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Category: Property law

Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law History

by Dr. Alice Krzanich, Lecturer in Law and Legal History, University of Aberdeen

The history of employment law in Scotland is an under-researched topic. While some aspects of law and labour in Scotland’s past have been examined, others have been barely touched at all. Moreover, while many elements of employment law in modern-day Scotland are similar or identical to those in England and Wales, Scots law has its own distinct history concerning labour and employment. This is due to Scotland’s unique legal institutions and juristic traditions. There is consequently a need to investigate the history of employment law in Scotland more fully and to tease out some of the themes of its development.

This blog entry illustrates some of that distinct legal heritage by examining the employment of domestic servants in early nineteenth-century Scotland. In particular, it shows how Scots contract law regulating domestic service shared certain analytical features with the law of leases in the period c. 1800–1850. This may seem surprising, as the employment of domestic servants may (outwardly at least) seem to have little directly in common with leases of property. Yet this analysis will reveal commonalities between the two, resulting from the influence of Roman law alongside customary practices. Moreover, the law of leases was not the only area of private law that the contract of domestic service shared connections with in the nineteenth century; it was also often conceived as part of the law of familial obligations. This raises further questions about the nature of historical Scottish master-servant law, which this analysis will highlight.

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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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Whose pint is it anyway?

by Susanna Macdonald-Mulvihill, Early Career Fellow, Edinburgh Law School

A woman walks into a bar. Her name is Janet. Janet tells the bartender, Luca, that she would like a dram for herself and to buy a drink for all the other customers currently in the pub. Luca duly pours the whisky and rings up the total for all the drinks. Janet pays, drinks her whisky, and leaves. Luca pours the drinks Janet has bought for the other customers and distributes them to the relevant people, who happily accept and enjoy their beverages.

Kevin, one of the regular customers, was in the toilets when Janet came in and does not know about the transaction. Luca had included a pint of beer for him along with the drinks for the other customers that Janet paid for. Luca had poured it and left it on the bar where Kevin was previously sitting. However, when Kevin, unaware of Janet’s generousity, left the toilet, he walked straight out of the bar to go home. He did not see the beer and the drink remains untouched. Whose pint is it? And why does it matter? 

What this scenario demonstrates is an instance of an indirect donation. An indirect donation is where a donor engages in a transaction with a third party who in turn passes the benefit on to the donee. This can occur in a number of ways. For instance, a donor can be a parent who pays the rent of a university student child. The parent and landlord are the parties who transact but the student child receives the benefit of the accommodation. Alternatively, the donor may be a person who waives a right they have against a third-party in favour of the donee. An example of this could be the renunciation of an inheritance right resulting in that right vesting in the donee. Key to an indirect donation is that the donee is not actively involved in the transaction that leads to the benefit passing to them.

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Property Scholarship Without Boundaries – Lorna Fox O’Mahony and Mark L. Roark, Squatting and the State: Resilient Property in an Age of Crisis (Cambridge University Press 2022)

by John Lovett, De Van D. Daggett, Jr. Distinguished Professor of Law, Loyola University

Many private law scholars, and I am no exception, take pride, or at least comfort, in their adherence to the traditional boundaries of private law scholarship. We interpret traditional legal texts—judicial decisions, civil codes, statutes, uniform laws, reports of distinguished law reform commissions. We often work within our own jurisdictions though we sometimes stage careful comparative excursions that contrast different countries’ solutions to a distinct private law problem. We generally discount politics, though we sometimes acknowledge that deep philosophical commitments can shape legal doctrine.

Could this approach be too limiting? Lorna Fox O’Mahony and Marc L. Roark’s stunning new book, Squatting and the State: Resilient Property in an Age of Crisis (Cambridge University Press 2022) suggests that it may be. “When property law scholarship is bounded,” they write, “either by narrowing its window to the state-jurisdictional level; by focusing on a limited range of legal sources (primarily litigation); or by starting from prior political or philosophical commitments (for example, to “progressive” state action or state forbearance/restraint from action); the perspectives it generates will be similarly bounded.” (377)

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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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