List members with an interest in contract may be interested to note that the
Scottish Law Commission has published a new Discussion Paper on Formation of
Contract (DP No. 154), which may be accessed online at
http://www.scotlawcom.gov.uk/index.php/download_file/view/984/129/ Comments
are welcomed by 29th June.

The Paper includes discussion of a number of both topical and perennially
favourite formation issues, including battle of the forms, the postal rule,
execution in counterpart, and electronic documents (including discussion of
the idea of an official electronic documents repository). The Outline of the
basis for a Formation of Contract Bill appears as appendix A to the Paper,
which incorporates a number of proposals which would amend the existing law,
including proposals that:

- A revocation of an offer is ineffective if [in addition to its being
irrevocable if it stated as being to that effect, or if it stipulates a time
limit for acceptance] it was otherwise reasonable for the offeree to rely on
the offer as being irrevocable and the offeree has acted in reliance on the
offer.

- A reply which gives a definite assent to an offer is an acceptance even if
it states or implies additional or different contract terms, provided that
these do not materially alter the terms of the offer. The additional or
different terms then become part of the contract.

- A reply which states or implies additional or different contract terms is
always a rejection of the offer if:
(a)the offer expressly limits acceptance to the terms of the offer;
(b)the offeror objects to the additional or different terms without undue
delay; or
(c)the offeree makes the acceptance conditional upon the offeror's assent to
the additional or different terms, and the assent does not reach the offeree
within a reasonable time.

- Where a letter or other communication containing a late acceptance shows
that it has been sent in such circumstances that if its transmission had
been normal it would have reached the offeror in due time, the late
acceptance is effective as an acceptance unless, without undue delay, the
offeror informs the offeree that the offer has lapsed.

- (1) Where the parties have reached agreement except that the offer and
acceptance refer to conflicting standard terms, a contract is nonetheless
concluded. The standard terms are part of the contract to the extent that
they are common in substance.
(2)No contract is concluded if one party:
(a) has indicated in advance, explicitly, and not by way of standard terms,
an intention not to be bound by a contract on the basis of paragraph (1); or
(b)without undue delay, informs the other party of such an intention.

The influence of sources such as the DCFR, CESL, and PICC is noted at
appropriate points in the body of the Paper and in the Outline Bill.

Best wishes,

Martin

Martin Hogg,
Edinburgh Law School




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