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Keep open covenants in Scots law

Building Law Monthly

Keep open covenants in Scots law

In Sapphire 16 SARL (formerly known as Orion IV European 16 SAR) v Marks & Spencer plc [2021] CSOH 103 Lord Braid held that the defender had failed to comply with the terms of an interim court order which required it to keep its store open for business but he found that the defender was not in contempt of court as a result of its failure to comply with the court order. Giving the defender the benefit of the doubt, Lord Braid concluded that it had not been established that the conduct of the defender in breaching the court order was wilful and had showed a disregard for the court. The case illustrates the difference in approach to keep open covenants in Scots and English law because an English court would not specifically enforce a keep open covenant and so the problems examined by Lord Braid in relation to the enforcement of court orders would not arise.

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