Definition
In Scots law, the negotiations, discussions, and preliminary exchanges between parties leading up to the formation of a contract. Communings are the back-and-forth of offer, counter-offer, and bargaining that precede final agreement — the formative stage of a contract before consensus has been reached and a binding obligation arises.
The doctrine carries significant legal weight in Scots contract law: statements made during communings are generally not binding as contractual terms, but they may be relevant to questions of interpretation, misrepresentation, or whether consensus in idem (mutual agreement) was ever achieved. The communings period ends when the contract is concluded; what was said or written during it may or may not be admissible to construe the final agreement, depending on applicable rules of evidence and the parole evidence principle.
Common Language
Modern common usage (Wiktionary): Simply the plural of "communing" — acts of communicating intimately or spiritually; being in close communion with another person or with nature.
Historical common usage (Webster's 1913): "Communing" carries the sense of intimate conversation or spiritual fellowship — a sharing of thoughts and feelings at a close personal level.
The legal meaning bears almost no resemblance to the common one. In daily English, communing suggests something contemplative or interpersonal. In Scots law, communings is a precise technical term for the pre-contractual negotiation record — adversarial in character, documented in correspondence, and legally consequential as evidence of what was (or was not) agreed.
Common Confusion
Communings should not be confused with the concluded contract itself. A persistent research trap is treating written exchanges during communings as contractual terms. Under Scots law doctrine, the communings terminate when the contract is formed, and the final document or exchange of consent governs. Researchers consulting 19th-century Scottish sources may encounter disputes over precisely when communings ended and when a binding contract began — a line that courts drew carefully.
Communings should also be distinguished from misrepresentation claims arising from pre-contractual statements. While communings may contain statements that ground a misrepresentation action, the doctrine of communings concerns the interpretive and evidential status of pre-contractual negotiations, not the separate law of pre-contractual liability.
Why It Matters in Research
This term is almost exclusively a term of Scots law and appears rarely in English, Irish, or American legal materials. Researchers working in the Law Mind corpus should note:
Jurisdictional confinement. Communings does not appear as a operative legal concept in English common law, American law, or most Commonwealth jurisdictions. When the term surfaces in 19th-century or early 20th-century legal writing outside Scotland, it is typically a direct borrowing or scholarly reference to Scots doctrine — not evidence that the doctrine applies in that jurisdiction.
Pre-contractual negotiation analogs. Researchers approaching communings from an English or American contract law background should recognize that the underlying question — what legal weight do pre-contractual negotiations carry? — has parallels in common law doctrines such as the parol evidence rule, promissory estoppel, and misrepresentation. Cross-referencing those doctrines in the corpus will enrich comparative research, but the doctrinal frameworks differ materially.
Evidence questions. In Scots practice, the admissibility of communings to interpret or contradict a concluded contract has been a contested issue across periods. Historical sources may reflect older, more permissive evidentiary attitudes toward pre-contractual materials. Researchers should not assume that a 19th-century Scottish treatise's treatment of communings reflects current Scots law on contractual interpretation.
Historical dictionary consistency. The four source dictionaries defining this term are in full agreement, offering nearly identical single-sentence definitions. This convergence signals that the term was well-settled in legal usage but was understood to be narrow and jurisdiction-specific — none of the sources elaborates further, reflecting the term's limited footprint outside Scotland.
Historical Dictionary Support
All four historical sources — Black's (1st ed.), Black's (2nd ed.), Bouvier's, and Rapalje & Lawrence — define communings identically as "the negotiations preliminary to the entering into a contract" under Scots law. There is no divergence, no evolution of meaning across editions, and no elaboration.
Bouvier's is noteworthy for immediately pivoting from communings to communio bonorum, a Latin civil law term for community of goods — a reminder that 19th-century legal dictionaries organized entries alphabetically and contextually, and that proximity on the page should not be read as doctrinal connection.
What all four sources omit: any discussion of the evidentiary consequences of communings, the moment at which they are deemed to end, or their relationship to the parol evidence principle. Researchers relying solely on these definitions will have the term's meaning but not its legal operation. Scottish institutional writers — particularly Stair, Erskine, and Bell — are the proper sources for doctrinal depth.
Jurisdictional Note
Communings is a term of Scots private law and carries its technical meaning only in Scottish legal materials. Researchers working in English, American, or other common law sources who encounter the term should treat it as a borrowing or comparative reference, not evidence of an applicable local doctrine.
Encyclopedia Cross-Reference
The Law Mind Civil Procedure & Evidence Encyclopedia: Spousal Privileges — Testimonial Privilege and Marital Communications (civpro_160). Relevant for researchers examining the broader question of when communications between parties are legally protected or admissible, including comparative context for pre-contractual communications.