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Author: s1932549

Moveable Transactions (Scotland) Bill

by Andrew Steven, Professor of Property Law, University of Edinburgh.

The Moveable Transactions (Scotland) Bill was introduced to the Scottish Parliament on 25 May. The Scottish Government is therefore implementing the recommendations made by the Scottish Law Commission in its three-volume Report on Moveable Transactions (Scot Law Com No 249, 2017). The Public Finance Minister, Tom Arthur MSP has described the Bill as “vital to helping businesses and the wider economy”.

The report was the culmination of a large project conducted by the Commission. Its Discussion Paper of 2011 (Scot Law Com DP No 151, 2011), on which Professor George Gretton, Lord President Reid Professor of Law Emeritus in Edinburgh Law School was lead Commissioner, was the subject of a symposium by the Edinburgh Centre for Private Law in October 2011. The papers presented were published in the May 2012 issue of the Edinburgh Law Review. Following this symposium and consultation, I was responsible as lead Commissioner for taking the project through to the 2017 Report.  It has a draft Bill annexed to it, on which the Scottish Government Bill is based.  The Bill is arguably the largest reform to Scottish moveable property law since the Sale of Goods Act 1893, although its successor, the Sale of Goods Act 1979, falls outwith scope because of its UK-wide application.

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Unjustified Enrichment in Scots Law: Time for Consolidation, not Reappraisal?*

By Niall Whitty, Honorary Professor of Edinburgh Law School

1. 1961-1990. I must confess I have been fascinated by the Scots law of unjustified enrichment for over 60 years. My first contact with it occurred in autumn 1961 – in my first year at Edinburgh University Law Faculty.[1]

At that time, the English law of restitution, with its imputed contract theory of quasi-contract[2] and its Coronation cases,[3] (rejecting restitution after frustration of contract) was held up to students in the Civil Law class as evidence that the English law of obligations, while rich in detail, was poor in principle. By contrast, Scots enrichment law, with its obediential obligation theory and civilian Cantiere San Rocco case,[4] was said to be much superior as indeed in some respects it plainly was. In the next three decades, however, the condition and status of unjust enrichment in English law was completely transformed,[5] while the Scots law, starved of research and the stimulus of comparative law, tended to stagnate and sometimes took wrong turnings.[6] The reason was not so much complacency as the fact that the academic branch of the Scottish legal profession, though growing, was still relatively small and over-stretched.[7]  Probably more has been written on our enrichment law in the past 30 years than in the previous 300 years.

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Electronic trade documents in Scots law

By Andrew Steven, Professor of Property Law, University of Edinburgh

Economic importance

In 2021 international trade was worth approximately £1.266 trillion to the UK. The moving of goods across borders still heavily relies on paper documents and practices which developed centuries ago. A trade finance transaction typically involves 20 entities and between 10 and 20 paper documents, totalling over 100 pages. Recent technological developments have enabled the use of secure forms of electronic documents. But the law requires to catch up.

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Continuity, Influences and Integration in Scottish Legal History: Select Essays of David Sellar, edited by Hector L MacQueen (Edinburgh Studies in Law, Edinburgh University Press, 2022)

By Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh

David Sellar (1941-2019) was a pioneering historian of Scots law who convincingly and conclusively rejected previous interpretations of the subject as a series of false starts and rejected experiments. He emphasised instead the continuity of legal development in Scotland, with change a process of integration of external influences with indigenous customs from very early times on. Thus down to the present Scots law embraces Celtic and other customary elements reaching far back into its past, while also having been open to innovation from the developing Canon, Civil, Feudal and English Common law since the middle ages. This too has left deep marks upon the law’s character as a “mixed legal system”.

David’s approach, articulated mainly through essays published in diverse places over four decades, has had significant influence upon general understanding of legal history in Scotland as well as leading to appreciation elsewhere of its comparative significance. Gathering his major essays together in this single collection demonstrates the scope and reach of David’s overall contribution; it is perhaps an approximation to the monograph that he was not spared to write. What distinguishes the contribution from others in the field is the perspective that David himself brought to bear, which was one no other writer in the field could achieve, especially in relation to Celtic and Canon law.

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