2010-09-01
Author | Martin Hogg,Daniel J Carr,J K Mason,Cormac Mac Amhlaigh,Andrew J M Steven,Peter Duff,Hector MacQueen,Malcolm M Combe,Fiona Leverick,Graeme Laurie,Chris Himsworth,Findlay Stark,Claire McDiarmid |
Published date | 01 September 2010 |
Pages | 451-497 |
DOI | 10.3366/elr.2010.0305 |
Date | 01 September 2010 |
Unlike other legal systems, Scots law has a fairly narrow and underdeveloped concept of pre-contractual liability. This reflects the fact that, traditionally, a “bright line” approach has been taken to the question of liability in contract, the bright line lying at the moment of contract formation. Before that point, the parties are deemed to be at arms' length, and there is said to be no possibility of either party incurring duties in contract to the other; after contract formation, the duties imposed under the contract can give rise to liability in appropriate circumstances. The only recognised exception to this bright-line approach (setting aside possible liabilities in delict or unjustified enrichment between negotiating parties) has been the availability of a limited remedy for wasted pre-contractual expenditure based upon the line of cases beginning with (1823) 2 S 379. Or so it is suggested in [2010] CSIH 13, 2010 GWD 13-237.
The facts of the case concerned the negotiation of an intended contractual relationship between the pursuer, a shopkeeper, and the defender, a commercial enterprise, under which the pursuer was to be granted a franchise to operate a Londis branded grocery store. Mr Khaliq owned two neighbouring shops in Glasgow, from one of which (Unit 1) he operated a fast-food outlet, the other of which (Unit 2) he had leased to a third party, though the lease was about to come to an end. Mr Khaliq obtained information from Londis about its franchising operation, including an application form to become a member of the Londis trading group. Thereafter the local Londis representative visited Mr Khaliq and advised him to switch the fast-food outlet to Unit 2 and to refurbish Unit 1 in order that he could operate a Londis store from it. He was advised to use a shop refitting company (Swallow) recommended by Londis. Mr Khaliq signed and submitted a Londis membership application form, together with a cheque for the Londis membership fee. Londis cashed the cheque and subsequently approved Mr Khaliq's...
To continue reading
Request your trial