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Category: Monetary Law

The Scottish Model: The Envy of the English in Nineteenth-century Tax Administration

by Chantal Stebbings,[1] Emeritus Professor of Law and Legal History, University of Exeter

In the second half of the nineteenth century in Britain, income tax was poised to dominate direct taxation in terms of revenue and potential for fiscal growth. The machinery of its administration was based entirely on that developed for the assessed taxes in the eighteenth century. The assessed taxes, which constituted the principal form of direct taxation prior to income tax, aimed at taxing the wealth of individuals through the outward signs of their establishment. The first was the window tax, and by the end of the eighteenth century it had been joined by several more, including taxes in respect of servants, carriages, horses and dogs.[2]

The assessed taxes and the income tax were administered under a localist system, whereby they were assessed and collected by independent, local, lay commissioners and their own appointed local officers. From the mid-nineteenth century the system in England was found to be incapable of keeping up with the increasing scope and sophistication of income tax, and the English revenue boards looked with envy to Scotland which had, by that time, developed a system for the administration of the assessed taxes which was markedly different, and significantly more efficient, to theirs and which they believed they could adopt for income tax. The Scottish system was essentially a modified version of the orthodox pure localist system in that it involved a greater degree of central government participation. The way in which Scotland altered the traditional system forms the subject of this piece.

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Money as Thing and Money as Functions

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

  1. Introduction

Lawyers are wary of providing universal definitions even of their most fundamental concepts. Money is a prime example. There is no authoritative definition of money that allows us to identify with certainty all those things that serve as money in the law and those that do not.  If lawyers have any view of the range of things they treat as money, then it is one informed by its commonly-stated economic functions.[1]  Economists often take the view that “money is what money does”.[2]  Thus the textbook economic definitions generally say that money is a medium of exchange and a unit of account. From these follow other secondary functions, such as to serve as a store of value and a standard of deferred payment.[3]

The purpose of this blog entry is to suggest that the economists’ functional approach to understanding money is also the right one for lawyers to take. Money in the law is an aggregation of legally recognised functions. It is a kind of composite entity.  Its most important functions are to serve as the notional bearer of a certain number of units of monetary value and to discharge debts.  While those functions are attributed by law to certain things (such as coins, banknotes or liquid bank balances), these things are subsumed by the larger legal functions attributed to them.  The functions become more important than the thing itself.

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Homer, Paulus, and the Evolution of Economic Exchange – Part II

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

Introduction

As we saw in the first part of this blog entry, Paulus explains all three of the exchange transactions in the Homeric texts as instances of permutatio.  If we focus only on the material things passing in each direction, that characterisation seems accurate enough.  But that view would overlook the non-material differences among them, which in Homeric times would have separated the transactions into distinct kinds of exchange.  Each had a different motivation which would have placed it in a distinct domain of social activity.  The distinctions among them become still more blurred if we translate permutatio simply as “barter”, which has connotations of a commercially-motivated exchange, one that differs from purchase only in the absence of money.

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Homer, Paulus, and the Evolution of Economic Exchange – Part I

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

Introduction

The opening text of Book XVIII of Justinian’s Digest, on the contract of purchase, quotes an excerpt from Paulus’ Commentary on the Edict.[1]  In this text, Paulus develops a legal test for distinguishing two kinds of exchange: the contract of purchase (emptio) on the one hand and the contract of barter (permutatio) on the other.  Purchase, he says, consists in one party paying a money price (pretium) in exchange for the thing (merx) that is promised and delivered by the other party.  By contrast, a barter is a transaction where the parties promise and exchange two non-monetary things.

Paulus goes on to develop a sharp definition of money for the purposes of his rule.  The monetary price, he says, should consist in coins (nummi) struck in authorised form by the public mint.  For Paulus, the delivery of coined money on one side of the exchange marks the identifying characteristic of a contract of purchase.

Justinian authoritatively accepted Paulus’ view.[2]  His ruling put beyond dispute that purchase and barter were distinct contracts in the revived Roman law of the sixth century AD, and that each had to be enforced by its own distinct actions.  In so ruling, he settled an old disagreement between the Sabinian and Proculian schools of juristic thought.[3]

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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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