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Edinburgh Private Law Blog Posts

New insights through defamiliarization

New insights through defamiliarization

Published 20th August 2025

By Anna Bleichenbacher, PhD student, University of Basel[1]

I. Prologue

Compare how it felt to speak your first words in a foreign language with how it feels now after years of practice. Once we can do things as a matter of habit, they start to become automatic for us. Deliberately framing something in a different perspective – what the Russian literary theorist Shklovsky said about the role of art in his concept of ‘defamiliarization’ (‘ostranenie’)[2] – challenges that automatic response. Defamiliarization is also possible in legal research. It enables us to take a new look at our own jurisdiction and how we work within it.[3] Studying and researching only in our home jurisdiction makes everything we do there feel natural to us – even inevitable. All that changes once we see it from the outside.

Breaking through this habituation and seeing familiar things with new eyes can be facilitated by a research stay abroad. In 2024 the author of this blog entry undertook a six-month research stay at the University of Edinburgh. This entry deals with the differences in the research and teaching between Edinburgh and Basel, as well as the new perspectives the author gained from her time abroad. She experienced an ‘ostranenie’ that challenged her automatic assumptions of how the law had to be.

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Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Published 21st July 2025

by Lorna Richardson, Senior Lecturer in Commercial Law, University of Edinburgh

Introduction

Error is often described as one of the most complex parts of the law of contract. The reason for this is the clash between two opposing interests. On the one hand, a will-based theory of contract focuses on the parties being bound by having, of their own will, chosen to enter into the contract. As such, subjective will is significant. If, due to an error, a party entered into a contract believing something about the contract to be true which was not, she did not intend to be bound to the contract she ultimately entered into. On a will-based approach then, the party in error should not be bound by the contract. On the other hand, however, is the need to uphold contracts that have objectively been entered into. This is important for reasons of certainty. Parties need to be able to arrange their affairs on the basis of what the contract seems to require. It also protects the interests of the party who was not in error in entering into the contract. In framing and shaping the rules on error a legal system must thus seek to balance both positions and to adequately protect the interests of both parties.

In most legal systems it is not any error that can be used as a basis to challenge the validity of a contract. The error must generally relate to something important in relation to the contract. [1] For instance, the DCFR provides for avoidance where, but for the mistake, the mistaken party would not have concluded the contract, or would have done so only on fundamentally different terms (Art II-7:201). Many legal systems provide that an error by one party is not of itself enough to challenge the contract and they require something more, such as the mistake being shared or caused by the other party to the contract.[2] In order to protect the interests of both parties some systems, such as Germany and Greece, allow a party in error to avoid the contract but require her to pay damages to the other for losses caused due to the latter’s reliance on the contract.[3] There is therefore a spectrum between requiring full subjective consent to a contract for it to be upheld, on the one hand, and upholding all contracts objectively entered into, on the other.

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Homer, Paulus, and the Evolution of Economic Exchange – Part II

Homer, Paulus, and the Evolution of Economic Exchange – Part II

Published 26th June 2025

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

Introduction

As we saw in the first part of this blog entry, Paulus explains all three of the exchange transactions in the Homeric texts as instances of permutatio.  If we focus only on the material things passing in each direction, that characterisation seems accurate enough.  But that view would overlook the non-material differences among them, which in Homeric times would have separated the transactions into distinct kinds of exchange.  Each had a different motivation which would have placed it in a distinct domain of social activity.  The distinctions among them become still more blurred if we translate permutatio simply as “barter”, which has connotations of a commercially-motivated exchange, one that differs from purchase only in the absence of money.

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Homer, Paulus, and the Evolution of Economic Exchange – Part I

Homer, Paulus, and the Evolution of Economic Exchange – Part I

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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