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Category: Private Law

The Willy’s Chocolate Experience debacle: A classic case for solatium in damages for breach of contract?

by Thorsten Lauterbach, Teaching Excellence Fellow, Robert Gordon University, Aberdeen

It will have been difficult not to see the tale of woe behind the Willy’s Chocolate Experience, a story that dominated headlines[1] in Scotland and beyond,[2] as it went viral on social media: children and their parents had been looking forward to around an hour of exhilarating entertainment, at up to £35 per ticket, only to receive the exact opposite. It is a box of wondrous legal issues aplenty: advertising, employment law, intellectual property law, consumer law, contract law – and there may well be some more. This blog entry looks at this story from a consumer redress angle, particularly focusing on solatium for breach of contract in common law, and how the thinking on this concept was driven by one – or two – prominent Scots.

What happened?

Advertising via the Willy’s Chocolate Experience website had promised “a place where chocolate dreams become reality. Book your adventure now and embark on a journey filled with wondrous creations and enchanting surprises at every turn!”,[3] “an enchanted garden, with giant sweets, vibrant blooms, mysterious looking sculptures, and magical surprises that add an extra layer of wonder to your Chocolatey Experience!”,[4] Imagination Lab, Twilight Tunnel – an “event [which] guarantees an immersive and delightful entertainment experience suitable for aged 3+ years old”.[5] However, the reality turned out to be different.

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‘My Hands Are Tied’: Unilateral Variation of the Contract of Employment

by David Cabrelli, Professor of Labour Law, University of Edinburgh

Should the law lend legal validity to a clause in a contract that empowers one of the parties to unilaterally vary its terms? And should there be any difference in the applicable rule if the contracting party who has the power to vary is in a superior bargaining position, such as an employer in an employment contract? These are the two principal questions that this post will consider.

In the view of John Stuart Mill, everyone should have the right to consent (or not to consent) to change their mind in the future and to have that position respected by the law.[1] Up to a point, Mill’s position reflects the current law, since the point of departure is that contracts can only be varied by mutual consent, irrespective of whether the bargain concluded is a commercial contract[2] or employment contract.[3] However, there is an exception. For example, in the case of a unilateral variation clause – where the employee has exercised their autonomy to agree to a provision that permits the employer to change the terms of the contract of employment without the approval of the employee – contract law recognises that mutual consent is superfluous.[4] This is controversial for the reason that the employee is in an unequal bargaining position vis-à-vis the employer as well as subordinate to the employer and subject to the latter’s commands. Thus, there is the temptation to reform the law to invalidate unilateral variation clauses. But in this post, I make the claim that this temptation should be resisted, albeit not as a matter of principle, but for doctrinal reasons.

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The case for digital assets legislation in Scotland

by David Fox, Professor of Common Law, University of Edinburgh

The England and Wales Law Commission has recently published its final report on Digital Assets (Digital assets – Law Commission).[1]  The report comes after an exhaustive study of the way that existing principles of private law in England and Wales would apply to this emerging class of assets.  It is of great significance since digital assets are fast becoming mainstream vehicles for carrying out financial transactions as conventional forms of financial securities are adapted to work on blockchain technology.  The report acknowledges that private law is as relevant to digital assets as the specialist regimes of financial services regulation that were the main focus of attention in the early days of their development.

The Law Commission report is relevant to Scotland which has an important fintech industry of its own but where the application of fundamental principles of Scots private law to digital assets remains obscure.  Any new clarification of the legal rules in Scotland would need to allow for the subtle similarities and differences between English and Scots property law and for the divergent patterns of legal development in each jurisdiction.

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Whose pint is it anyway?

by Susanna Macdonald-Mulvihill, Early Career Fellow, Edinburgh Law School

A woman walks into a bar. Her name is Janet. Janet tells the bartender, Luca, that she would like a dram for herself and to buy a drink for all the other customers currently in the pub. Luca duly pours the whisky and rings up the total for all the drinks. Janet pays, drinks her whisky, and leaves. Luca pours the drinks Janet has bought for the other customers and distributes them to the relevant people, who happily accept and enjoy their beverages.

Kevin, one of the regular customers, was in the toilets when Janet came in and does not know about the transaction. Luca had included a pint of beer for him along with the drinks for the other customers that Janet paid for. Luca had poured it and left it on the bar where Kevin was previously sitting. However, when Kevin, unaware of Janet’s generousity, left the toilet, he walked straight out of the bar to go home. He did not see the beer and the drink remains untouched. Whose pint is it? And why does it matter? 

What this scenario demonstrates is an instance of an indirect donation. An indirect donation is where a donor engages in a transaction with a third party who in turn passes the benefit on to the donee. This can occur in a number of ways. For instance, a donor can be a parent who pays the rent of a university student child. The parent and landlord are the parties who transact but the student child receives the benefit of the accommodation. Alternatively, the donor may be a person who waives a right they have against a third-party in favour of the donee. An example of this could be the renunciation of an inheritance right resulting in that right vesting in the donee. Key to an indirect donation is that the donee is not actively involved in the transaction that leads to the benefit passing to them.

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James Wood of Wallhouse and the Law of Contractual Misrepresentation: Woods v Tulloch (1893)

by Professor Hector MacQueen, Emeritus Professor of Private Law, Edinburgh Law School*

Back in 2012 I was honoured to be asked to deliver that year’s James Wood Memorial Lecture in Glasgow University Law School. My title was “Private Law, National Identity and the Case of Scotland”. But I thought that before I started on the substance, I should say a few words about James Wood. No previous lecturer appeared to have done so and before the invitation I did not know anything about him. The life and remarkable business career of James Wood of Wallhouse in Torphichen, West Lothian are however well set out in the Dictionary of Scottish Business Biography.[1]  Born in Paisley in 1840, from his early 20s he was a coal merchant and mine-owner around the greater Glasgow area. In 1871 Wood expanded his mining interests into, first, Armadale (West Lothian) and then other places in the county such as Bathgate. His business activities in the area extended in due course to gas, brickworks, steel works and the shale oil industry as well as coal-mining. The business, which was run in partnership with his brother William, came to have offices in London and New York, as well as Glasgow. William looked after sales and merchanting while James concentrated on colliery development and operations. Having been chairman of the Pumpherston Shale Oil Company from the mid-1880s, James became a more or less professional company director after 1900, working in a wide variety of Scottish companies. As his biographer remarks, “his experience and expertise in the business world made him a much sought-after figure to serve on company boards.”

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