Faculty not convinced of need for contract remedies Act

A general statutory restatement of the law on remedies for breach of contract would not mean real improvement, the Faculty of Advocates said today.

Its comments come in a response to a Scottish Law Commission discussion paper published during the summer, which proposed that a restatement could make the law clearer and more comprehensible, and might help remove practical doubts and difficulties that have arisen in Scots law (click here for news item).

However, in a detailed submission, the Faculty says that it is not persuaded of the need for a general statutory restatement, and is 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”, it concludes.

Its responses to the individual questions posed by the Commission indicate that in general terms Faculty believes that the principles currently guiding Scots law are sound, are evolving as required through case law, and that a statutory restatement might not preserve the same flexibility of response. "We remain of the view that the law is evolving and developing, and that there is no compelling reason for statutory intervention at this stage", is a typical comment.

However, Faculty indicates its views on the features proposed by the Commission as possibly to be included in any such restatement. It agrees with the Commission's overall approach of securing, as nearly as may be, performance of the relevant obligation as the guiding principle of any reform.

It also notes that there are specific aspects of the law of remedies for breach of contract which could usefully be clarified and improved through reforming legislation, even in the absence of a general restatement.

Click here to view the full response.