Book reviews
by Laura MacgregorReview of The Law of Contract in Scotland
The Journal, February 2003, page 44
THE LAW OF CONTRACT IN SCOTLAND, 2ND EDITION
By WW McBryde. W Green together with First Supplement, 2002. Price £165. ISBN 0 414 01486 3
The first edition of this book, published in 1986, will be well-known to all academics and practitioners with even a passing interest in contract law. This being the case, one might have thought that a reviewer could keep his or her comments on a new edition to a minimum. However, in certain respects, the second edition is a quite different book from the first. Most importantly, the first edition has been substantially revised. Some chapters are radically different.
Despite the fact that this is a second edition, it remains relevant to consider the aim and purpose of a Scottish Universities Law Institute (SULI) volume such as this one. It is primarily intended to be a resource for practitioners. The SULI series was set up in 1960 by T B Smith to fill the perceived gap in the market for high quality and authoritative texts. At that time, it was difficult to secure publication of such texts which were thought unlikely to be commercially successful.
This book clearly fulfils that aim. That is not to say, however, that most of it is taken up by detailed drafting styles or advice. Rather, the book integrates discussion of the principles governing a particular area with more practical discussion. A good example is the section on penalty or liquidated damages clauses. The principles are identified and explored prior to an examination of the factors which should be borne in mind when drafting an appropriate clause. Other examples include advice on the drafting of pleadings where the pursuer seeks damages for breach of contract. The author uses the useful device of analysis of specific factual situations, whether hypothetical or drawn from cases. This is a significant aid to understanding difficult topics. Of particular utility is the chapter on assignation – a subject which is notoriously complex, woefully under-researched and given only minimal treatment by other Scottish texts.
It would, however, be unfair to suggest that the practitioner is neither interested in, nor requires, a broader discussion of the theory of the law of contract. In areas such as frustration or interpretation of contract, case analysis alone is unlikely to be helpful without an identification of the rationale behind the court’s approach. One finds in this book a succinct theoretical analysis sufficient to alert the practitioner to the issues without overburdening him or her with too much philosophical discussion. The author summarises the competing views on controversial points and then takes time to explain his own view and suggestions for reform (see for example the discussion of mutuality of contract and its effects at pages 495-6, or the possible development of the principle of a remediable breach at pages 522-4). The discussion is relevant, and rarely abstract. Proof of this can be seen from the fact that the discussion of good faith in Scots contract law is relatively short. Until further developments have taken place in the case law, it is perhaps better to reserve detailed analysis of this area to the more academic journals.
The publication of this book is a significant achievement. One is aware of the wealth of academic and practical experience which has been put into the book. It is also clear that no stone has been left unturned. Its status as the classic text on Scots contract law is assured, and it is undoubtedly the essential purchase for practitioners working in this area.
Laura Macgregor
University of Edinburgh
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