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Author: s1932549

State Finance, Monetary Sovereignty, and the First World War

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

Questions of state finance rarely figure in litigation before the domestic courts, and the economic instability wrought by the First World War is now a subject for the books on financial history rather than a problem of practical investment. (For the history, on which this note relies, see Burk, Britain, America and Sinews of War 1914-1918 (1985) and Strachan, Financing the First World War (2004)). In 1937, however, both were live questions before the House of Lords. In R v International Trustee for the Protection of Bondholders Aktiengesellschaft [1937] A.C. 500 the Lords engaged with the perennial conflict between contracting parties’ freedom to hedge against economic risk and a state’s sovereign power to control the monetary system. Although the state in question was the United States of America rather than Great Britain, the court’s recognition of America’s sovereign power worked to the financial advantage of the British government. The government found the value of its war debts reduced.

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Apparent authority: striking an appropriate balance?   

by Laura Macgregor, Professor of Scots Law, University of Edinburgh.

Introduction

Apparent authority is a key concept in agency law, acting to protect third parties negatively impacted by the activities of agents acting without authority. In relevant cases, the law seeks to strike a balance between the interests of the principal and those of the third party. London & Quadrant Housing Trust v Stokes, a decision by Mr Justice Martin Spencer, sitting in the English High Court, Queen’s Bench Division in March of this year ([2022] EWHC 1120 (QB)) is a case which nicely illustrates the difficulties of achieving such a balance.

Criteria for application of apparent authority

The third party must prove that the principal has made an erroneous representation of the agent’s authority, which representation has been relied on by the third party to his or her detriment (for more detailed analysis, see Laura J Macgregor, The Law of Agency in Scotland (2013) paras 11-01 – 11.26). The principal’s representation can be by words or conduct, and recent cases have extended the meaning of a representation significantly. Famously, in First Energy (UK) Ltd v Hungarian International Bank Ltd ([1993] 2 Lloyd’s Rep 194) an agent was considered authorised to communicate information on behalf of his principal, which information could include the extent of his own authority. This comes very close to recognising the idea of a self-authorising agent.

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Any takers? An alternative interpretation to abandonment to facilitate the circular economy in Scots law

by Susanna Macdonald-Mulvihill, doctoral researcher at Edinburgh Law School

In recent years there has been a rise in societal awareness of the need for more sustainability and a general push towards creating a “circular economy” in which one person’s junk becomes another’s useful treasure. Internet based sharing sites, such as Freecycle, or Facebook Community groups, such as The Meadows Share in Edinburgh, have popped up to allow people to freely redistribute their unwanted items to those who might have use for them, thus reducing the amount of waste sent to landfill.  However, as Dr Jill Robbie noted in a blog post for Glasgow University Law School, the Scots law surrounding abandoned property is an impediment to the aims of the circular economy. Robbie is not the first to suggest that the law on abandonment is inadequate: the Scottish Law Commission in their Report on Prescription and Title to Moveable Property also highlighted the absurdity of the Scots position of bona vacantia, whereby the Crown automatically becomes owner of all kinds of useless things, including litter and broken household goods.

The principal problem for the circular economy with the law of abandonment is that anyone who sees something left beside a bin (like the chest of drawers in the picture above) and takes it home is technically stealing (Mackenzie v MacLean 1981 SLT (Sh Ct) 40). My great-uncle would have been shocked to learn that his habit of ‘skip-scavenging’ meant he was, in fact, leading a life of crime. But that is only if we characterise such items as abandoned property. Those who currently think the law requires reform may have overlooked a little known principle that could provide legitimate title to those who can make use of another’s rubbish: traditio incertae personae. In short, this is a “transfer to an uncertain person”. The original owner retains title until another person picks it up and assumes ownership. Thus, the property is never truly abandoned because the intention of the original owner is not simply to surrender ownership but to gift it to whomever wishes to have it.

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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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