Scottish Law Commission - contract law review report: consultation

Introduction

This consultation seeks general views on the Scottish Law Commission – Report on Review of Contract Law: Formation, Interpretation, Remedies for Breach and Penalty Clauses^[1] ("the SLC Report"). In recognition that it has been 6 years since the Report was published and in line with the process the Scottish Ministers have set out to the Delegated Powers and Law Reform Committee in respect of potential Scottish Law Commission (SLC) Bills^[2], the consultation will seek to establish:

• Whether the landscape around this area of the law has changed since the Report was published and if so whether the changes are material to the recommendations contained in the Report.
• That the consultation views received by the SLC are still broadly held.

The Scottish Government has had an opportunity to carefully consider the recommendations made in the Report. It welcomes the thorough and comprehensive review that the SLC has undertaken and shares the view that the reforms should make the law clearer and more accessible. The Scottish Government is therefore supportive of the recommendations and the principles behind them.

In 2021, the Scottish Government committed to giving consideration to a longer-term programme of implementation of SLC Bills during this parliamentary session^[3]. This included consideration of SLC Reports on matters such as trusts, judicial factors and contract law. Bills taking forward recommendations made by the SLC in the reports on trusts and judicial factors have been introduced to Parliament using the parliamentary procedure for Bills that implement SLC recommendations^[4]. The Trusts and Succession (Scotland) Act 2024 has received Royal Assent. The Scottish Government has begun work on two other SLC reports, including the Report on Review of Contract Law which this consultation considers^[5]. Should this consultation bring to light significant or substantive issues for which the SLC did not make a recommendation then the Scottish Government would have to consider carefully whether including any such provision in future legislation, if that is the decision taken, would meet Parliament's criteria for an SLC Bill.