Contract (Formation and Remedies) (Scotland) Bill: Fairer Scotland Duty - assessment not required declaration

Rationale for decision

The Contract (Formation and Remedies) (Scotland) Bill implements recommendations of the Scottish Law Commission (SLC) published in its Report on Review of Contract Law: Formation, Interpretation, Remedies for Breach, and Penalty Clauses.^[1] Contract law impacts on day to day economic life in relation to all types of transactions and for businesses and individuals alike. Many contracts are made, carried through, and become the subject of disputes between parties who have no professional assistance. The Scots law of contract has largely developed as a matter of common law which limits the law’s accessibility to those without legal training. It is therefore important economically and socially that the contract law regime in Scotland is fit for 21^st century conditions. The Bill restates and reforms aspects of the law of formation of contract and three aspects of the law of remedies for breach of contract. The overall policy aim is to produce rules that are clear, certain and accessible as possible.

Part 1 of the Bill comprises a comprehensive statement of the law on formation of contract, including a number of specific reforms. In a number of areas the law of formation of contract is uncertain because there is no direct Scottish authority in point. A comprehensive statutory scheme ensures there are authoritative answers and improves the law’s accessibility to all types of users, within and without the legal profession by bringing as much as possible of the law of formation of contract into one place.

Part 2 of the Bill contains provisions which reform the law of remedies in distinct areas: mutuality; restitution after rescission; retention; and, contributory negligence.

Part 3 of the Bill contains some general provisions.

The reforms to the Scots law of formation of contract and available remedies for breach of contract made in the Bill do not specifically address underlying aspects of socio-economic disadvantage, as laid out in Part 1 of the Equality Act 2010.