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Category: Private Law

The Need for More (And Better) Private Law in Digital Asset Markets

By Christopher K. Odinet, Josephine R. Witte Professor of Law, University of Iowa; MacCormick Fellow (2023), University of Edinburgh.

For years now, the law around digital asset transactions has been very much up for debate, with some jurisdictions being more active than others in setting the legal parameters around these novel arrangements.  For example, the Singapore International Commercial Court ruled in B2C2 Ltd v Quoine Pte Ltd (2019)[1] that crypto assets can be viewed as property, similar to the English court’s decision in AA v. Persons Unknown involving Bitcoin[2] and the New Zealand High Court’s ruling in Ruscoe and Moore v. Cryptopia Limited (In Liquidation) which held that cryptocurrencies constituted “a species of intangible personal property.”[3] In contrast, in the United States, the law surrounding digital assets has been slow to take shape. Both federal and state courts have approached this area timidly and amendments to statutory commercial laws have started to be considered only recently—specifically, the 2022 amendments to the Uniform Commercial Code.[4]

But, as written elsewhere,[5] the stagnation enveloping this area of the law in the United States appears to be at an end. Following the pattern seen in other jurisdictions, U.S. bankruptcy courts find themselves on the frontlines, confronting a multitude of private law matters stemming from novel transactions involving digital assets. FTX, the world’s third-largest cryptocurrency exchange, declared bankruptcy on November 14, 2022. In July 2022, the crypto lending platform Celsius also sought bankruptcy protection. Additional crypto company insolvencies involving Three Arrow Capital and Voyager Holdings also occurred that summer.

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

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

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.

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

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).

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What evidence can be taken into account in interpreting a contract? Prohibiting reference to pre-contractual negotiations and the effect of an entire agreement clause

by Ms Lorna Richardson, Senior Lecturer in Commercial Law

Scots law, like English law, generally prohibits the use of pre-contractual negotiations when interpreting a contract. This is in contrast to the position in many civilian systems where such negotiations are taken into account in determining what a contract means. The DCFR also permits reference to pre-contractual negotiations, as part of the circumstances in which the contract was entered into, when interpreting a contract (Art II-8:102(1)). The exclusion of such evidence in Scots law is not however absolute and it can be referred to in certain circumstances, for instance, to show that a fact was known to both parties at the time of contract formation, such fact forming part of the “factual matrix” against which the words of the contract must be considered.

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