Contract Law in Scotland

Contract Law in Scotland

• A contract is an agreement giving rise to obligations enforceable by law. Essential elements include offer, acceptance, intention to create legal relations, and consideration.

• Formation of a contract requires a clear offer, unequivocally accepted by the offeree.

• Offer and acceptance must be communicated, and acceptance must mirror the offer (mirror image rule).

• A unilateral contract involves a promise in exchange for an act. The act itself constitutes acceptance.

• Bilateral contracts are formed via reciprocal promises.

• Consideration is something of value exchanged by parties. It can be a benefit to one party or a detriment to the other.

• Intention to create legal relations is crucial. Social or domestic agreements often lack this intention.

• Capacity to contract involves the legal ability of parties to enter into a contract (e.g., minors, mentally incapacitated persons may lack capacity).

• Misrepresentation, a false statement of fact, can vitiate a contract if it induces the other party to enter into the agreement.

• Vitiating factors like duress, undue influence, and mistake can also render a contract void or voidable.

• The common law principles of contract are applicable, but there are also statutory rules, like the Consumer Rights Act 2015 (partially applicable).

• Remedies for breach of contract may include damages, specific performance, and injunctions.

• Breach occurs when a party fails to perform a contractual duty without lawful excuse.

Delict in Scots Law

• Delict, in Scots law, corresponds to tort in English law. It's a civil wrong that gives rise to a right of action for compensation.

• Essential elements of delict include a wrongful act (culpa), harm caused to the claimant, and a causal link between the act and the harm.

• Different types of delict include negligence, assault, defamation, malicious falsehood, nuisance, and breach of statutory duty.

• Negligence involves a failure to take reasonable care, leading to foreseeable harm suffered by another. Key elements include duty of care, breach of duty, causation, and loss.

• Establishing a duty of care in negligence cases depends on factors like foreseeability, proximity, and policy considerations.

• The "but for" test is a fundamental element for establishing causation in negligence.

• Defences to delictual actions can include contributory negligence (where the claimant's own actions contribute to the harm) or consent.

• Strict liability may apply, where a defendant is responsible irrespective of fault—for example, in cases of keeping dangerous animals.

• Damages in delict are meant to compensate for losses suffered, including past and future financial losses, and non-pecuniary losses, such as pain and suffering.

• The general principles of delict are codified in various statutes, but common law has a significant role.

Private Law of Scotland: General Overview

• Private law in Scotland deals with the relationships between individuals and organisations. It covers various aspects, including contracts, delict, property, and family law.

• Scots private law encompasses a system of common law and legislation, with the common law being a foundational source of law alongside statutory provisions.

• The conceptual and judicial approaches to delict, contract, and other areas have substantial historical context.