Contract Law – Review of Retention: consultation
A consultation paper which seeks views on what any reforms to the law in relation to retention of performance of contractual obligations should look like.
Recent Case Law
4. The subsequent judicial opinions, which have been said to have contributed to the lack of clarity are: -
JH & W Lamont of Heathfield Farm v Chattisham Ltd [2018] CSIH 33
Whilst the 3 judges in this case all reached the same decision, their views on how retention operates were very different. For example: there were differing views on whether or not all obligations are counterparts of one another; whether the right to retain applies only in respect of substantive, as opposed to ancillary, obligations; whether the right to retain is only available to secure future performance by the other party to the contract, a position which conflicts with Inveresk;[3] and whether a breach needs to be material or not before retention is available. The case also demonstrates that the equitable control on the right to retain is underdeveloped.
Jones v Craigton Holdings Ltd [2024] CSOH 33
In this case Lord Braid did not consider that retention as a matter of right could be exercised only to secure future performance of a substantial obligation owed by the other party, conflicting with the position taken by some members of the bench in JH&W Lamont.
Contact
Email: ContractLaw2024@gov.scot
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