Faculty: Some rewording needed in draft bill on contract formation

In its response to a consultation on the draft, the Faculty said: “When reading this draft Bill as a whole, it appears to us that (for the reasons we have endeavoured to explain in our comments on the individual sections) there are some difficulties in understanding the concept of ‘notification’ as it flows through the Bill, and in particular how it relates to agreement through conduct, and when conduct can be said to reach a person in terms of section 3.”

In relation to when a contract is concluded, the Faculty notes that partial agreement cannot constitute a contract if one party requires agreement on a specific matter, and that has not been achieved.

“We observe that the relevant note states that there is no agreement ‘until’ that matter is agreed, whereas the draft Bill uses the word ‘unless’. For clarity about the point at which conclusion of the contract occurs, it may be preferable for the wording to be consistent,” added the Faculty.

Details of the bill and a covering note and explanatory notes can be found on the Commission’s website here.