Rescission for breach of contract in Scots law

This article is the first to consider rescission (termination) for breach of contract holistically. It charts the history of rescission in Scots law, revealing that while the remedy has been said to be an English import there was, in fact, a native right to terminate a contract without resorting to court from the early nineteenth century in Scotland. Whether there is a role for mutuality in rescission is also examined. Contrary to critics, it is argued that mutuality has a useful role (albeit this role is less obvious than the role played in the remedy of retention) to play in our understanding of rescission. The modern law of rescission for breach is analysed and an original framework developed to establish whether a breach of contract is material, thus allowing a party faced with breach to determine whether rescission is available in response. This is especially important given rescission is a self-help remedy. The article also considers the terminology used in relation to the remedy, seeking to unpick and dispel misunderstandings that have caused difficulties in analysis and stunted the development of the law in this area. Finally, how the remedy is exercised and the effects of a contract being rescinded are examined, with the basis for restitution following rescission called into question.