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Category: Comparative law

Scots Law Influencing English Law on Deposits and Debt

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

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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The case for digital assets legislation in Scotland

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

The England and Wales Law Commission has recently published its final report on Digital Assets (Digital assets – Law Commission).[1]  The report comes after an exhaustive study of the way that existing principles of private law in England and Wales would apply to this emerging class of assets.  It is of great significance since digital assets are fast becoming mainstream vehicles for carrying out financial transactions as conventional forms of financial securities are adapted to work on blockchain technology.  The report acknowledges that private law is as relevant to digital assets as the specialist regimes of financial services regulation that were the main focus of attention in the early days of their development.

The Law Commission report is relevant to Scotland which has an important fintech industry of its own but where the application of fundamental principles of Scots private law to digital assets remains obscure.  Any new clarification of the legal rules in Scotland would need to allow for the subtle similarities and differences between English and Scots property law and for the divergent patterns of legal development in each jurisdiction.

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Nuisance, amenity and praediality: Fearn’s implications in Scotland

by John MacLeod, Senior Lecturer in Private Law at the University of Edinburgh.

The UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 339 generated an unusual degree of interest for a private law decision with reports and commentary in a number of newspapers (helpfully collated here). Much of this is no doubt due to the Tate being such a well-known institution but the case also represents an interesting development in the law of nuisance.

The claimants were the leaseholders of flats in London directly opposite the viewing gallery at the top of the Blavatnik Building, which is part of the Tate Modern. The flats had floor-to-ceiling windows. This meant that the viewing gallery’s visitors (who numbered several hundred thousand per year) had a direct view into the claimants’ flats. It can readily be imagined that this was undesirable for the claimants but there was considerable doubt about whether they had any remedy of in the law of nuisance.

Doubts focused on two questions: 1) whether “overlooking” can, as a matter of principle, ever amount to a nuisance and 2) how courts should approach the question of determining whether a given interference in a particular case.

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Edinburgh Studies in Law Publication: Jørn Øyrehagen Sunde and Andrew R C Simpson (eds), Comparative Perspectives in Scottish and Norwegian Legal History, Trade and Seafaring, 1200-1800

By Andrew R C Simpson, Professor in Scots Private Law, School of Law, University of Aberdeen

Between 20th and 21st August 2019, in the wonderful setting of the Hardangerfjord in Norway, a group of scholars gathered to compare aspects of Norwegian and Scottish history and legal history. The seminar was organised by Professor Jørn Sunde, and generously supported by the Barony Rosendal and the Stiftinga Hardanger og Voss Museum. It approached comparison of the histories of Norway and Scotland by asking speakers to give papers on historical phenomena or themes that seemed – prima facie – to be common to both nations. For example, Dauvit Broun (Glasgow) and Erik Opsahl (Trondheim) were asked to speak on the Treaty of Perth of 1266, which was agreed between Norway and Scotland in the wake of conflict over the Hebrides. Other themes included the development of administrative structures in Scotland and Norway during the thirteenth and fourteenth centuries; the development of apparently common town laws across both kingdoms; and migration across the North Sea and the regulation of trade (particularly in timber) between the two nations during the early modern period. The papers presented constituted a sufficiently illuminating exercise in comparative legal history as to merit publication in a volume. The result is the book Comparative Perspectives in Norwegian Legal History, Trade and Seafaring, 1200-1800, which is shortly to be published by Edinburgh University Press in the Edinburgh Studies in Law series.

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