Review of Commercial Agreements in Scotland (Cabrelli)

Commercial Agreements in Scotland: Law and Practice

David Cabrelli

ISBN: 0 414 01658 0
PRICE: £125

This is not simply another commentary on the law of contract in Scotland, but rather it is an attempt to provide a detailed introduction to general commercial agreements from both an academic and, more refreshingly, a practical perspective.

It seeks to examine the “nuts and bolts” of commercial agreements by offering practical insights and views in relation to the drafting, revision and negotiation of general commercial agreements.

There are a number of texts and resources already available that provide practical guidance on the construction and negotiation of commercial contracts from an English law perspective. Equally there are number of Scots law texts that provide guidance on specialised contracts in fields such as employment law, intellectual property and construction. However, the writer is not aware of any existing book which focuses on general commercial contract drafting from a Scots law perspective. As such this book is a welcome addition for all Scottish practitioners advising on commercial law.

The main body of the book analyses the contractual provisions that typically appear in business-to-business commercial agreements. It should be noted that the text only deals with business-to-business contracts and does not attempt to look at business-to-consumer contracts.

The book consciously distinguishes between “exchange” provisions and contracts (characterised by the exchange of property from one contracting party to the other for a consideration), and “relational” provisions and contracts (rights and obligations of parties in an ongoing contractual relationship). The author states that this distinction and classification is increasingly made in academic circles. However, it is not one that is readily made in practice, where commercial agreements may involve a mixture of exchange and relational characteristics – e.g. a distribution agreement.

The book looks at each aspect of a general commercial agreement in turn – from standard definitions and interpretation through to issues such as limitation of liability, warranties, indemnities and liquidated damages. Whilst the author now works in an academic environment, the book successfully manages to balance the academic analysis with a practical insight and commercial focus.

The issues discussed are aided and clarified by frequent reference to appropriate case law. As the author points out, an insight into the attitude adopted by the courts towards the interpretation of contracts is essential to commercial practitioners.

As is the norm in books of this nature, a suite of style agreements is also provided – including standard terms and conditions of sale, agency and distribution agreements. The styles, and for that matter the book generally, concentrate on contracts relating to the supply of goods as opposed to services.

The styles will be useful to busy practitioners who may not have access to other style banks or resources. To that end the accompanying CD with electronic copies of the styles may be seen by many as an additional selling point. However, it should be noted that the author has not provided any detailed commentary on the styles, or linked them to the main body of the text – which is a feature that perhaps should be included in future publications.

Overall, the book has certainly achieved its aim of providing a detailed introduction to the law and practice of business-to-business commercial agreements from a Scots law perspective and it does provide a useful manual for both students and commercial practitioners alike.

    David Goodbrand, Partner (IP & Technology), Burness LLP

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