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

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

Published 5th May 2022

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.

May 5, 2022 Leave a Comment

Electronic trade documents in Scots law

Electronic trade documents in Scots law

Published 14th April 2022

By Andrew Steven, Professor of Property Law, University of Edinburgh

Economic importance

In 2021 international trade was worth approximately £1.266 trillion to the UK. The moving of goods across borders still heavily relies on paper documents and practices which developed centuries ago. A trade finance transaction typically involves 20 entities and between 10 and 20 paper documents, totalling over 100 pages. Recent technological developments have enabled the use of secure forms of electronic documents. But the law requires to catch up.

Apr 14, 2022 Leave a Comment

The Covid Pandemic 2020-2022 and Scottish Contract Law

The Covid Pandemic 2020-2022 and Scottish Contract Law

Published 1st February 2022

By Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh

If one looks back at previous pandemics, such as the so-called “Spanish influenza” of 1918-19, through the lens of the law reports, the most striking finding is an almost complete lack of cases in Scotland (or elsewhere in the United Kingdom), despite the lack of any legislative response at all from a central government yet to assume much responsibility for public health. The only possible Scottish case about Spanish influenza thrown up by a Westlaw search for “influenza” between 1918 and 1925 was McKeating v Frame 1921 SC 382, which concerned an employer’s liability for the death of a female farm servant aged 17 who collapsed with double pneumonia and influenza while at work in March 1919 whereupon the employer sent her without any support to her mother’s home several miles away, travelling on foot and by bus; she died two days later. The first instance decision that the employer had no liability in these circumstances was fortunately over-turned by the Second Division.

Feb 1, 2022 Comments closed

Digital Assets as Transactional Power

Digital Assets as Transactional Power

Published 20th January 2022

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

If the law is to recognise digital assets as property for private law purposes, then it would benefit from analysing them as composite things. The asset is more than mere data. It is a set of transactional functionalities. The most important of these is the capacity of the person who holds the private key to effect new transactions which will be recognised as valid by the technical rules of the system. Analysed in this way, the asset can be viewed as a specific transactional power over unique data entries on the ledger.

Jan 20, 2022 Comments closed

Delictual Liens

Delictual Liens

Published 30th September 2020

By Andrew Steven, Professor of Property Law, University of Edinburgh

In Scotland, the law of rights in security develops slowly. There are reasons for this. First, there is limited legislative time for reform of private law. Second, it is an area which has been relatively neglected in terms of doctrinal study. Third, we are a small jurisdiction and case law is limited.

Nevertheless, there are some grounds for optimism. The Scottish Government’s legislative programme for 2020/21 published on 1 September contains a commitment to “work towards implementation of the Scottish Law Commission proposals on reforming the law relating to Moveable Transactions, with a view to introducing a Bill early in the new Parliament” and accepts that this would “make it easier for businesses and individuals to raise finance, thereby assisting economic recovery”. The last month has also seen the successful defence by Andrew Sweeney of his University of Edinburgh doctoral thesis on the landlord’s hypothec. In addition, an earlier Edinburgh thesis on floating charges by Dr Alisdair MacPherson, now Lecturer in Law at the University of Aberdeen, has been published in book form.#

Sep 30, 2020 Comments closed

Category: Private Law

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

By Niall Whitty, Honorary Professor of Edinburgh Law School

Electronic trade documents in Scots law

By Andrew Steven, Professor of Property Law, University of Edinburgh

The Covid Pandemic 2020-2022 and Scottish Contract Law

Digital Assets as Transactional Power

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

Delictual Liens

By Andrew Steven, Professor of Property Law, University of Edinburgh

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