Generally, when we contract with another party the law provides rights and remedies for both parties, but not for anyone else. This is sometimes known as the principle of privity of contract. Although other people may be affected by the contract, they are not treated as being a party to it. But there is another principle, that of freedom of contract, which is also relevant: it would allow the contracting parties, if they so wish, to provide rights under the contract for third parties. The way in which these two principles interact is at the heart of this Discussion Paper. Although, like most other European jurisdictions, Scots law has, for centuries, recognised third party rights in certain situations, it needs modernisation: much of the case law is very old, and it is neither clear nor comprehensive. Many common law jurisdictions, such as England & Wales and New Zealand have recently introduced statutory third party rights for the first time, while longer-established rules elsewhere have also been refreshed. Prompted by comments from solicitors and others that the Scots law is too inflexible and uncertain, the Scottish Law Commission has carried out a thorough review. This paper present their proposals for reform and invites discussion

The report Review Of Contract Law: Report On Formation Of Contract: Execution In Counterpart (SG 40) examines the specific difficulties of making a formal document, such as a contract, binding without all signatories having to meet to do so, or all having to sign the same physical copy; a process referred to as 'execution in counterpart'. The main recommendations of the report include: a document may be executed under Scottish law by parties subscribing to a counterpart of the document remotely from each other, and delivering their subscribed counterpart to the other parties; delivery may be to a person nominated for the purpose rather than to the other parties; delivery of a traditional document may be effected by electronic means; a document takes effect either when every party has subscribed and delivered its counterpart, or at such a later date as parties may agree; if desi

The project to consolidate bankruptcy legislation in Scotland followed a suggestion by the Accountant in Bankruptcy, an executive agency of the Scottish Government, which supervises and administers the process of bankruptcy. Although most of the law proposed for consolidation is already contained in a single Act, the Bankruptcy (Scotland) Act 1985 (the 1985 Act) that Act has been so heavily amended, on so many occasions, that it has lost coherence and rational structure. Many of its provisions (whether sections, subsections or paragraphs) are inordinately long; and numbering has become complex and unwieldy. The primary aim of consolidation is to make the legislation on a particular area of law more accessible for practitioners and for those affected by it, thereby saving time and money. The amendments outlined in Chapter 2 are intended to remove anomalies, to treat like cases in the same way or to omit provisions that are no longer of any practical utility. The amendments are given effect in the Commission's draft consolidation Bill (appendix 2). Considerations of legislative competence and of giving effect to certain provisions in other jurisdictions of the United Kingdom require the various provisions to be divided between a draft Bill of the Scottish Parliament and a draft order of the United Kingdom Parliament under section 104 of the Scotland Act 1998. A draft order is included at appendix 3.

The background to the project is a decision of the European Court of Human Rights in a case involving a person with autism, who had been admitted to Bournewood - a psychiatric hospital in England. The care he was receiving there had some restrictive features, and requests by his carers for him to return home were refused. The Court's decision was that there had been a breach of his right to liberty, as protected by Article 5 of the Convention. That result caused a change in the law of England and Wales. Admissions to long-stay hospitals for people with autism or other neurological conditions or disabilities who lacked decision-making capacity could no longer be regarded as voluntary and informal. A new system was introduced to authorise these admissions. The changes also affected some admissions to care homes.The Commission is therefore examining the position in Scots law concerning the right to liberty of adults with incapacity in residential facilities.The main questions raised by the Discussion Paper are - is Scots law as it currently stands adequate to meet the requirements of the European Convention in this area? And if not, how should it be changed?In particular, there is a need to decide if there should be a new procedure for authorising deprivation of liberty in residential care for adults with incapacity. If there should, what should that process be? And, very importantly, what sorts of care and what type of facilities should be regarded as involving deprivation of liberty for those who live there

Dated December 2013