Contract Law - review of retention
Overview
The Scottish Government consulted on the Scottish Law Commission (SLC) contract law review report in July 2024. The aim of the consultation was to establish whether the landscape around this area of the law has changed since the report was published in March 2018 and if so whether the changes are material to its recommendations.
One of the issues tested in the consultation was the need for reforms around the principle of mutuality and, particularly, retention. Some of the responses indicated that in the light of case law subsequent to the report, the law in relation to retention of performance is now less clear than when the SLC published its report and that the law would benefit from clarification. This paper seeks further views on what any reform should look like.
This consultation will enable the Scottish Government to draw on the views and experience of stakeholders so that we can form a view on the best way forward for Scotland.
Read the consultation paper. (Add link to consultation paper, if there is one, by adding the ISBN number to this link, then delete this text) The consultation paper contains full background information for this consultation. You may find it useful to read or refer to while responding.
Consultation questions preview
The consultation questions are included here for your reference. Please click 'Begin consultation' at the bottom of this page to proceed.
- Would the statutory scheme set out in the consultation paper address the concerns about the law of retention?
- Do you think there are any components missing from the scheme?
- Do you think any of the components listed should not feature in the scheme?
- Do you have any general comments on the proposed scheme?
- In relation to provision 15(f) do you consider that the non-trivial adverse effect requirement is necessary?
- Do you have any concerns about a statutory statement of the law of retention given the general approach of the SLC not to recommend a general statutory statement of the law of remedies for breach of contract?
- Do you have any views on whether retention should be available in response to an anticipatory refusal to perform?
- Do you have any views on whether these provisions should be made in primary or secondary legislation? If you think these provisions should be made by way of secondary legislation, do you have a view on which piece of primary legislation may enable Ministers to make such changes?
Useful information about responding to this consultation
As you complete your response, each page will provide the option to 'Save and come back later' at the bottom. This means you can save your progress and return to the consultation at any time before it closes. If you don't use this feature and leave the consultation midway through, your response will be lost.
Once you have submitted your response, you can enter your email address to get a pdf copy of your answers sent to you.
On the 'About You' page at the end of this consultation, organisations will have the opportunity to tell us more about their work and/or how their response was informed.
After the consultation has closed there will be a few months delay before any responses are published. This is because we must check any responses to be published abide by our Terms of Use.
An analysis report will usually be published some months after the consultation has closed. This report will summarise the findings based on all responses submitted. It will be published on the Scottish Government website and you may be notified about it if you choose to share your email address with us. You can also join our consulation mailing list where we regularly list newly published analysis reports (as well as new consultations).
Why your views matter
Consultation responses will be collated and used to inform the development of any future proposals. A formal Scottish Government response to the consultation will be published in due course, setting out the conclusions drawn and next steps.
Give us your views
Events
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Scottish Government Consultation – Law of Retention - Online seminar
From 29 Apr 2025 at 12:30 to 29 Apr 2025 at 13:30Live online 1 hour’s verifiable CPD
The Scottish Government recently consulted on the Scottish Law Commission’s Report on Review of Contract Law. In light of responses it has published a new consultation on the law of retention of performance. It proposes to restate and reform the current law in order to bring clarity and certainty to the law.
This seminar will provide an understanding of the consultation and how the proposed reforms could influence practice if brought forward for legislation. This is also an opportunity for you to comment on the proposed reforms that will influence the Scottish Government’s response.
For more information or to book your place, please email ContractLaw2024@gov.scot. -
Scottish Government Consultation – Law of Retention - Online seminar
From 1 May 2025 at 17:00 to 1 May 2025 at 18:00Live online 1 hour’s verifiable CPD
The Scottish Government recently consulted on the Scottish Law Commission’s Report on Review of Contract Law. In light of responses it has published a new consultation on the law of retention of performance. It proposes to restate and reform the current law in order to bring clarity and certainty to the law.
This seminar will provide an understanding of the consultation and how the proposed reforms could influence practice if brought forward for legislation. This is also an opportunity for you to comment on the proposed reforms that will influence the Scottish Government’s response.
For more information or to book your place, please email ContractLaw2024@gov.scot.
Interests
- Law and Order
- Main hub
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