A disposition in Scots law is a formal deed transferring ownership of corporeal heritable property. It acts as the conveyancing stage as the second of three stages required in order to voluntarily transfer ownership of land in Scotland. The three stages are:
The Contractual Stage (The Missives of Sale) The Conveyancing Stage The Registration Stage
In the conveyancing stage of the transfer of ownership of land, a formal document called a disposition, is created and subscribed by the Disponer (the person granting the disposition or 'the Seller') and the Disponee (the person receiving the disposition or 'the Buyer'). Example dispositions are available to view on the Property Standardisation Group website.
Principles of transfer: why dispositions are required in Scots Law
An absolute singular (unititular) right of ownership
Scots law follows the Roman law principle that the right of ownership in property (for definition of term see above) is absolute. Other legal systems such as United States jurisdictions consider ownership as a 'bundle of rights' which can be separated into different components and separated amongst different individuals. Instead in Scots law, ownership is a singular unitary right, that cannot be broken down into different components, it can only be transferred to another in whole or be encumbered through the creation of inferior real rights. The owner of a 'thing' has the right to usus, fructus, abusus - the right to use, to the fruits (enjoyment) and the right to abuse or destroy the property. In contrast to historically feudal systems such as England & Wales or Scotland (Davidian Revolution - 28 November 2004), ownership is not split among individuals, such as interests held by a feudal superior. Because ownership is a single right, when it is transferred, it transfers instantaneously, with the previous Owner being deprived of all ownership in the property, at the moment of registration in the Land Register.
Principle of traditio
Scots law follows the principle that traditionibus non nudis pactis dominia rerum transferuntur: ownership is transferred by delivery (or other conveyance) and not by bare contract. As discussed above, a contract or delict only creates binding personal obligations, rights in rem (real rights) are not capable of transfer by contract alone. Instead a conveyance (Ie: a formal transfer of the property) is required. Personal rights, rights in personam, such as those like the Missives of Sale (ie: a contract for the sale of corporeal heritable property) alone does not transfer the real right of ownership in itself. Without a conveyance, ie: the deed of disposition, and public act (see below), real rights cannot be validly created in Scots law.
Intent and consent
Where a voluntary transfer is made, the conveyance itself must be made with the intent and consent of both parties. The disponer (usually a Seller under a prior contract of sale) must have the intention to be divested of ownership and the disponee (usually a Buyer under a prior contract of sale) must have the intent to acquire the property. The intent and consent of both parties will be expressed in the disposition deed itself.
Principle of abstraction
Only a conveyance, as a separate legal act, can effect the transfer agreed to by contract between the parties. Scotland has an abstract property legal system, meaning the conveyance does rely on the cause of the transfer. In Scots law the recognised causa for transfer of property are: loan for consumption (deriving from the Roman mutuum), gift barter (an exchange is termed a Contract of Excambion) sale ex facie absolute transfer in security transfer in trust, expressly or otherwise.