The following Dispute Resolution practice note Produced in partnership with Jim Cormack of Pinsent Masons provides comprehensive and up to date legal information covering:
This Practice Note considers retention and rescission in Scotland. For guidance on:
some other forms of relief in Scottish civil litigation, see Practice Notes: Interdict and interim interdict in Scottish civil litigation and Specific implement and interim specific implement in Scottish civil litigation
other aspects of Scottish civil litigation, see: Preliminary and ongoing considerations in Scottish civil litigation—overview and Starting and progressing a civil claim in Scottish civil litigation—overview which, in turn, link through to detailed guidance on specific aspects of dispute resolution in Scotland
other key areas of Scottish law and procedure, see our Scotland toolkit, and
the closest equivalent in England and Wales, see: Contractual breach damages and remedies—overview which, as well as giving an overview, links through to more detailed guidance on various aspects of remedies for breach of contract in England and Wales, including Practice Note: Rescission of a contract
Note: the remedies of retention and rescission are categorised as 'self help' remedies as they are remedies that can be exercised without first raising a court action. Both are founded in common law.
The word ‘retention’ in Scots law is one which should be ‘used with care’ (Inveresk v Tullis Russell Papermakers and John Kennedy Forster v Ferguson & Forster, Macfie & Alexander). This is because it can be used to describe several different remedies, each with different rules.
In this Practice Note,
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Express and implied contractual terms distinguishedContractual terms may be either express or implied:•express terms—are terms which are actually recorded in a written contract or openly expressed in an oral contract at the time the contract is made (or there may be a combination of written and oral
Community order requirementsCommunity order requirements are set out in the Criminal Justice Act 2003 (CJA 2003), as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) and the Offender Rehabilitation Act 2014 (ORA 2014). Criminal Justice Act 2003, s 152(2)
For guidance on the basic features of the doctrine of estoppel and the different classifications it has been subject to, see Practice Note: Estoppel—what, when and how to plead and related content.Promissory estoppel—what is it?Where A has, by words or conduct, made to B a clear and unequivocal
Deceit—what is it?A deceit occurs when a misrepresentation is made with the express intention of defrauding a party, subsequently causing loss to that party.The elements of a claim in deceit are:•a clear false representation of fact or law•fraud by the maker, in the sense that they knew that the
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