Key differences in the law of contract between Scots and English law
Produced in partnership with Morton Fraser

The following Commercial practice note produced in partnership with Morton Fraser provides comprehensive and up to date legal information covering:

  • Key differences in the law of contract between Scots and English law
  • Formation of contracts
  • The doctrine of unilateral promise (or obligation)
  • Essential contract terms
  • Execution of a contract
  • Rights under a contract
  • Waiver of rights
  • Transferring rights—assignation and assignment
  • Rights for third parties
  • Enforcing rights following a breach of contract
  • More...

Key differences in the law of contract between Scots and English law

Scots contract law has in many ways become similar to its English counterpart despite their different roots. Some English law concepts, such as undue influence and anticipatory breach, have been incorporated into Scots contract law and some leading authorities are the same in both systems. However, there are some key differences of which it is important to be aware. The aim of this Practice Note is to highlight some of the key differences between Scots and English contract law. In particular, the Practice Note looks at:

  1. the formation of contracts

  2. rights under contracts, and

  3. enforcing rights following a breach of contract

Formation of contracts

The doctrine of unilateral promise (or obligation)

The first distinction which should be considered is that under Scots law it is possible for a unilateral promise to be binding on the party making that promise without the requirement for a formal acceptance. A promise can become binding on the promisor on the basis of their actions alone and does not require any action on the part of the promisee.

An example of a case involving a promise is the case of Royal Bank of Scotland v Carlyle, where the Supreme Court held that the first instance court was correct to have held that a property developer's bank had made a legally binding promise

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