Contract (Formation and Remedies) (Scotland) Bill: business and regulatory impact assessment

Footnotes

1 R & J Dempster Ltd v Motherwell Bridge and Engineering Ltd 1964 SC 308, 332 (Lord Guthrie).

2 The Business Experts and Law Forum (BELF) was established by the then Cabinet Secretary for Justice to enable and encourage businesses to choose Scotland as the seat of their business and legal activities. Membership comprised individuals from the Scottish Government, the Royal Bank of Scotland Group, the Law Society of Scotland, the Committee of Scottish Clearing Banks, the Institute of Chartered Accountants Scotland, Norwich Union, Glasgow Caledonian University, CBI, Shepherd and Wedderburn LLP, the [then] Dean of the Faculty of Advocates, and a legal adviser to the Civil Courts Review.

3 Two further areas of work within the project related to Third Party Rights and Execution in Counterpart. These have already led to legislation: the Contract (Third Party Rights) (Scotland) Act 2017 (which came into force on 26 February 2018) and the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 (which came into force on 1 July 2015 and introduced signing in counterpart into Scots law).

4 The DCFR was prepared and published in 2009 by an academic group from the European Commission as part of an effort to promote more consistent and coherent legislation across the EU in contract law. It provides a contemporary statement of contract law based on comparative research from across the European Union.

5 The UNIDROIT Principles of International Commercial Contracts are a set of rules for international contracts drawn up by an international working group of the inter-governmental organisation UNIDROIT (the International Institute for the Unification of Private Law).

6 [2015] UKSC AC 1619.

7 [2017] UKSC 24, [2017] 2 WLR 1095.

8 [2015] UKSC 67, [2016] AC 1172.

9 Gillian Craig, “Contracting into the 21st Century – Contract (Formations) (Scotland) Bill”, 12th October 2017.

10 CMS, “Contract Formation: So Long, Postal Acceptance?”, 27.09.2017.

11 Ibid.

12 Gillian Craig, “Contracting into the 21st Century – Contract (Formations) (Scotland) Bill”, 12th October 2017.

13 Shepherd & Wedderburn, “Goodbye ‘Postal Acceptance Rule’, Hello ‘Out-of-Office Message’ Rule?”, 05 Sep 2017.

14 Report on Interpretation in Private Law (Scot Law Com No 160, 1997).

15 Investors Compensation Scheme v West Bromwich Building Society [1997] UKHL 28, [1998] 1 WLR 896.

16 Forster v Ferguson & Forster, Macfie & Alexander 2010 SLT 867 and McNeill v Aberdeen City Council (No 2) 2014 SC 335.

17 Report on Penalties Clauses (Scot Law Com No 171, 1999).

18 [2015] UKSC 67.

19 The Scottish Government consultation on the Report. Responses were received from 9 consultees, including Hector MacQueen, Lorna Richardson, Morton Fraser MacRoberts, Dumfries and Galloway Council, the Centre for Scots Law, the Competition and Markets Authority (CMA) and CMS.

20 Retention is a “defensive” or “self-help” remedy which is based on the principle of mutuality. A contracting party confronted with a breach by the other party has a right to withhold temporarily performance of its own obligations under the contract until such time as the contract-breaker cures its breach.

21 Scottish Government consultation on the law of retention. The consultation was open for 8 weeks and Scottish Government officials arranged two seminars to discuss the proposed statutory scheme, which were attended by academics and legal practitioners. Responses were received from 12 consultees, including legal practitioners, the Scottish and Northern Ireland Plumbing Employers Federation, a local authority, the Scottish Law Agents’ Society, and academics.

22 The remedies mentioned are “self-help” in that their exercise does not require any prior judicial order.

23 See P Cane, Atiyah’s Accidents, Compensation and the Law (8th edn, 2013) p 269. Empirical work on how judges in the UK use contributory negligence to decide cases is being conducted by James Goudkamp and Donal Nolan of Oxford University: see J Goudkamp and D Nolan, “Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions” (2016) 79 Modern Law Review 575 (stating at p 578: “[R]eliable information about judicial decisions on the doctrine of contributory negligence should facilitate the settlement of disputes by giving litigants and their advisers a clearer picture of the likely outcome of possible litigation”); J Goudkamp and D Nolan, “Contributory Negligence in the Court of Appeal: An Empirical Study” (2017) 37 Legal Studies 437; J Goudkamp and D Nolan, “Contributory Negligence and Professional Negligence: An Empirical Perspective”, in K Barker and R Grantham (eds), Apportionment in Private Law, (2018).