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Category: Legal History

Six things you should know about Stair’s theory of contract law.cover Stephen Bogle book

Six things you should know about Stair’s theory of contract law.

Published 5th July 2023

by Dr Stephen Bogle, Senior Lecturer in Private Law, University of Glasgow

Contract before the Enlightenment: the ideas of James Dalrymple, Viscount Stair, 1619-1695 was published in March this year by Oxford University Press. It investigates the intellectual impulses which inspired Viscount Stair’s transformative account of the law of contract. In his wide-ranging, Institutions of the Law of Scotland first published in 1681,[1] Stair offers a specific title on ‘conventional obligations’, which includes an examination of contracts, unilateral promises, firm offers, acceptance, and third-party contracts, as well as remedies, followed by separate titles on nominate contracts (loan, mandate custody, sale, hire and society). It is seen as foundational to the law of contract in Scotland. As Martin Hogg said in his pioneering study of Stair, ‘Any understanding of the nature of the Scots law of obligations, including the theory of Scots contract law, must begin with the Institutions of the Law of Scotland.’[2] The book, therefore, offers a fresh examination of what inspired Stair to place the law of contract on a new philosophical basis. This post gives a summary of the book’s central themes. In other words, it tells you six things you should know about Stair’s account of contract law.

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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

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 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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Nation-Building, Capital Markets and Meaning of le Franc Or

Nation-Building, Capital Markets and Meaning of le Franc Or

Published 2nd September 2022

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

The Case of the Serbian Loans issued in France (1929) 56 J. Dr. Int’l 977 was one the earliest and most influential of the inter-war cases on the interpretation of gold clauses in long-term bond contracts.  As a decision of the Permanent Court of International Justice in the Hague, its reasoning influenced decisions in the French, English and United States courts.  It established that a payment clause stipulating for payment of gold coin would be interpreted as creating an obligation to pay legal tender money corresponding to the gold value of the money owed by the issuer of the bond.

Now that all world currencies have broken their link with gold, that point of law is unlikely ever to arise again.  But the case has an enduring significance beyond the superseded point it stands for.  The sparse legal record offers a glimpse into important historical events of the early twentieth century, and the way they impinged on the financial arrangements of the governments and investors of the time.  We see financial deals being done by an emerging nation state and the imperial Great Powers of the era.  Less comfortably, we see an example of the inevitable link between finance and war in a time when notions of “ethical investment” were still a century away from being articulated.

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State Finance, Monetary Sovereignty, and the First World War

State Finance, Monetary Sovereignty, and the First World War

Published 13th August 2022

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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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.

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