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Category: English 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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Primary rights and liability in delict

By John MacLeod, Senior Lecturer in Private Law, University of Edinburgh 

Since the turn of the 21st century, Common Lawyers have discussed the basis of tortious liability extensively.[1] In particular, defences have been mounted against instrumentalism (i.e. considering law in terms of social policy). Much of the analysis turns on the idea that tort is about responding to infringements of primary rights (or to breach of primary duties). Primary rights are rights (and primary duties are duties) which do not arise from infringement of another right. They are contrasted with secondary rights, which do arise from such infringements. Property rights or rights to contractual performance are primary; rights to compensation for culpable damage or breach of contract are secondary.

If torts are thus conceptualised, the reasons which justify a primary right explain the wrongfulness of the tortious action and so support liability. Justifications for primary rights can vary and need not depend on some general logic within tort law.

What, if anything, does this literature mean for Scotland?

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Incorporation of Terms and Conditions: Modern Law for a Digital Age?

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

The English Court of Appeal case, Parker-Grennan v Camelot UK Lotteries Ltd,[1]  provides a useful and authoritative reminder of the rules on incorporation of terms and conditions into a contract. The approach taken by the court is similar to the approach taken in an English case decided in 2022, at a lower level in the English judicial hierarchy.[2] Both cases now clarify the law. Nevertheless, the Court of Appeal case illustrates rather aptly that law developed for an environment of hard copy contracts can be applied only with difficulty to the online environment.[3] And while the law may be clear, value judgments continue to be required over whether the company has done what is “reasonably sufficient” to bring terms to the attention of the consumer. This need is particularly acute in situations (unlike the facts of this case) where the terms could be described as “unusual or onerous”.

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Title to Sue for Damage to Hired Property: A Scots Law Perspective

by Lisa Cowan, PhD candidate, University of Edinburgh

In Armstead v Royal & Sun Alliance Insurance Co.[1] the appellant, Lorna Armstead, was involved in a road collision.  While her own car was out of action, she hired a rental car, a Mini Cooper, from Helphire. By a terrible coincidence, she was then involved in a second accident in the rental car.  A third party, insured by the respondent Royal & Sun Alliance (RSA), was at fault. Under the terms of rental agreement with Helphire, Armstead became liable for an amount equivalent to the daily rental rate of the car.  This represented the value of Helphire’s loss of use of the car while it underwent repairs. (This was referred to in the case as the ‘Clause 16 sum’).

When Armstead’s appeal eventually reached the Supreme Court, the issue turned on the interaction between the law of tort and contract.  In addition to the cost of repairing the rental vehicle, could the value of Armstead’s contractual liability to Helphire be recovered from RSA, the insurer of a third party who was at fault?  At stake was the princely sum of £1,560.

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‘My Hands Are Tied’: Unilateral Variation of the Contract of Employment

by David Cabrelli, Professor of Labour Law, University of Edinburgh

Should the law lend legal validity to a clause in a contract that empowers one of the parties to unilaterally vary its terms? And should there be any difference in the applicable rule if the contracting party who has the power to vary is in a superior bargaining position, such as an employer in an employment contract? These are the two principal questions that this post will consider.

In the view of John Stuart Mill, everyone should have the right to consent (or not to consent) to change their mind in the future and to have that position respected by the law.[1] Up to a point, Mill’s position reflects the current law, since the point of departure is that contracts can only be varied by mutual consent, irrespective of whether the bargain concluded is a commercial contract[2] or employment contract.[3] However, there is an exception. For example, in the case of a unilateral variation clause – where the employee has exercised their autonomy to agree to a provision that permits the employer to change the terms of the contract of employment without the approval of the employee – contract law recognises that mutual consent is superfluous.[4] This is controversial for the reason that the employee is in an unequal bargaining position vis-à-vis the employer as well as subordinate to the employer and subject to the latter’s commands. Thus, there is the temptation to reform the law to invalidate unilateral variation clauses. But in this post, I make the claim that this temptation should be resisted, albeit not as a matter of principle, but for doctrinal reasons.

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