Faculty: No need to restate law on remedies for breach of contract

The Scottish Law Commission raised the issue of a restatement in a wide-ranging discussion paper, saying the idea was previously taken nowhere in 1999 following a mixed reaction, but it was now worth “testing the waters of opinion once more”.

The commission said: “A general statement would make the law more accessible to all, including practitioners and the judiciary, and allow parties choosing Scots law to govern their contracts with knowledge of what that entailed.”

However, in a detailed response to the discussion paper, the Faculty stated that it was not persuaded of the need for a general statutory restatement, and was not in favour of it.

“We do not consider that a general statutory restatement is required or that, if enacted, it would be likely to represent in practice an appreciable improvement on the current state of the law,” said the Faculty.

“We do not consider that there should be a general statutory restatement.”

Nonetheless, the Faculty indicated its views on the features which any general restatement ought to have. It also noted that there are specific aspects of the law of remedies for breach of contract which could usefully be clarified and improved by way of statutory intervention, and offered suggestions as to how these specific issues could effectively be dealt with, even in the absence of a general restatement.