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One of the most striking differences between the Civilian jurisdictions and the English common law has been the reluctance of the latter to adopt a general principle of good faith in contract. Scots law, however, often seeks to exercise the functions of good faith but does not recognise it as a general principle. In recent years, English law has begun to identify good faith as an implied term in "relational contracts", a concept with sociological and economic origins. This article applies that development to Scotland by exploring the relationship between good faith and the relational contract from a Scots-Roman perspective. It will be shown that the historical sources of Scots contract law, from the Roman reception to the Institutional Writers, are fully compatible with relational contracts. It goes on to consider how a Scots law approach to good faith in relational contracts might orientate itself to the English authorities. [ABSTRACT FROM AUTHOR]

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism. [ABSTRACT FROM AUTHOR]

In March 2012, the Australian Commonwealth Attorney-General's Department published a Discussion Paper which explored the prospect of codifying or otherwise reforming the Australian law of contract. There is little reason to think that the codification of the Australian law of contract is likely to be embarked upon in the foreseeable future. At the same time, recent years have seen a resurgence of interest in codification in Britain. This paper examines the experience of contract codification efforts in Australia with a view to identifying a number of cautionary lessons. It focuses on two challenges inherent in contract codification which have been given too little attention by the proponents of reform in Australia. [ABSTRACT FROM AUTHOR]

For many years, similarities have been noticed between the motivations for, and the methods of, controlling the exercise of discretionary powers on the one hand, in public law and, on the other hand, in contract law. There has, however, been much disagreement about how far the two processes should aligned, and whether the grounds of review in public law should be extended into the contractual domain. In Braganza v BP Shipping Ltd [2015] UKSC 17, the UK Supreme Court sought a high degree of alignment through the adoption, in a contractual dispute, of public law standards of reasonableness. This article offers a critique of the Court's arguments in the case and its consequences for contract law. [ABSTRACT FROM AUTHOR]

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, 'Farewell to Unjustified Enrichment' (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider. [ABSTRACT FROM AUTHOR]

In this article, Professor Hector MacQueen offers a Scots law response to the recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, 'Farewell to Unjustified Enrichment' (2016) 20 EdinLR 123). The author argues that unjustified enrichment provides, and continues to provide, a useful 'generalising' concept, the creative effects of which are far from spent (at least in Scotland). [ABSTRACT FROM AUTHOR]

The operation of compensation, whereby a liquid debt reduces or extinguishes a liquid debt, is well understood, as is retention of a sum due under a contract on the principle of mutuality. Less understood is the doctrine of retention of debts, the so-called 'other type of retention' or 'equitable' retention discussed in obiter remarks by Lord Rodger in the UK Supreme Court decision in Inveresk plc v Tullis Russell Papermakers Ltd [2010] UKSC 19. This form of 'equitable' retention is the subject of a detailed study by Lorna Richardson in this article. [ABSTRACT FROM AUTHOR]

This article examines the historical development of the rules applied by the Scottish courts to the transmission of terms in contracts of lease in cases where the original landlord sells the land to a new owner (a so-called 'singular successor'). The relevant rules determine which terms of the contract of lease are regarded as 'personal conditions', binding only the original parties, and which are 'real conditions' capable of binding singular successors as landlord. As the author demonstrates, the so-called 'inter naturalia' approach which has often been applied by the courts to test transmissibility is defective; a revised approach is needed. [ABSTRACT FROM AUTHOR]

The article discusses the limitation of liability for damages in European Contract law. Topics discussed include the damages rules within the system of the common European sales law (CSEL), the rules of European Community private law under the consumer contract law and the emergence of foreseeability in France and England. Other topics include the provision of the CESL dealing with mitigation and apportionment of damages or reduction of the creditor's claim.

The article discusses the "maxim ex turpi causa oritur non actio" (loosely, deliberate wrongdoing cannot found a cause of action), a rule of public policy established by the courts. Topics discussed include the application and the effect of the maxim, the Court of Appeal of England and Wales case Collier v. Collier and Great Britain House of Lords case Gray v. Thames Trains Ltd. It also discusses the Outer House of Scottish Court of Session decision in case McLaughlin v. Morrison.