Because facts are established by following processes there is an important
consequence. A lawyer can control what is done. By contrast in litigation a
lawyer cannot control the result. They can only strive their best to win the case
for their client.
Processes can be anything
that the applicable law requires. There are,
however, some common types of processes, which will be mentioned by way
of illustration.
Expression of Intention
Some transactions involve a party doing something of their own volition.
Examples are making a will or a contract. In these cases, for the transaction to
be effective, it is necessary that the parties express their intention sufficiently
clearly. Each party must express their willingness to enter the transaction. So,
for example, if Annabelle and Benjamin want to make a contract they have to
use words that do two things. (i) They make promises to each other of what
they intend to do. These promises are distinct from mere expressions of
possible interests. (ii) They indicate clearly, even if implicitly, that these
promises are to be part of a contract as distinct from a mere social
arrangement.
Written Requirements
Processes often involve using written words. There are two basic possibilities.
First, the law may not require that the transaction be totally in writing, but that
it is merely evidenced by a written note. This requirement was imposed, for
example, by the Statute of Frauds 1677
(UK) on a number of contracts.
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These include a contract of guarantee for a debt, a contract for the sale of land
and a contract for the sale of goods (although part performance by vendor or
purchaser will exempt the need for written evidence of a contract for the sale
of goods).
Second, the law may require that the transaction be entirely in writing. In
practice, where written words are required, often the lawyer drafts a document
for a party to use in the transaction.
Where a document has to be entirely in writing there may be some additional
procedural requirements. Some examples are:
(1)
The document has to be a deed. From the point of view of formalities,
to become a deed a document must be signed, sealed and delivered. From the
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This statute was received into or applied in many British colonies,
including Canada, the United States and Australia. In some cases the statute may
still operate in its original form. Or it may have been incorporated into domestic
law by statute, which may have also altered, abolished or added to its provisions.
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