Retention and rescission in Scottish civil litigation
Produced in partnership with Jim Cormack of Pinsent Masons
Retention and rescission in Scottish civil litigation

The following Dispute Resolution practice note Produced in partnership with Jim Cormack of Pinsent Masons provides comprehensive and up to date legal information covering:

  • Retention and rescission in Scottish civil litigation
  • Retention—meaning
  • Retention—mutuality principle and operation of retention
  • Retention—controls and limitations
  • Rescission—meaning and effect
  • Rescission—the ultimatum procedure
  • Rescission—practicalities
  • Remedies for breach of contract—anticipated developments

This Practice Note considers retention and rescission in Scotland. For guidance on:

  1. 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

  2. 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

  3. other key areas of Scottish law and procedure, see our Scotland toolkit, and

  4. 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.

Retention—meaning

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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