The Contract (Third Party Rights) (Scotland) Act 2017 (The 'Act')

The Contract (Third Party Rights) (Scotland) Bill was passed by the Scottish Parliament on 21 September 2017 and received Royal Assent on 30 October 2017. As yet, there is no confirmed date for the Act to come into force (although it's likely to be early 2018).

Significant changes introduced by the Act

The Act introduces a number of changes to the law including, among others, the following:

The abolishment of "jus quaesitum tertio". This is the common law position which enables rights (but not obligations) to be conferred upon a party, even if that party is not an original party to the contract. It is a historical legal principle which is largely considered to be uncommercial and inflexible as a result of (1) the requirement to show the contracting parties' intention to confer a right on the third party and (2) the irrevocability of the right which is intended to be conferred. The Act, therefore, represents an attempt by the Scottish Parliament to modernise this outdated position. A third party can now enforce a right under a contract, even though it is not an original contracting party. The third party does not need to be in existence at the time the contract was entered into. The original contracting parties may cancel or modify the terms of any rights under the contract, provided that the rights haven't yet been conferred on the third party. Where the Third Party Rights have been conferred on a third party, the underlying undertakings relative to such rights can only be modified or cancelled by the original contracting parties in limited circumstances (for instance, with the assent of the third party). The third party will have the same remedies for any breach of rights as would have been available to an original contracting party. What contracts will the Act apply to?

The Act will apply to all contracts entered into after the Act comes into force. If parties do not wish the provisions of the Act to take effect, this will need to be expressly stated, as we regularly see in English governed contracts which expressly exclude the operation of the equivalent legislation in England & Wales (which is the Contracts (Rights of Third Parties) Act 1999). For the avoidance of doubt, the Act will not apply to contracts entered into prior to the date on which the Act comes into force.

Will the Act have an impact on the use of Collateral Warranties?

If embraced by the industry, the Act will provide an alternative to Collateral Warranties (agreements...