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Category: Private Law

Compensating unpaid domestic care in the testamentary context: An opportunity for Scots law

by Professor Alexandra Braun, Lord President Reid Chair of Law

According to the Scotland’s Carers research report published in 2015, and the latest update release of April 2022, approximately 700,000 people provide unpaid care and the value of such unpaid care in Scotland is estimated at over £36 billion a year. For comparison, in 2019 the NHS Scotland budget was £13.4 billion. Often such unpaid care is provided by family members, frequently but not always women,[1] and in some cases neighbours and friends. The assumption seems to be that domestic care services are intended to be gratuitous and are thus provided for free. Indeed, domestic care services are sometimes described as ‘labours of love’. But while domestic care services might well be motivated partly by love and affection or a sense of duty, this does not necessarily mean that they should not be compensated, especially since such services can be of significant economic and personal benefit to the care-recipient. My question then is can domestic unpaid care services be compensated on death of the care-recipient through a claim against their estate?

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Formation of Contract in Scots Law: Applying the Governing Principles

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

Many types of contracts do not require to be entered into in writing in Scots law (see Requirements of Writing (Scotland) Act 1995, s1). Where this is the case, it can be difficult to identify whether the parties have reached binding consensus or something short of that. It is possible for parties to reach consensus on all essential terms, and yet agree that they will not be contractually bound until such time as a written contract is signed (Karoulias SA v The Drambuie Liqueur Company Ltd 2005 SLT 813). In Supaseal Glass Ltd v Inverclyde Windows Manufacturing Ltd ([2022] CSOH 49), a recent case decided in the Outer House of the Court of Session, Lord Braid provides a useful summary of the governing principles of formation of contract in Scots law. His objective analysis nicely illustrates Lord President Dunedin’s famous statement that “[c]ommercial contracts cannot be arranged by what people think in their inmost minds. Commercial contracts are made according to what people say” (Muirhead and Turnbull v Dickson (1905) 7F 686 at 694).

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Apparent authority: striking an appropriate balance?   

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

Introduction

Apparent authority is a key concept in agency law, acting to protect third parties negatively impacted by the activities of agents acting without authority. In relevant cases, the law seeks to strike a balance between the interests of the principal and those of the third party. London & Quadrant Housing Trust v Stokes, a decision by Mr Justice Martin Spencer, sitting in the English High Court, Queen’s Bench Division in March of this year ([2022] EWHC 1120 (QB)) is a case which nicely illustrates the difficulties of achieving such a balance.

Criteria for application of apparent authority

The third party must prove that the principal has made an erroneous representation of the agent’s authority, which representation has been relied on by the third party to his or her detriment (for more detailed analysis, see Laura J Macgregor, The Law of Agency in Scotland (2013) paras 11-01 – 11.26). The principal’s representation can be by words or conduct, and recent cases have extended the meaning of a representation significantly. Famously, in First Energy (UK) Ltd v Hungarian International Bank Ltd ([1993] 2 Lloyd’s Rep 194) an agent was considered authorised to communicate information on behalf of his principal, which information could include the extent of his own authority. This comes very close to recognising the idea of a self-authorising agent.

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Moveable Transactions (Scotland) Bill

by Andrew Steven, Professor of Property Law, University of Edinburgh.

The Moveable Transactions (Scotland) Bill was introduced to the Scottish Parliament on 25 May. The Scottish Government is therefore implementing the recommendations made by the Scottish Law Commission in its three-volume Report on Moveable Transactions (Scot Law Com No 249, 2017). The Public Finance Minister, Tom Arthur MSP has described the Bill as “vital to helping businesses and the wider economy”.

The report was the culmination of a large project conducted by the Commission. Its Discussion Paper of 2011 (Scot Law Com DP No 151, 2011), on which Professor George Gretton, Lord President Reid Professor of Law Emeritus in Edinburgh Law School was lead Commissioner, was the subject of a symposium by the Edinburgh Centre for Private Law in October 2011. The papers presented were published in the May 2012 issue of the Edinburgh Law Review. Following this symposium and consultation, I was responsible as lead Commissioner for taking the project through to the 2017 Report.  It has a draft Bill annexed to it, on which the Scottish Government Bill is based.  The Bill is arguably the largest reform to Scottish moveable property law since the Sale of Goods Act 1893, although its successor, the Sale of Goods Act 1979, falls outwith scope because of its UK-wide application.

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Unjustified Enrichment in Scots Law: Time for Consolidation, not Reappraisal?*

By Niall Whitty, Honorary Professor of Edinburgh Law School

1. 1961-1990. I must confess I have been fascinated by the Scots law of unjustified enrichment for over 60 years. My first contact with it occurred in autumn 1961 – in my first year at Edinburgh University Law Faculty.[1]

At that time, the English law of restitution, with its imputed contract theory of quasi-contract[2] and its Coronation cases,[3] (rejecting restitution after frustration of contract) was held up to students in the Civil Law class as evidence that the English law of obligations, while rich in detail, was poor in principle. By contrast, Scots enrichment law, with its obediential obligation theory and civilian Cantiere San Rocco case,[4] was said to be much superior as indeed in some respects it plainly was. In the next three decades, however, the condition and status of unjust enrichment in English law was completely transformed,[5] while the Scots law, starved of research and the stimulus of comparative law, tended to stagnate and sometimes took wrong turnings.[6] The reason was not so much complacency as the fact that the academic branch of the Scottish legal profession, though growing, was still relatively small and over-stretched.[7]  Probably more has been written on our enrichment law in the past 30 years than in the previous 300 years.

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