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Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 4 May 2021
  6. Current session: 13 May 2021 to 19 December 2025
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Displaying 1621 contributions

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Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

Yes.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

Yes—I am sorry; I did not mean to say yes to that. The Scottish Government, at this stage, has not given full consideration to whether the bill’s provisions, or some of them, might apply to existing contracts. That is not unusual for Government bills, as questions about transitional provisions are often looked at once a bill has been fully considered by Parliament.

Once the provisions of the bill have been agreed by the Parliament, officials will turn to questions of what transitional provisions might be needed. There are provisions to enable that in sections 24 and 25. My provisional view is that the bill’s provisions will apply for contracts that are entered into after the measures come into force. That has been echoed by witnesses who have given evidence to the committee.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

My understanding is that it is normal for transitional provisions to be considered after the Parliament has agreed the final content of the bill. That allows us to consider the best approach to commencement. If some detailed transitional or other ancillary provisions are needed that are better left for regulation, it gives us time to engage with stakeholders on the best way forward.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

Absolutely. If the committee has recommendations about drafting and it thinks that they can make the bill stronger, I am always happy to consider them.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

The provisions in the bill are the result of a significant law reform project that was undertaken by the Scottish Law Commission, which included four discussion papers on different areas of contract law. It was clear from the responses that the SLC received that it was not agreed that the law in the other areas of contract law should be reformed. It was thought that, in some areas, the law would be best left for the courts to develop. That includes issues such as the battle of the forms, interpretation and penalty clauses. When the Scottish Government consulted in 2024, respondents agreed with that position, with the exception of the law of retention, on which I intend to lodge amendments to reform. I see this as a very focused bill, which introduces much-needed reform in contract law.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

One thing that they will provide is more scope for remedies to solve any conflicts. That will be clearer. I do not know whether Michael Paparakis has anything to add on that.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

Some of the proposed reforms to the law of remedies for breach of contract relate to mutuality of contract. The bill seeks to abolish any rule of law to the effect that a party who is in breach of contract is not entitled to exercise any right or pursue any remedy arising from a breach of contract by the other contracting party.

A key feature of the bill in relation to the law of remedies concerns the restitution of benefits after termination of the contract for a party’s material breach. The bill provides that, where a contract is rescinded for breach and a party to the contract has received any benefit from the performance by another party of an obligation under the contract, the benefit must be returned, provided that the other party concurrently returns any benefit that it has received. The bill includes detailed rules on the valuation of non-money benefits for compensation, including payment for use of benefits that have been improved by the recipient.

Another provision concerns remedies for breach in relation to contributory negligence through amendment of the Law Reform (Contributory Negligence) Act 1945.

I know that this is all very technical, but that is a bit more detail on exactly what the bill goes into.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

I will bring in Michael Paparakis to speak to the technical side.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

I understand that the RIAS wrote to the committee, expressing its view that provisions on retention should not be included. Its response to the committee seems to imply that the provisions introduce construction-specific rules into general contract statute, but that is not the case. Retention is a general remedy in the Scots law of contract, and it is in need of clarification, as the responses to our consultation will attest to.

The RIAS also states that the provisions risk incoherence with existing construction legislation, but any specific legislation on construction would take precedence over these more general provisions. To my mind, then, there is no risk of incoherence.

Dr Christie, who has an interest in construction law, did not in his evidence to the committee raise concerns about the coherence of the law, nor have such concerns been raised by others.

Delegated Powers and Law Reform Committee [Draft[

Contract (Formation and Remedies) (Scotland) Bill: Stage 1

Meeting date: 2 December 2025

Siobhian Brown

I will ask Colin Gilchrist and Michael Paparakis, because they have been dealing on the official side.