Collateral commentaries: construction law and the Contract (Third Party Rights) (Scotland) Bill.

Contracts create binding legal relationships between the parties to that contract. In Scotland and England, those who are not parties to a contract - 'third parties' - only gain rights in restricted circumstances. The existing historic common law rules of third party rights in Scotland, known as jus quaesitum tertio, lie adrift of commercial practice through lack of use and uncertainty as to their application in reality. Lack of clarity means that there is what the present writer has termed a 'death spiral': lack of use has meant that there is no opportunity for the case law to be clarified and certainty brought to the law; lack of certainty in the law means that the rights are not used. Indeed, they are often expressly excluded, to avoid the risk of their inadvertent creation - and unexpected claims from unexpected quarters