The Scottish Law Commission's Contract Report 2018
| Author | |
| DOI | 10.3366/elr.2018.0508 |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| Pages | 398-405 |
The Scottish Law Commission's Review of Contract Law in the light of the Draft Common Frame of Reference (“DCFR”) came to its conclusion with the publication of a final Report on 29 March 2018 (henceforth “the 2018 Report”).
Despite this quite wide coverage, the reforms proposed and the draft Bill provisions appended to the 2018 Report are relatively few in number. The major element is a legislative restatement of the law on formation, which includes however the abolition of the postal acceptance rule and the provision of a specific rule on when electronic communications between parties negotiating a contract take their legal effect. Three specific reforms are proposed on remedies for breach, in relation to the principle of mutuality, restitution following rescission, and contributory negligence.
The thinking behind the recommendation of a general statutory restatement of the law on formation is founded first on the Commission's mission to simplify, modernise and improve the law, which includes rendering it more accessible and available. A statutory statement tells people – individuals, small businesses, others lacking legal advice – how to go about the important business of forming contracts. For lawyers, it means no – or less – need to consult textbooks and analyse centuries' worth of case law to find out what the law is. The statute also provides answers to some problems which are not answered in the present law but seem to need such answers.
The draft Bill makes clear that the guiding principle is that contract is a matter of sufficient agreement (in the sense that the essentials of the contract in question are agreed by the parties with enough clarity), showing the parties' intention to be bound to each other. Offer and acceptance is one way of showing such agreement, and is dealt with in detail in the draft; but this is not the only way to conclude a contract, and it will not become necessary to press difficult facts into the offer-acceptance slots, provided that sufficient agreement between the parties in the sense already mentioned is objectively apparent. Nor need the parties be agreed on all matters under discussion between them: there can be a contract if, again, there is sufficient agreement on the essentials.
The draft Bill does include some important reforms alongside its re-statement of the existing law. As already mentioned, they include abolition of the postal acceptance rule, under which a contract is concluded by an offeree posting its acceptance. The 2018 Report finds no good policy reason in modern conditions for privileging postal over other forms of acceptance communicated between remote parties. The rule is commonly excluded by those acting with legal advice. The 2018 Report...
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