Oral undertakings and the time for performance (SRA Code of Conduct for Solicitors, para 1.3)
Tomasz Wilk, a solicitor, acts for the seller of a house. Shortly before exchange of contracts, the buyer's solicitor, Funmi Okafor, telephones him about a missing building regulations completion certificate. Tomasz says: "Leave it with me. I will send you the certificate once the council issues it to us." No date is mentioned and nothing is put in writing. Relying on this, Funmi advises her client to exchange. The council issues the certificate to Tomasz's firm a week after completion, but four months later Tomasz has still not sent it, as he has been busy with other matters.
Which of the following best describes Tomasz's position under the SRA Code of Conduct for Solicitors?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: He has given an undertaking, and as no timescale was agreed he must perform it within a reasonable amount of time.
THE RULE TO REMEMBER
An undertaking can be oral and need not use the word "undertake"; it must be performed within the agreed time or, if none was agreed, within a reasonable time (SRA Code para 1.3).
Oral undertakings and the time for performance (SRA Code of Conduct for Solicitors, para 1.3)
Paragraph 1.3 of the SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs requires that "You perform all undertakings given by you, and do so within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time." The SRA Glossary defines an undertaking as a statement, given orally or in writing, whether or not it includes the word "undertake" or "undertaking", to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done. Tomasz's oral promise to send the certificate, on which Funmi reasonably relied by advising exchange, is an undertaking. No timescale was agreed, so he had to perform it within a reasonable time of receiving the certificate. A delay of four months for something already in his firm's possession is very unlikely to be reasonable.
Why A is wrong: The SRA Glossary defines an undertaking as a statement given orally or in writing.
Why B is wrong: An undertaking exists whether or not the words "undertake" or "undertaking" are used.
Why C is wrong: Where no timescale is agreed, para 1.3 requires performance within a reasonable amount of time.
Why E is wrong: Reasonable reliance by the recipient is enough; no written acceptance is required.
That's today's practice done. Another featured question tomorrow.
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