Legal Definitions - perinde est ac si scriptum non esset

This Latin phrase, used in Scots law, translates to "it is the same as if it had not been written." It describes a legal principle where a written document, or a specific part of it, is considered legally void and without effect because its meaning is so unclear, ambiguous, or incomplete that it fails to adequately convey the intended purpose or instruction. In such cases, courts will not attempt to interpret or supplement the document with outside information; instead, they treat the problematic text as if it never existed, rendering it unenforceable due to its inherent uncertainty.

Here are some examples illustrating this principle:

• Contract for Services: Imagine two businesses attempting to form a contract for ongoing IT support. The written agreement specifies the parties and the general type of service but leaves crucial details like the specific scope of work, the response times for issues, the service level guarantees, and the pricing structure entirely blank or states them as "to be mutually agreed upon later" without any framework for future agreement.

  Explanation: Because these fundamental terms are missing or too vague to be objectively determined, a court applying the principle of perinde est ac si scriptum non esset would likely rule that the contract, or at least the service terms, are unenforceable. It's as if the parties never wrote down a complete agreement for the IT support, making it impossible for a court to enforce any specific obligations.

• Last Will and Testament: A person's last will and testament includes a clause stating, "I leave some of my personal belongings to my relatives who need them most." However, the will does not specify which belongings, which relatives, or provide any objective method for determining "need."

  Explanation: This clause is so imprecise that it fails to convey a clear instruction. A court would treat this particular instruction as if it had never been written. Consequently, those personal belongings would not be distributed according to this vague intention, but would instead be distributed according to other valid clauses in the will (e.g., a residuary clause) or, if none apply, through the laws of intestacy (distribution without a valid will), because the written instruction was too uncertain to be legally effective.

• Property Deed - Right of Way: A property deed attempts to grant a neighbor a "right of way" (an easement allowing passage) across a portion of the grantor's land. The deed states, "The neighbor may cross my property as needed to access their garden." However, it fails to specify the exact location, width, or nature of this right of way, and there are multiple possible paths to the garden.

  Explanation: The description of the right of way is so vague that it's impossible to identify a specific, enforceable path. Because the grant lacks the necessary specificity to define the burdened land or the exact nature of the right, a court would likely consider this clause to be perinde est ac si scriptum non esset. The right of way would be unenforceable, and the property owner would not be legally bound by this ambiguous grant, as if it had never been written into the deed.