Comparative law – Edinburgh Private Law Blog

The case for digital assets legislation in Scotland

The case for digital assets legislation in Scotland

Published 11th February 2024

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.

Feb 11, 2024 Leave a Comment

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

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

Published 18th April 2023

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.

Apr 18, 2023 Leave a Comment

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

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

Published 21st March 2023

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

Between 20^th and 21^st 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.

Mar 21, 2023 Leave a Comment

The implied term of good faith in English contract law: a view from North of the border

The implied term of good faith in English contract law: a view from North of the border

Published 13th February 2023

by Prof Laura Macgregor, Chair of Scots Law, Edinburgh Law School*

At the time of writing, the Scottish courts have not yet had the opportunity fully to consider the English implied term of contractual good faith (in Unicorn Tower Ltd v HSBC Bank plc [2018] CSOH 30 [72], Lady Wolffe held that there was no need to adjudicate on the parties’ submissions on this question). This is not surprising: the flow of Scottish reported cases is relatively small, and (Unicorn aside) no case has been reported in which a Scottish court has been asked to apply the relevant English precedents.

Whether a Scottish court would be obliged to apply those English precedents in the context of a suitable case is a difficult question. The law of implied terms in English and Scots contract law is similar, and English precedents are routinely cited and applied in the Scottish courts. That is not the case, however, with contractual good faith. Scots law contains a native, albeit nascent and under-developed, idea of contractual good faith. In a House of Lords case from 2004 Lord Hope stated: “Good faith in Scottish contract law […] is generally an underlying principle of an explanatory and legitimating rather than an active or creative nature” (R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre [2004] UKHL 55, [2005] 2 AC 1, [60]). More recently, the Inner House of the Court of Session reasserted the existence of good faith without expanding on its source or nature (Van Oord UK Ltd v Dragados UK Ltd [2021] CSIH 50).

Feb 13, 2023 Leave a Comment

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)

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)

Published 9th March 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.

Mar 9, 2022 Comments closed

Category: Comparative law

The case for digital assets legislation in Scotland

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

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

The implied term of good faith in English contract law: a view from North of the border

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)

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