Explanatory Notes

Bankruptcy and Diligence etc. (Scotland) Act 2007

2007 asp 3

15 January 2007

The Act


Part 15 - Action for Removing from Heritable Property
Section 219 – Caution for pecuniary claims

831.Section 219 abolishes the law on finding caution for “violent profits”. Violent profits are due for illegal (i.e. “violent”) possession of property, as distinct from (say) rent due from the period before a lease was determined. They are penal damages due on top of any actual loss suffered, so that (say) a landlord is entitled to double the amount of rent that would have been paid.

832.Caution is another word for a security provided by the defender in a court action. Caution is usually obtained by the lodging of money with the court, or by taking out an insurance policy (“bond of caution”) that guarantees any payment that may be found due.

833.Under the law before this section, where the pursuer in any removing or ejection claimed compensation for violent profits, the court could order the defender in the action to find caution for violent profits. Where it did so, and if the defender were unable to find caution then the defence would not be heard, and warrant of ejection would be granted without further procedure.

834.The effect of subsection (2) is to make it clear that it is no longer competent for the court to order the defender to find caution for violent profits. Compensation for violent profits is not abolished and may still be claimed.

835.Subsections (1), (3) and (4) provide that the court will be able to order the defender to find caution in the usual way for any non-penal damages that may be claimed by the person seeking to remove the defender, and for which the defender or any occupant deriving right or having permission from the defender may be responsible.

836.A consequential repeal, due to the abolition of caution for violent profits, is set out in schedule 6. That is the repeal of the Ejection Caution Act 1594.