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Edinburgh Private Law Blog Posts

Homer, Paulus, and the Evolution of Economic Exchange

Homer, Paulus, and the Evolution of Economic Exchange

Published 29th May 2025

by David Fox, Professor of Common Law, University of Edinburgh

Introduction

The opening text of Book XVIII of Justinian’s Digest, on the contract of purchase, quotes an excerpt from Paulus’ Commentary on the Edict.[1]  In this text, Paulus develops a legal test for distinguishing two kinds of exchange: the contract of purchase (emptio) on the one hand and the contract of barter (permutatio) on the other.  Purchase, he says, consists in one party paying a money price (pretium) in exchange for the thing (merx) that is promised and delivered by the other party.  By contrast, a barter is a transaction where the parties promise and exchange two non-monetary things.

Paulus goes on to develop a sharp definition of money for the purposes of his rule.  The monetary price, he says, should consist in coins (nummi) struck in authorised form by the public mint.  For Paulus, the delivery of coined money on one side of the exchange marks the identifying characteristic of a contract of purchase.

Justinian authoritatively accepted Paulus’ view.[2]  His ruling put beyond dispute that purchase and barter were distinct contracts in the revived Roman law of the sixth century AD, and that each had to be enforced by its own distinct actions.  In so ruling, he settled an old disagreement between the Sabinian and Proculian schools of juristic thought.[3]

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Scots Law Influencing English Law on Deposits and Debt

Scots Law Influencing English Law on Deposits and Debt

Published 2nd April 2025

by Katy Barnett, Professor of Law, The University of Melbourne[1]

As Alexandra Braun has noted, academic consideration of Scots law has tended to focus either on whether the particular hybrid of Roman law and common law is ideal, or on the ways in which Scots law has been influenced by other jurisdictions. It is less common for scholars to consider whether Scots law has influenced other systems, including English law.[2]

A recent English Court of Appeal case provides an opportunity to shine a light on the ways in which Scots law has influenced (and continues to influence) English law. In King Crude Carriers SA v Ridgebury November LLC,[3] the English Court of Appeal changed tack from earlier English cases, which had allowed a defendant who entered into a contract of sale to avoid forfeiting the deposit by deliberately failing to fulfil the condition precedent necessary to trigger the accrual of the debt. Instead, the Court chose to follow Scots law, and adopted the approach taken by Lord Watson in Mackay v Dick & Stevenson.[4] An appeal from this decision is currently before the United Kingdom Supreme Court.

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Books – Part of Our Legal Culture

Books – Part of Our Legal Culture

Published 4th March 2025

by Professor Reinhard Zimmermann, Emeritus (Director) of the Max Planck Institute for Comparative and International Private Law, Hamburg

“Mr. Booker, however, would review such a book as Lady Carbury’s ‘Criminal Queens’ without bestowing much trouble on the reading. He could do it almost without cutting the book, so that its value for purposes of after sale might not be injured”: Anthony Trollope, ‘The Way We Live Now’, Chapter 1. 

 (i) Modern academic life is characterized by an apparently unstoppable trend towards specialization. At the same time, we are faced with a proliferation of legal literature. It becomes more and more difficult to follow developments in areas not directly relevant to one’s own field of research. (ii) Contrary to the natural sciences and economics, law is a field of research where the writing of books constitutes a long-established and essential means of producing knowledge. In a number of countries (Germany and Italy among them) a scholar has to write two books in order to qualify for an academic career. In other countries (England and Scotland, for example) an aspiring academic usually has to write a PhD thesis which, in a revised version, is often subsequently published as a book. (iii) With so much writing going on, nobody can read all new law books, even those in a limited field such as contract law, or constitutional law. 

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Primary rights and liability in delict

Primary rights and liability in delict

Published 25th February 2025

By John MacLeod, Senior Lecturer in Private Law, University of Edinburgh 

Since the turn of the 21st century, Common Lawyers have discussed the basis of tortious liability extensively.[1] In particular, defences have been mounted against instrumentalism (i.e. considering law in terms of social policy). Much of the analysis turns on the idea that tort is about responding to infringements of primary rights (or to breach of primary duties). Primary rights are rights (and primary duties are duties) which do not arise from infringement of another right. They are contrasted with secondary rights, which do arise from such infringements. Property rights or rights to contractual performance are primary; rights to compensation for culpable damage or breach of contract are secondary.

If torts are thus conceptualised, the reasons which justify a primary right explain the wrongfulness of the tortious action and so support liability. Justifications for primary rights can vary and need not depend on some general logic within tort law.

What, if anything, does this literature mean for Scotland?

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Servitudes in the Sheriff Appeal Court- Acquiescence, Permission and Tolerance

Servitudes in the Sheriff Appeal Court- Acquiescence, Permission and Tolerance

Published 22nd November 2024

by Alasdair Peterson, Lecturer in Private Law, University of Edinburgh

Introduction

In a recent case, AC & IC Fraser & Son Limited v Munro [2024] SAC (Civ) 41, the Sheriff Appeal Court was faced with two issues relating to the law of servitudes: firstly, whether a landowner’s inaction in response to its neighbour’s use of a diverted route had led, through acquiescence, to a variation in the route of a vehicular right of access; and, secondly, whether an additional pedestrian right of access had been established through positive prescription despite the landowner having permitted the neighbour’s predecessor to use the route over which a servitude was now claimed.

Although these issues are doctrinally distinct, a common theme emerges from the court’s deliberations: how best to characterise a landowner’s response (or lack of response) to a neighbour using their land in a manner apparently unsupported by any existing right of servitude.

In its opinion, delivered by Sheriff Principal Pyle, the court refers to several different descriptions which could be applied to a landowner’s response (or, again, lack of response) in this context – namely “acquiescence”, “permission”, and “tolerance”. As will be seen, although these descriptions overlap in their everyday meaning, their legal meanings are substantively different. Deciding which description best characterises a landowner’s behaviour will therefore be significant when determining whether land has been burdened with a praedial servitude or remains free.

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