The Official Report is a written record of public meetings of the Parliament and committees.
All Official Reports of meetings in the Debating Chamber of the Scottish Parliament.
All Official Reports of public meetings of committees.
Displaying 2636 contributions
Delegated Powers and Law Reform Committee [Draft[
Meeting date: 2 December 2025
Siobhian Brown
The postal acceptance rule means that contracts can be formed without one party ever knowing that their offer has been accepted, and I agree with the majority of stakeholders that that is at odds with common-sense expectations. The law causes uncertainty and confusion for anyone who is not aware of the postal acceptance rule, and I understand that, in practice, it is commonly excluded by well-informed parties. Abolishing the rule will mean that the law will align better with reasonable expectations of most people, including small and micro businesses. As I have said several times, people have been calling for the rule to be abolished for more than 50 years.
Delegated Powers and Law Reform Committee [Draft[
Meeting date: 2 December 2025
Siobhian Brown
Yes, I do.
Delegated Powers and Law Reform Committee [Draft[
Meeting date: 2 December 2025
Siobhian Brown
Yes.
Delegated Powers and Law Reform Committee [Draft[
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[
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[
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[
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[
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[
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[
Meeting date: 2 December 2025
Siobhian Brown
I will bring in Michael Paparakis to speak to the technical side.