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Category: Scots law

Romantic Partner Torts: Contemporary Problems and the Legal History of Taking Heartbreak Seriously

Romantic Partner Torts: Contemporary Problems and the Legal History of Taking Heartbreak Seriously

Published 17th December 2025

by Dr Jinal Dadiya, Lecturer in Law, Goldsmiths University of London

Introduction

There has been a recent rise in former romantic partners instituting tortious actions against one another for events which took place within the course of their romantic relationships. This is the case both in the UK,[1] and in other common law jurisdictions.[2] In the last year, English courts have seen at least two influential personalities being sued by their romantic partners in tort.[3] Currently, the law of obligations tries to resolve such disputes by applying general standards of private law, without however recognising special duties or exceptions on account of the parties’ romantic involvement. This reticence has been rationalised through appeals to discretion, emotional complexity, the public-private divide, and the perceived moral volatility of intimacy.[4] As courts and legislatures confront coercive control, emotional manipulation, and technologically mediated abuse, an important jurisprudential reconsideration is underway: what constitutes a civil wrong in the context of romantic relationships, and how might tort law be recalibrated to attend to it? In this blog entry, I argue that normative answers may be found in legal histories of heartbreak.

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Money as Thing and Money as Functions

Money as Thing and Money as Functions

Published 17th November 2025

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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New insights through defamiliarization

New insights through defamiliarization

Published 20th August 2025

By Anna Bleichenbacher, PhD student, University of Basel[1]

I. Prologue

Compare how it felt to speak your first words in a foreign language with how it feels now after years of practice. Once we can do things as a matter of habit, they start to become automatic for us. Deliberately framing something in a different perspective – what the Russian literary theorist Shklovsky said about the role of art in his concept of ‘defamiliarization’ (‘ostranenie’)[2] – challenges that automatic response. Defamiliarization is also possible in legal research. It enables us to take a new look at our own jurisdiction and how we work within it.[3] Studying and researching only in our home jurisdiction makes everything we do there feel natural to us – even inevitable. All that changes once we see it from the outside.

Breaking through this habituation and seeing familiar things with new eyes can be facilitated by a research stay abroad. In 2024 the author of this blog entry undertook a six-month research stay at the University of Edinburgh. This entry deals with the differences in the research and teaching between Edinburgh and Basel, as well as the new perspectives the author gained from her time abroad. She experienced an ‘ostranenie’ that challenged her automatic assumptions of how the law had to be.

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Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Error in the Law of Contract: Shaping a Doctrine Fit for the 21st Century

Published 21st July 2025

by Lorna Richardson, Senior Lecturer in Commercial Law, University of Edinburgh

Introduction

Error is often described as one of the most complex parts of the law of contract. The reason for this is the clash between two opposing interests. On the one hand, a will-based theory of contract focuses on the parties being bound by having, of their own will, chosen to enter into the contract. As such, subjective will is significant. If, due to an error, a party entered into a contract believing something about the contract to be true which was not, she did not intend to be bound to the contract she ultimately entered into. On a will-based approach then, the party in error should not be bound by the contract. On the other hand, however, is the need to uphold contracts that have objectively been entered into. This is important for reasons of certainty. Parties need to be able to arrange their affairs on the basis of what the contract seems to require. It also protects the interests of the party who was not in error in entering into the contract. In framing and shaping the rules on error a legal system must thus seek to balance both positions and to adequately protect the interests of both parties.

In most legal systems it is not any error that can be used as a basis to challenge the validity of a contract. The error must generally relate to something important in relation to the contract. [1] For instance, the DCFR provides for avoidance where, but for the mistake, the mistaken party would not have concluded the contract, or would have done so only on fundamentally different terms (Art II-7:201). Many legal systems provide that an error by one party is not of itself enough to challenge the contract and they require something more, such as the mistake being shared or caused by the other party to the contract.[2] In order to protect the interests of both parties some systems, such as Germany and Greece, allow a party in error to avoid the contract but require her to pay damages to the other for losses caused due to the latter’s reliance on the contract.[3] There is therefore a spectrum between requiring full subjective consent to a contract for it to be upheld, on the one hand, and upholding all contracts objectively entered into, on the other.

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Scots Law Influencing English Law on Deposits and Debt

Scots Law Influencing English Law on Deposits and Debt

Published 2nd April 2025

by Katy Barnett, Professor of Law, The University of Melbourne[1]

As Alexandra Braun has noted, academic consideration of Scots law has tended to focus either on whether the particular hybrid of Roman law and common law is ideal, or on the ways in which Scots law has been influenced by other jurisdictions. It is less common for scholars to consider whether Scots law has influenced other systems, including English law.[2]

A recent English Court of Appeal case provides an opportunity to shine a light on the ways in which Scots law has influenced (and continues to influence) English law. In King Crude Carriers SA v Ridgebury November LLC,[3] the English Court of Appeal changed tack from earlier English cases, which had allowed a defendant who entered into a contract of sale to avoid forfeiting the deposit by deliberately failing to fulfil the condition precedent necessary to trigger the accrual of the debt. Instead, the Court chose to follow Scots law, and adopted the approach taken by Lord Watson in Mackay v Dick & Stevenson.[4] An appeal from this decision is currently before the United Kingdom Supreme Court.

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