may be in execution of diligence, or in securityfor an action. In either case the action of arrestment only prevents the party holding the funds or property from paying or disposing of it. To obtain actual possession the arrestor requires to pursue an action of furthcoming. (See furthcoming and also Earnings Arrestment)

Assignation - A formal transfer of rights by an entitled person to another person. Also the document by which a right is formally transferred.

Associate - In the law of bankruptcy, a person within certain categories of relationship with the debtor, including a relative, employer, employee or business partner. (For a full definition see Section 73 of the 1985 Act)

Assume - To adopt, as of a new trustee.

Attachment - A form of diligence over corporeal moveable property for recovery of money owed. It replaces poindings. Attachment allows the removal and auction of various possessions of a debtor that are not kept in his dwelling. The possessions within a debtor’s dwelling cannot normally be attached and there are various other exemptions (see Debt Arrangement and Attachment (Scotland) Act 2002). (See Exceptional Attachment Order and poindings) Award (of sequestration) The court order declaring a person to be bankrupt and sequestrating his estate.

 

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Bond of Caution - An insurance policy which persons acting as trustee or in a fiduciary capacity may be required to effect to ensure that the interests of the beneficiaries are secure against any failure of the trustee to meet his obligations. A bond of caution may also be required as a pre-condition for the raising of a court action to protect the defender from loss if the action should fail.

 

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Catholic creditor - A creditor whose debt is secured over several subjects or the whole property of the debtor. Such a creditor is bound to claim his debt according to the equitable rules so as not to prejudice unnecessarily the claims of secondary creditors whose securities are postponed to his rights.

Charge for payment - A legal document demanding payment of a debt. The charge follows upon Decree. A Sheriff Officer usually serves it, and the debtor is required to comply with the order within a specified time (usually 14 days).

Commission for diligence - Granted by the court on application and requiring a person to make documents available to a person pursuing a legal action.

Commissioners - Creditors or their representatives elected by the statutory meeting of creditors to represent the general body of creditors and to supervise the permanent trustee on their behalf. Up to 5 commissioners may be elected. Commissioners may only act where the permanent trustee is elected to office by the creditors and not if he is appointed by the sheriff.

Compensation - The extinction of mutual similar claims by setting one off against the other. There must be concursus debiti et crediti.

Composition - An arrangement between a debtor and his creditors whereby the debtor’s debts are discharged in exchange for an agreed partial payment. Composition may take the form of an extra-judicial contract, or after sequestration, proceed under the Act (Schedule 4). If a post-sequestration offer of composition is accepted by the creditors the debtor may receive an early discharge and be re-invested in his estate in return for the implementation by him of an offer which secures payment of a dividend to ordinary creditors of at least 25p in the £. The offer must be accepted by the majority in number and by not less than two thirds in value of the creditors.

Concursus debiti et crediti - Concourse or concurrence of debt and credit: a prerequisite of a plea of compensation, which can be founded only where each party is debtor and creditor, each in his own right, at the same time. See ‘Compensation’ and ‘Set-off’.

Condescendence - In a court action, that part of a pursuer’s written pleadings which contains a statement of the facts on which he relies.

Conjoin - An order that two processes involving the same subject matter and the same parties be heard together.

Conjoined Arrestment - A process whereby two or more arrestment orders in effect at the same time are combined and the proceeds of the arrestment apportioned by the sheriff clerk among the arresting creditors.

Consignation - A form of deposit receipt whereby money is lodged in a Head Office bank account pending an order of the court or until the person entitled to it claims it.

Contingent Claim - A claim which will only arise in conditional circumstances.

Court - The Supreme Courts (incorporating the Court of Session and the High Court of Justiciary) the Sheriff Court and the District Courts.

Court of Session - The highest civil court in Scotland. Creditor Any person, business or organisation which is owed money by another.

Crown Office - A department under the Lord Advocate responsible for the public prosecution ofcrime within Scotland. The Crown Office also administers the procurator fiscal service. Some functions of the Queen’s and Lord Treasurer’s Remembrancer, particularly in relation to the Crown’s position as ultimus haeres are now exercised bythe Crown Office.

 

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Damages  - A sum of money claimed as compensation for loss, injury or damage resulting from an act or omission of the defender which results from breach of duty owed, by contract, statute or common law. The amount of damages awarded is intended to put the entitled person as nearly as may be in the same position as he was before the harm occurred.

Date of Sequestration - Means in the case of a debtor’s petition, the date on which the sequestration was awarded by the Court; and in all other cases the date on which the Court first granted warrant to cite the debtor to appear before it to answer the petition.

Deliverance - A formal decision of the Sheriff on an application, usually issued as an interlocutor.

De minimus - An abbreviation of the brocard de minimus hon curate lex, ‘the law ignores trifles’.

Debtor - Literally any person who owes money to another. In the context of sequestration it means a person who is insolvent and who is the subject of a petition for an award of sequestration. 

Debtors (Scotland) Act 1987 - The statute regulating the processes of civil diligence in Scotland as amended by the Debt Arrangement & Attachment (Scotland) Act 2002 and the Bankruptcy & Diligence etc., (Scotland) Act 2007.

Decree for Payment - An order of the court formally finding a debtor liable to pay a sum of money to acreditor.

Decree of Adjudication - A rarely used form of diligence whereby a debtor’s heritable property may be attached by a creditor in satisfaction of a debt.

Delectus Personae - Choice of a particular person. Important in a legal sense preventing assignation or delegation of a duty by the person chosen.

Diligence - Various forms of legal process taken by creditors to enforce repayment of overdue debts. The processes of diligence are prescribed and regulated by the Debtors (Scotland) Act 1987. The term diligence also applies to the process for procuring the recovery of documents from an opponent or third party or for obtaining the evidence of witnesses before a commissioner. (See also Commission for diligence)

Discharge - The formal termination of a legal office or state, e.g. interim and permanent trustees may apply to be formally discharged when their functions have been completed. A debtor is also normally automatically discharged from bankruptcy 3 years after the date of his discharge.

Dispone - To formally convey land or other heritable property to another person.

Disposition - A formal deed transferring ownership of heritable property.

Dividend - The distribution of funds to creditors in a sequestration. Also, the proportion of the debt repaid to a creditor in a sequestration; expressed as x pence in the £.

Division and Sale, Action for - An action in which the authority of the court is sought for common property to be sold and the proceeds divided between the co-owners.

 

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Arrestment of Earnings - A form of diligence whereby a creditor, following the expiry of a Charge for Payment or, in the case of a local authority, the granting of a Summary Warrant, may require the debtor’s employers to deduct sums from the debtor’s wages or salary and to pay these deductions to the creditor. (See also Conjoined arrestment).

Edinburgh and London Gazettes - Journals published daily for the Government by the Stationery Office in which are recorded various official announcements. Awards of sequestration and certain actions in the sequestration process must be published in the Edinburgh Gazette.

Equity - In the context of heritable property, the difference between the market value and any loan secured over the property. Equity will be negative if the amount of loan outstanding is greater than the market value. Estate A legal term which simply means all property and rights belonging to a person.

Exceptional Attachment Order - In exceptional circumstances, a sheriff can make an exceptional attachment order which allows the removal and auction of a debtor’s possessions from his dwelling. It is very similar to a poinding which it replaces. (See attachment and poinding)

Ex gratia - Gratuitous, done without recognising any legal obligation to do whatever was done. Thus an ex gratia payment may be made to settle a claim without any admission as to liability.

Expenses - The Scottish legal term for the costs of an action.

 

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Furthcoming (Action of) - An action raised for the recovery of money or property arrested in the hands of a third person. (See also arrestment)

 

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General Register of Sasines - A public register, maintained since the seventeenth century, in which all deeds transferring, creating or extinguishing rights to heritable property require to be recorded in order that they might have effect. The register is being progressivelysuperseded by the Land Register of Scotland.

Gift - In its normal sense ‘gift’ is synonymous with ‘donation’, signifying the gratuitous transfer of property by one person to another.

Gratuitous - Made or granted without monetary or other consideration.

Gratuitous Alienation - A transfer of property by a debtor to another person for no consideration or for an inadequate consideration. Such alienations in the period up to 5 years prior to the date of sequestration are open to a statutory challenge by the permanent trustee; alienations outwith that period can only be challenged at common law.

 

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Heritage - Heritable Property Property in the form of land, houses and buildings, so called because it passed under the former law to the heir on the owner’s death.

High Court of Justiciary - The highest criminal court of Scotland.

Hire Purchase Agreement - An agreement whereby goods are hired in return for periodical payments, the ownership of the goods only passing to the hirer when the agreed payments have been made.

Hypothec - A right of a landlord to retain property in the rented premises as a security for unpaid rent.

 

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Inhibition - A diligence which prevents the debtor from transferring or disposing of title to heritable property without the debt of the inhibiting creditor being settled. An award of sequestration has the same effect.

Inner House - That part of the Court of Session, comprising two permanent divisions (the First and Second Divisions) which is primarily concerned with the court’s appellate jurisdiction. It is so called because originally the Inner House lay further away from the courthouse entrance than did the Outer House.

Insolvency Practitioner - A person licensed and authorised to act as a trustee in sequestrations or trust deeds and also as liquidator, administrator, or receiver of a limited company.

Instrument - Any formal legal deed or document. Inter aliaLiterally, among other things.

Interim Trustee - A person appointed by the court to safeguard a sequestrated estate pending the election or appointment of a permanent trustee.

Interlocutor - The official and effective expression of an order or judgement pronounced by the Court in the course of a civil action. Interlocutors are signed by the presiding judge and entered on interlocutor sheets which form part of the process.

Inventory - A list of the property or estate of a person. Permanent Trustees are required to make up and maintain an inventory of the debtor’s estate. An inventory of the estate of a deceased person must be sworn to and lodged by executors on taking up their duties.

 

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Judicial Factor - A person appointed by a court to hold or administer property in Scotland where it is in dispute or where there is no one who could properly control or administer it. A judicial factor must find caution and he is supervised by the Accountant of Court. A judicial factor may be appointed on the petition of the Law Society of Scotland on the practice and personal estate of a solicitor who is in breach of the Solicitors Accounts Rules.

 

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Keeper of the Registers of Scotland - The officer responsible for the Department of the Registers of Scotland, in which are maintained the General Register of Sasines, the Land Register of Scotland and registers of a wide range of deeds relating to succession, trusts, family agreements and state appointments.

 

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Land Register of Scotland - A public register of interests in land in Scotland under the management and control of the Keeper of the Registers of Scotland. It is being brought progressively into effect under Land Registration (Scotland) Act 1979 and will eventually supersede the recording of deeds in the General Register of Sasines.

Lien - The right to retain the property of a debtor until he pays.

Liquidator - A person appointed by the Court or by the creditors to ingather the assets of an insolvent company and to adjust and settle the claims of its creditors.

Litigious - When heritable property is rendered litigious it cannot be alienated to the effect of defeating an action or diligence which has commenced. Litigiousity results from inhibition, from sequestration and also from the service of a summons in certain actions affecting land.

Lodge - To lodge pleadings and other documents is to place them in the custody of the clerk of court.

Lord Advocate - The senior law officer of the Crown in Scotland. He or she is a member of the Government who advises it on legal matters affecting Scotland and is in charge of the prosecution of all crime. He or she is responsible for the Crown Office.

Lord Ordinary - A judge in the Outer House of the Court of Session.

 

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Mandate - An authority given to one person (the mandatory) to act on behalf of another.

Messenger at Arms - An officer of the Court of Session who is responsible for serving processes and executing diligence. (See also Sheriff Officer)

Missives - Informal and preliminary writings exchanged, though not necessarily sent by parties negotiating a contract, which may or may not be binding according to the nature of the contract. In Scotland the term is commonly applied to the exchange of letters constituting the contract for the sale of heritable property.

Moveable Property; Moveables - All property not classed as heritable. Corporeal moveable property such as furniture, vehicles and animals can be handled or moved. Moveable property which has a legal but no actual physical existence, such as debts and company shares is classed as incorporeal property.

Multiple Poinding - An action in which the court is asked to adjudicate upon conflicting claims made to property or money (called the fund in media).

 

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Nobile Officium - Literally noble office or power. The High Court of Justiciary or the Court of Session may use this ultimate equitable power, as distinct from its nobile ordinarium, within strict limits, to modify the rigorous application of the common law or to give proper relief in a situation for which the law made no provision.

Note (to Court) - An incidental application or report to the court in an existing process e.g. a sequestration process.

Notice of Title - An instrument superseding the notarial instrument setting out the right of a person to heritable property which, when recorded in the General Register of Sasines or the Land Register of Scotland, completes the person’s title to the property.

Notour Bankruptcy - Formerly a state of insolvency which had become “notorious”. The circumstances in which the state arose were prescribed by statute. It was a prerequisite to the initiation of sequestration proceedings by creditors. It was replaced by the more precise term ‘apparent insolvency’ by the Bankruptcy (Scotland) Act 1985.

Nova debita - New debts. The Latin expression is used to denote debts, the payment of which, although contracted within sixty days before bankruptcy are not struck down by a subsequent sequestration.

 

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Oath - A solemn undertaking, with a formal reference to God, that what is asserted is in fact true or what is promised will be performed, used especially of the pledge made by a witness promising to speak the truth in giving evidence. A person without religious belief may solemnly affirm instead of taking an oath.

Obtemper - In relation to an order of the court, to obey, comply with or fulfil. Offence An act or omission which is contrary to and punishable by law. Acts and omissions prohibited by statute are generally termed ‘offences’, those offending against common law being called ‘crimes’.

Offer of Composition - See Composition.

Onerous - Given for value, payment or services, as opposed to gratuitous.

Opinion - Counsel’s written expression of his views on the law applicable in a particular set of circumstances presented to him for that purpose. A statement by a judge of the Court of Session of the House of Lords setting forth the reasons for a judgement delivered.

Ordinary cause or action - Any civil proceedings in the sheriff court, other than a summary cause or proceedings for which a special procedure is provided. Ordinary causes are regulated by the Ordinary Cause Rules.

Outer House - That part of the Court of Session in which Lords Ordinary, sitting alone, try cases at first instance; so called because the court was originally situated closer to the court house entrance than the Inner House.

 

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Pari Passu - In equal grade; equally for example as applied to a right to share equally with others a common fund in multiple poinding and sequestration. Ordinary creditors in a sequestration rank pari-passu between themselves.

Partner - A person carrying on a business in common with another or others with a view to profit.

Partnership - The contractual relationship between 2 or more persons carrying on a business in common with a view to profit. Also, a firm comprising partners.

Patrimonial Loss - Economic loss or loss of financial support - as distinct from solatium (pain and suffering).

Periodical Allowance - A regular alimentary payment fixed by the court and payable by one spouse to another following their divorce. (See also Alimentary)

Permanent Trustee - A person appointed by the court or elected by creditors to take possession of a sequestrated estate and to manage and realise it for the benefit of the creditors.

Personal Bond - A written undertaking, without security, to pay a debt or perform an obligation.

Petition - The legal term for a formal application to the court (sometimes referred to in the Sheriff Court as an Initial Writ).

Petitioner - The person making (as in whose name is made) an application to the court.

Petitioning Creditor(s) - The qualified creditor(s) applying to the court for the sequestration of a debtor.

Poinding - Poinding is a legal process following upon a charge for payment or Summary Warrant. The poinding will be carried out by Sheriff Officers, who will value certain of the debtor’s possessions. Items poinded may subsequently be removed and sold byauction (warrant sale). Essential household items and certain other goods are exempt from poinding in terms of section 16 of the Debtors (Scotland) Act 1987.

Poinding schedule - A formal document prepared by the sheriff officer executing a poinding, identifying the creditor and the debtor, listing the articles poinded and their respective values and stating the sum recoverable and the place where the poinding was executed.

Postponed debt - A debt which is payable in a sequestration only after all other claims have been satisfied eg a loan made by the debtor’s spouse or partner.

Preferred Debt - Certain debts or elements of debts due to Government revenue departments, employees, and occupational pension schemes; all as more fully defined in Schedule 3, Part 1 of the Act.

President, Lord The head of the Scottish Judiciary - As Lord President he presides over the First Division of the Inner House in the Court of Session. As Lord Justice General he also presides over the High Court of Justiciary. The Lord President also has a number of administrative powers and functions.

Prima Facie - Literally first appearance or sight. A prima facie case is one which at first sight appears compelling and calls for an answer. The term may also be applied to evidence.

Principal - A person for whom another acts, or purports to act, under a mandate or contract of agency.

Private Examination - The formal interrogation by a permanent trustee of a debtor or an associate of the debtor or any other person who the trustee has reason to believe has information relevant to the debtor’s financial affairs. Such a person may be compelled to attend for such an examination by order of the sheriff.

Privileged Debts - Debts owed by the estate of a deceased debtor, such as for funeral expenses and mourning, which take preference over the debts of ordinary creditors in sequestration.

Process - The term for a court action which may be a single action or a continuing one eg a sequestration.

Pro forma - As a matter of form; as of proceedings which are purely formal. Commonly used for partly printed formal documents which require completion by insertion of particulars.

Pro indiviso - In relation to the ownership of property pro-indiviso means held in common as in anundivided manner. A person with a pro-indiviso interest in property has no absolute right to any particular portion of the property merely an interest, shared with the other pro-indiviso proprietors in the whole property.

Pro rata - Proportionately joint debtors or creditors are only bound by or entitled to the shares of the debt due pro rata. Joint and several debtors are each indebted to the creditor in solidium, ie, for the whole debt, but only pro rata in a question with each other.

Procurator Fiscal - An officer appointed by the Lord Advocate to act within a sheriffdom as public prosecutor in the sheriff court and the district court, to investigate and report serious crime to the Crown Office, to investigate sudden or suspicious deaths and to initiate fatal accident enquires.

Protected Trust Deed - A form of voluntary trust deed for creditors introduced by the Bankruptcy (Scotland) Act 1985 whereby if a sufficient number of the creditors do not object to it the Trust Deed automatically becomes protected and so binding on all the creditors. None of the creditors may do diligence or then seek to have the debtor declared bankrupt.

Public examination - The formal interrogation of a debtor (or of any other person, etc) in court and under oath before the sheriff.

Public roup - A sale of property by public auction.

 

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Qualified Creditor(s) - A creditor to whom the debtor owes not less than £1,500 (or a number of creditors to whom the debtor owes not less than £1,500 in total).

 

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Rank - To be admitted as a claimant in a sequestration.

Recall - To withdraw an interlocutor or order of the court, e.g. an Award of Sequestration. (See also Reduction.)

Receiving Order - An order of the court in England or Wales placing the person’s assets under the control of the official receiver, pending formal bankruptcy proceedings.

Reduce - To annul or set aside by legal process: hence reduction. To set aside or annul a deed, contract, decree or award; usually following an action of reduction.

Redundancy payment - Compensation payable under statute by an employer to an employee who is dismissed because his job has ceased to exist through contraction, mechanisation and reorganisation etc.

Register of Inhibitions and Adjudication - A register kept by the Keeper of the Registers of Scotland in which are recorded inhibitions, adjudications, reductions and notices of litigiosity. Recording in the register is a prerequisite to certain proceedings and actions.

Register of Insolvencies - A public register maintained by the Accountant in Bankruptcy in which are recorded details of all sequestrations awarded by the Scottish Courts. The Register also contains details of protected trust deeds. Since 1 July 1999 the Register also contains details of companies in receivership or liquidation.

Register of Sasines - A public register in which all deeds affecting rights and interests in heritable property required to be recorded for effect. The former particular registers of sasines were abolished in 1868, leaving the General Register of Sasines which is being progressively superseded by the Land Register of Scotland. Registration of Title The system of registration of interests in land now being introduced progressively in Scotland to replace registration of deeds as operative under registration for publication. Under this system, the title to an interest rests on the entry in the register without preference to any deeds and is guaranteed by the sale.

Repetition (Action for) - An action by an entitled person to recover from the payer monies erroneously paid to another person. Rescind To terminate or cancel a contract. A right to rescind arises where the other party wrongly induced the contract, has repudiated it or has committed a material breach of it.

Retention - The withholding by one party to a contract of performance of his obligations under the contract until the other party performs his obligations under it. More particularly, retaining moveable property until a debt due by its owner is paid, ie, a lien.

Reversion (Reversionary Right) - In the context of sequestration, it is the right of the debtor to the return of what remains of his estate after the claims of his creditors have been fully satisfied.

Roup - Public auction of property. Articles of roup prescribe the conditions of contract on offer.

 

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Search for encumbrances - An inspection of all relevant property and personal registers to trace the recording of the sequence of title deeds to heritable property and to ascertain the presence or otherwise of any encumbrance affecting the property or restrictions on its disposition. Also commonly used to refer to the document recording the results of such an inspection.

Search Warrant - A warrant to search for goods or for other material or documents which might form evidence in criminal proceedings. It is granted by a sheriff on the sworn evidence of the applicant. An interim trustee in sequestration can also obtain a search warrant in respect of the debtor’s house and/or business premises.

Secondary creditor - A creditor whose security ranks below that of another secured creditor. (See Catholic creditor.)

Secured Creditor - A creditor whose debt is guaranteed by the right to take possession of the heritable property over which the debt is secured.

Sederunt Book - A formal record of the proceedings in a sequestration maintained by the permanent trustee. It is examined by the Accountant in Bankruptcy prior to the discharge of the permanent trustee and subsequently lodged with the Keeper of the Records. The sederunt book is open to inspection by any interested person.

Sequestration - The Scottish legal term for bankruptcy. Bankruptcy is a formal court process which involves the transfer of the debtor’s property to a trustee. The process of rendering an individual bankrupt by attaching, ingathering and setting aside his assets, heritable and moveable and vesting them in a trustee for the benefit of a bankrupt’s creditors. Generally, the judicial seizure of assets to enforce a claim or to satisfy a court order.

Sequestration for rent - A court process which can be raised against a debtor by his/her landlord for unpaid rent. Note: This is not the same as bankruptcy or formal sequestration.

Set-Off - See Compensation.

Sheriff - Originally the shire reeve; the holder of an ancient office who was the Sovereign’s representative in the shire or county. The office was hereditary until 1946 and comprised extensive military, financial, administrative and judicial functions. The sheriff is now the judge of a sheriff court with almost unlimited civil jurisdiction. Appeal from his judgement lies to the sheriff principal and the Inner House of the Court of Session. From his extensive criminal jurisdiction appeal lies to the High Court of Justiciary. Qualified persons may be appointed as temporary sheriffs. Honorary sheriffs, appointed by the sheriff principal, need not be legally qualified. They may relieve sheriffs of such duties as may be allocated to them. Sheriff Clerk The principal clerk of court in a sheriff court.

Sheriff Court - There are 6 Sheriffdoms in Scotland each presided over by a Sheriff Principal. Each Sheriffdom consists of a number of Sheriff Court Districts, 49 in total. There is a Sheriff Court in every district in which sit one or more Sheriffs. The Sheriff Court can deal with any civil matter and with less serious criminal matters. Decisions in the Sheriff Court can be appealed to the Sheriff Principal or to the Court of Session.

Sheriff Officer - An officer of a sheriff court who is responsible for serving processes and executing diligence. (See also Messenger-at-Arms)

Sheriff Principal - The senior judge in a sheriffdom. He is responsible for the speedy and efficient disposal of business in the sheriff courts throughout his sheriffdom. He hears appeals from sheriffs in civil cases and appeals from him lie to the Inner House of the Court of Session.

Sheriffdom - The area within which a sheriff principal exercises his jurisdiction. There are six such areas, each (except Glasgow and Strathkelvin) being divided into a number of sheriff court districts.

Sist - To stay or suspend court proceedings by order of the court. A stay or suspension of court proceedings. A court order staying or suspending legal proceedings. To interpose a person or to intervene in court proceedings as a litigant, eg as a third party with an interest intervening in a cause, as the executor of a decease party or as the trustee or liquidator of an insolvent party.

Solatium - Compensation; damages given for injury to feelings or reputation, pain and suffering and loss of expectation of life. Awards of solatium to members of the immediate family or a deceased person were replaced by a loss of society award under the Damages (Scotland) Act 1976.

Special destination - A provision in a will or the title to heritable property indicating or directing some departure from the legally implied line of succession mortis causa.

Standard Security - The legal instrument by which a secured debt is created. The only form in which an interest in land for the purpose of securing a debt by way of a heritable security may now be created. It is not effective until recorded in the General Register of Sasines or registered in the Land Register of Scotland.

Statement of affairs - Statement of Affairs (both book value and an estimate of the realisable value) of assets and liabilities at a given date. Statement of claim Form for use by creditor for voting purposes and for ranking for any dividend.

Statutory Demand - A formal demand issued under oath and requiring payment within 21 days. Provided the demand is for £750 or more, failure to pay or to deny the debt renders the debtor apparently insolvent and liable to sequestration.

Statutory Instruments - The form in which orders, rules, regulations and other subordinate legislation are made. Statutory instruments are prescribed or enacted under the royal prerogative or statutory authority by the Queen in Council or a minister of the Crown.

Statutory Meeting - The first meeting of creditors called by the interim trustee for the purpose of electing a permanent trustee and commissioners.

Summary Warrant - Granted by the court on application by a government department or local authority, in respect of unpaid taxes, rates, community charge or council tax. Once a summary warrant has been granted the creditor may immediately arrest the debtor’s salary or wages, or instruct a poinding of his moveable assets.

Survivorship clause - A clause in a will or conveyance by which a testator or granter provides that, should one of the several beneficiaries or grantees die before he takes his interest, it is to pass to the survivor or those who survive.

 

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Taxation - Is the process where, at the request of a solicitor’s client, the Auditor of Court scrutinises a solicitor’s legal account to ensure that the fees and expenses charged are fair and reasonable for the work undertaken on behalf of that client. As the auditor charges a fee for his work, taxations should only be requested where the client is unhappy with the legal bill and is unable to reach a compromise with his solicitor.

Title - The right to the ownership of property.

Title deed - The deed or other instrument constituting evidence of the ownership of the heritable property.

Trust - The vesting of certain funds, rights or interests in property in another person or persons (trustees) to be applied or administered for the benefit of others (beneficiaries) in accordance with the terms of the trust. (See also Protected Trust Deed)

Trust deed for creditors - A deed by which an insolvent person conveys his estate to a trustee for the benefit of his creditors. By statute the deed may be protected against the possibility of being suspended by sequestration proceedings. (See also Protected Trust Deed)

 

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Ultra vires - Beyond the powers. Thus acts or deeds of those to whom powers are granted may be reduced if they exceed the substance of the delegated powers or if requisite procedures have not been observed. The term is used especially in the context ofdelegated legislation and the activities of central and local government, trustees and companies.

Unfair Preference - An agreement voluntarily entered into by a debtor who is knowingly insolvent which has the effect of creating a preference in favour of a creditor to the prejudice of the general body of creditors. Such a preference was formerly misleadingly known as a ‘fraudulent preference’. A permanent trustee may take action to have such a transaction set aside.

 

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Vesting - A legal term meaning “becoming the property of a person”; a debtor’s sequestrated estates are ‘vested in’ - ie become the property of the permanent trustee.

Voluntary Trust Deed - An alternative to sequestration, entered into voluntarily, by which a debtor transfers his estate to a trustee (in this case chosen by the debtor rather than appointed by the court), who will administer it for the benefit of the creditors. (See also Protected Trust Deed)

 

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Warrandice - An express or implied personal obligation (personal warrandice) of a granter, eg, a seller or lessor, especially of heritable property, to indemnify the granter in case of eviction on some grounds before the grant or sale. Also: Simple warrandice, where the granter undertakes not to grant any future deed which will conflict with the right transferred. Warrandice from fact and deed, where the granter undertakes that he has not granted and will not grant any such deed or do anything to conflict with that right. Absolute warrandice (the usual form) where it protects the buyer from anything which conflicts with that right.

Warrant Sale - A Warrant Sale is the procedure following upon a poinding whereby the goods which have been valued may be sold in satisfaction of a debt. A form of diligence for a debt by which a creditor obtains a warrant from the sheriff authorising the public sale of articles have been poinded.

Warrant to Cite - An order granted by the court authorising the petitioning creditor to cite the debtor to appear on the date stated to show that the grounds for his sequestration no longer exist. If the debtor fails to appear or to show cause then sequestration will be awarded and will be effective from the date the Warrant to Cite was granted.

Written Comments - A written statement by an interim trustee giving what are, in his opinion, the causes of the debtor’s insolvency and to what extent the debtor’s own conduct may have contributed to that insolvency; these comments are absolutely privileged. (See also Absolute Privilege)