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Tag: contract law

Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Published 21st July 2025

by Lorna Richardson, Senior Lecturer in Commercial Law, University of Edinburgh

Introduction

Error is often described as one of the most complex parts of the law of contract. The reason for this is the clash between two opposing interests. On the one hand, a will-based theory of contract focuses on the parties being bound by having, of their own will, chosen to enter into the contract. As such, subjective will is significant. If, due to an error, a party entered into a contract believing something about the contract to be true which was not, she did not intend to be bound to the contract she ultimately entered into. On a will-based approach then, the party in error should not be bound by the contract. On the other hand, however, is the need to uphold contracts that have objectively been entered into. This is important for reasons of certainty. Parties need to be able to arrange their affairs on the basis of what the contract seems to require. It also protects the interests of the party who was not in error in entering into the contract. In framing and shaping the rules on error a legal system must thus seek to balance both positions and to adequately protect the interests of both parties.

In most legal systems it is not any error that can be used as a basis to challenge the validity of a contract. The error must generally relate to something important in relation to the contract. [1] For instance, the DCFR provides for avoidance where, but for the mistake, the mistaken party would not have concluded the contract, or would have done so only on fundamentally different terms (Art II-7:201). Many legal systems provide that an error by one party is not of itself enough to challenge the contract and they require something more, such as the mistake being shared or caused by the other party to the contract.[2] In order to protect the interests of both parties some systems, such as Germany and Greece, allow a party in error to avoid the contract but require her to pay damages to the other for losses caused due to the latter’s reliance on the contract.[3] There is therefore a spectrum between requiring full subjective consent to a contract for it to be upheld, on the one hand, and upholding all contracts objectively entered into, on the other.

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Incorporation of Terms and Conditions: Modern Law for a Digital Age?Magnifying glass over a terms and conditions document.

Incorporation of Terms and Conditions: Modern Law for a Digital Age?

Published 10th September 2024

by Laura Macgregor, Professor of Scots Law, University of Edinburgh

The English Court of Appeal case, Parker-Grennan v Camelot UK Lotteries Ltd,[1]  provides a useful and authoritative reminder of the rules on incorporation of terms and conditions into a contract. The approach taken by the court is similar to the approach taken in an English case decided in 2022, at a lower level in the English judicial hierarchy.[2] Both cases now clarify the law. Nevertheless, the Court of Appeal case illustrates rather aptly that law developed for an environment of hard copy contracts can be applied only with difficulty to the online environment.[3] And while the law may be clear, value judgments continue to be required over whether the company has done what is “reasonably sufficient” to bring terms to the attention of the consumer. This need is particularly acute in situations (unlike the facts of this case) where the terms could be described as “unusual or onerous”.

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Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law HistoryAn image of an old-fashioned barn with a broom and bucket.

Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law History

Published 26th June 2024

by Dr. Alice Krzanich, Lecturer in Law and Legal History, University of Aberdeen

The history of employment law in Scotland is an under-researched topic. While some aspects of law and labour in Scotland’s past have been examined, others have been barely touched at all. Moreover, while many elements of employment law in modern-day Scotland are similar or identical to those in England and Wales, Scots law has its own distinct history concerning labour and employment. This is due to Scotland’s unique legal institutions and juristic traditions. There is consequently a need to investigate the history of employment law in Scotland more fully and to tease out some of the themes of its development.

This blog entry illustrates some of that distinct legal heritage by examining the employment of domestic servants in early nineteenth-century Scotland. In particular, it shows how Scots contract law regulating domestic service shared certain analytical features with the law of leases in the period c. 1800–1850. This may seem surprising, as the employment of domestic servants may (outwardly at least) seem to have little directly in common with leases of property. Yet this analysis will reveal commonalities between the two, resulting from the influence of Roman law alongside customary practices. Moreover, the law of leases was not the only area of private law that the contract of domestic service shared connections with in the nineteenth century; it was also often conceived as part of the law of familial obligations. This raises further questions about the nature of historical Scottish master-servant law, which this analysis will highlight.

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The Willy’s Chocolate Experience debacle: A classic case for solatium in damages for breach of contract?Children celebrating during a festival on the street

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

Published 4th June 2024

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 EmploymentA person signing a contact in front of another person

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

Published 28th March 2024

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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