Meeting of the Parliament 18 December 2025
It gives me pleasure to speak in the stage 1 debate on the Contract (Formation and Remedies) (Scotland) Bill. I inform members—whoever is left in the chamber—that I do not intend to take my full six minutes, but please do not in any way take that as a comment about the importance of the bill.
In my short career as a member of the Scottish Parliament, I have not had the pleasure of working on a bill that has been supported by pretty much everyone who gave evidence. Only one respondent, Dr Jonathan Brown from the University of Strathclyde, was against the proposals. Although I understand his passion for the continued support of Scottish common law, clarification in the area of contract law has been needed for some time and, as has been mentioned, the bill is universally supported by stakeholders.
I take the opportunity to thank the Scottish Law Commission and everyone who participated in the evidence sessions. Additional thanks go to the clerks and staff on the committee for all their hard work.
As has been stated, the bill makes provision regarding the formation of contracts and the remedies for breach of contract. Many stakeholders have found the legal framework around contract law to be difficult to navigate. The Scottish Law Commission’s work leading up to the bill’s introduction concluded that some parts of contract law were unclear, difficult to find and in need of modernisation, and the bill rectifies those issues.
Academics are in agreement. Professor Stephen Bogle and Professor Tom Johnson from the University of Glasgow support the proposed reforms. They said:
“Considering the landscape of contemporary litigation in Scotland, it is increasingly evident that reform is needed—particularly due to the limited body of case law and a discernible hesitancy within the Scottish judiciary to articulate general principles beyond the specific factual matrix of individual cases.”
Business is in agreement. The Federation of Small Businesses in Scotland supports the bill’s overall aims, with Colin Borland stating:
“It is quite sensible to have the bill to provide clear backstops where they have not been agreed in other terms by the parties. That makes perfect sense. As a general principle, anything that is done to codify, simplify or clarify the law and to make it easier for us as laypeople to understand has to be a good thing.”—[Official Report, Delegated Powers and Law Reform Committee, 25 November 2025; c 7.]
Lawyers are in agreement. The Law Society of Scotland supports the proposed reforms, stating:
“it is clear that a new statutory regime has the potential to offer benefits to certain parties by offering users a means to form agreements without a detailed understanding of case law or wider academic and institutional writings.”
Who are we to disagree? In layman’s terms, the bill makes it easier to understand the legalities around contracts, the implications of them and, if needed, the ability to contract out.
If I had to find anything that might be a small negative in regard to the bill, it would be that it has been a long time coming. The Scottish Law Commission has been looking at issues related to contract law since it was established in 1965, and the bill follows recommendations that the Law Commission made in 2018. It has been seven years in the making, which is perhaps a little disappointing.
I highlight the committee’s findings regarding retention. The Law Commission’s report stated that the law of retention did not need statutory reform, but that was not an accepted position when the Scottish Government consulted on the report back in 2024. Stakeholders have advised that the law of retention is now less clear than it was when the Law Commission published its report and that the law would benefit from clarification. I recognise the minister’s willingness to lodge amendments on retention at stage 2, and I welcome her collaborative approach on that issue and to the bill in general.
It is welcome that this bill has finally come to pass, and I sincerely hope that stages 2 and 3 are equally congenial.