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Author: s1932549

Whose pint is it anyway?

by Susanna Macdonald-Mulvihill, Early Career Fellow, Edinburgh Law School

A woman walks into a bar. Her name is Janet. Janet tells the bartender, Luca, that she would like a dram for herself and to buy a drink for all the other customers currently in the pub. Luca duly pours the whisky and rings up the total for all the drinks. Janet pays, drinks her whisky, and leaves. Luca pours the drinks Janet has bought for the other customers and distributes them to the relevant people, who happily accept and enjoy their beverages.

Kevin, one of the regular customers, was in the toilets when Janet came in and does not know about the transaction. Luca had included a pint of beer for him along with the drinks for the other customers that Janet paid for. Luca had poured it and left it on the bar where Kevin was previously sitting. However, when Kevin, unaware of Janet’s generousity, left the toilet, he walked straight out of the bar to go home. He did not see the beer and the drink remains untouched. Whose pint is it? And why does it matter? 

What this scenario demonstrates is an instance of an indirect donation. An indirect donation is where a donor engages in a transaction with a third party who in turn passes the benefit on to the donee. This can occur in a number of ways. For instance, a donor can be a parent who pays the rent of a university student child. The parent and landlord are the parties who transact but the student child receives the benefit of the accommodation. Alternatively, the donor may be a person who waives a right they have against a third-party in favour of the donee. An example of this could be the renunciation of an inheritance right resulting in that right vesting in the donee. Key to an indirect donation is that the donee is not actively involved in the transaction that leads to the benefit passing to them.

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James Wood of Wallhouse and the Law of Contractual Misrepresentation: Woods v Tulloch (1893)

by Professor Hector MacQueen, Emeritus Professor of Private Law, Edinburgh Law School*

Back in 2012 I was honoured to be asked to deliver that year’s James Wood Memorial Lecture in Glasgow University Law School. My title was “Private Law, National Identity and the Case of Scotland”. But I thought that before I started on the substance, I should say a few words about James Wood. No previous lecturer appeared to have done so and before the invitation I did not know anything about him. The life and remarkable business career of James Wood of Wallhouse in Torphichen, West Lothian are however well set out in the Dictionary of Scottish Business Biography.[1]  Born in Paisley in 1840, from his early 20s he was a coal merchant and mine-owner around the greater Glasgow area. In 1871 Wood expanded his mining interests into, first, Armadale (West Lothian) and then other places in the county such as Bathgate. His business activities in the area extended in due course to gas, brickworks, steel works and the shale oil industry as well as coal-mining. The business, which was run in partnership with his brother William, came to have offices in London and New York, as well as Glasgow. William looked after sales and merchanting while James concentrated on colliery development and operations. Having been chairman of the Pumpherston Shale Oil Company from the mid-1880s, James became a more or less professional company director after 1900, working in a wide variety of Scottish companies. As his biographer remarks, “his experience and expertise in the business world made him a much sought-after figure to serve on company boards.”

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Property Scholarship Without Boundaries – Lorna Fox O’Mahony and Mark L. Roark, Squatting and the State: Resilient Property in an Age of Crisis (Cambridge University Press 2022)

by John Lovett, De Van D. Daggett, Jr. Distinguished Professor of Law, Loyola University

Many private law scholars, and I am no exception, take pride, or at least comfort, in their adherence to the traditional boundaries of private law scholarship. We interpret traditional legal texts—judicial decisions, civil codes, statutes, uniform laws, reports of distinguished law reform commissions. We often work within our own jurisdictions though we sometimes stage careful comparative excursions that contrast different countries’ solutions to a distinct private law problem. We generally discount politics, though we sometimes acknowledge that deep philosophical commitments can shape legal doctrine.

Could this approach be too limiting? Lorna Fox O’Mahony and Marc L. Roark’s stunning new book, Squatting and the State: Resilient Property in an Age of Crisis (Cambridge University Press 2022) suggests that it may be. “When property law scholarship is bounded,” they write, “either by narrowing its window to the state-jurisdictional level; by focusing on a limited range of legal sources (primarily litigation); or by starting from prior political or philosophical commitments (for example, to “progressive” state action or state forbearance/restraint from action); the perspectives it generates will be similarly bounded.” (377)

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Kinghorn v Wood and the origins of trusts in Scotland

by León Carmona Fontaine, PhD Student at Edinburgh Law School*

If there was a Scottish case from the 1620s in which a Scottish court had decided that there was a sham trust, it would be surprising and significant for both historical and comparative reasons. For a start, Scots lawyers usually consider that a distinct institution known as a trust appeared in Scotland in the late 17th century, and more decisively in the 18th century.[1] Second, sham trusts are usually seen as a recent English legal development. The term ‘sham’ gained a defined legal meaning in England between the late 19th century and the second half of the 20th century (Snook v London and West Riding Investments Ltd [1967] 2 QB 786, 802),[2] and the first case in which an English court found a declaration of trust to be a sham dates from the last decade of the 20th century (Midland Bank plc v Wyatt [1997] 1 BCLC 242). Finally, Scottish courts have occasionally applied the doctrine of sham transactions, but usually by reference to modern English authorities rather than Scottish ones.

Yet, Kinghorn v Wood (1626) Mor. 5072 seems to suggest that both trusts and sham trusts existed in Scotland as early as the early 17th century. Naturally, the trust in question did not go by the name of ‘trust’, and the ‘sham’ was not yet named ‘sham’.  The word ‘trust’ started to be used in Scotland only in the course of the 17th century,[3] and the word ‘sham’ had not yet originated in the English-speaking world.[4] In substance, however, the court found an arrangement that we would nowadays call a trust to be a sham as that term has come to be understood.

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Scottish Trust Law Reform and the Role for the Courts

by Daniel J. Carr, Senior Lecturer in Private Law, Edinburgh Law School

A.  INTRODUCTION

Change is coming to trusts law in Scotland. November 2022 saw the introduction of the Trusts and Succession (Bill) (“the Bill”) in the Scottish Parliament, and on 15th September 2023 the Delegated Powers and Reform Committee (“the Committee”) published its broadly supportive Stage 1 Report on the Trusts and Succession (Scotland) Bill (“the S1 Report”). The Parliament is scheduled to hold the Stage 1 Debate on the Bill on 28th September 2023. It is, therefore, a good time to build upon several of the Committee’s recommendations to illustrate the potentially significant change in the role of the courts heralded by the Bill’s current form.[1] The cumulative effect of the Bill’s provisions[2] is to increase the scope for the courts’ involvement, potentially significantly altering the culture and approach to Scottish trusts by changing the courts’ terms of engagement with trusts and trustees. What happens in the evolution of that engagement will determine much of the substantive doctrine and practical content of trust law, and therefore the very nature of the Scottish trust as a legal institution.

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