General 25 15 Interpretation of Part 1 (1) In this Part (except where the context otherwise requires)— “acceptance” is to be construed in accordance with section 7, “counter-offer” is to be construed by reference to section 8(2), “offer” is to be construed in accordance with section 4 (and includes a 30 counter-offer), “offeree” means a person to whom an offer is made, and “offeror” means a person who makes an offer. (2) In this Part (except where the context otherwise requires), a reference to a “postal service” is to be construed in accordance with the definition of “postal services” in 35 section 27(1) of the Postal Services Act 2011. (3) In this Part, any reference to the taking effect of a notification is to be construed in accordance with section 13. 7 Contract (Formation and Remedies) (Scotland) Bill Part 2—Remedies for Breach of Contract P ART 2 R EMEDIES FOR B REACH OF C ONTRACT Autonomy of parties 16 Autonomy of parties: application of sections 17 to 21 and of the Law Reform 5 (Contributory Negligence) Act 1945 (1) Sections 17 to 21 apply in relation to any breach of contract— (a) except in so far as the parties to the contract have agreed otherwise, and (b) except that if the contract includes any term which the parties intend should continue to have effect even after the contract is rescinded, those sections are 10 without prejudice to that term. 1 (2) The parties to a contract may agree that the Law Reform (Contributory Negligence) Act 1945 is to be disregarded in determining any question as to reducing, by virtue of a breach of the contract by a party, any damages recoverable from the other party. (3) An agreement of the kind referred to in subsections (1) to (2) may be express or implied. 15 Mutuality of contract 17 Mutuality of contract (1) Subsection (2) applies where any two parties to a contract (those parties being in this section referred to as “PA” and “PB”) are each in breach of the contract. (2) PA is entitled to exercise any right, or pursue any remedy, arising out of PB’s breach 20 provided PB’s breach occurs before the contract is lawfully rescinded for PA’s breach. (3) But subsection (2) does not entitle PA to require PB to perform the contract in so far as— (a) such performance falls due after the contract is so rescinded, or (b) PB is (for PA’s breach) lawfully withholding such performance. 25 Rescission for breach of contract 18 Rescission for breach of contract: return of benefits received (1) On a contract being lawfully rescinded for breach of contract, this section and sections 19 to 21 apply if a party to the contract received any benefit from the performance by another party of an obligation under the contract. 30 (2) But this section and sections 19 to 21 do not apply in respect of any benefit which fully reciprocated the performance of such an obligation by the party which received the benefit. (3) The party which received the benefit is in those sections referred to as “the recipient”. (4) The benefit must be returned to the other party provided that the other party concurrently 35 returns any benefit it received from the performance by the recipient of an obligation under the contract. (5) In so far as the performance was a payment of money, the amount received must be repaid. 8 Contract (Formation and Remedies) (Scotland) Bill Part 2—Remedies for Breach of Contract (6) In so far as the benefit was not a payment of money but is transferable by the recipient, it must be transferred to the other party unless it would be unreasonable or impracticable to do so, in which case its return is to be by the payment to the other party of its value. (7) In so far as the benefit was not a payment of money and is not transferable by the 5 recipient, its return is to be by the payment to the other party of— (a) its value, or (b) if it has been disposed of for an amount greater than its value, that greater amount. (8) The requirement to return a benefit includes a requirement to return the fruits of the benefit (whether natural or civil). 10 19 Value of benefit 1 (1) This section applies where the recipient is required, by section 18(6) or (7), to pay the value of a benefit. (2) The payment is the value of the benefit as at the time of the performance of the obligation by the other party. 15 (3) Where there was an agreed price, the value of the benefit is that proportion of the price which the value of the actual performance bears to the value of the promised performance. (4) Where there was no agreed price, the value of the benefit is the sum of money which a willing and capable provider and a willing and capable recipient would reasonably be 20 taken to have agreed for the actual performance. (5) But subsections (2) to (4) are subject to subsection (6). (6) The recipient’s liability to pay the value of a benefit is reduced to the extent that, as a result of the non-performance of an obligation owed by the other party to the recipient (being an obligation under the contract) the recipient is compelled, without compensation, 25 either to dispose of the benefit or to sustain a disadvantage in order to preserve it. 20 Compensation for reduction in value of a returned benefit (1) This section applies where the recipient is required, by section 18(6), to transfer a benefit. (2) The recipient must pay compensation for any reduction in the value of the benefit as a 30 result of a change in the condition of the benefit between the time of receipt...