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Books – Part of Our Legal Culture

by Professor Reinhard Zimmermann, Emeritus (Director) of the Max Planck Institute for Comparative and International Private Law, Hamburg

“Mr. Booker, however, would review such a book as Lady Carbury’s ‘Criminal Queens’ without bestowing much trouble on the reading. He could do it almost without cutting the book, so that its value for purposes of after sale might not be injured”: Anthony Trollope, ‘The Way We Live Now’, Chapter 1. 

 (i) Modern academic life is characterized by an apparently unstoppable trend towards specialization. At the same time, we are faced with a proliferation of legal literature. It becomes more and more difficult to follow developments in areas not directly relevant to one’s own field of research. (ii) Contrary to the natural sciences and economics, law is a field of research where the writing of books constitutes a long-established and essential means of producing knowledge. In a number of countries (Germany and Italy among them) a scholar has to write two books in order to qualify for an academic career. In other countries (England and Scotland, for example) an aspiring academic usually has to write a PhD thesis which, in a revised version, is often subsequently published as a book. (iii) With so much writing going on, nobody can read all new law books, even those in a limited field such as contract law, or constitutional law. 

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Primary rights and liability in delict

By John MacLeod, Senior Lecturer in Private Law, University of Edinburgh 

Since the turn of the 21st century, Common Lawyers have discussed the basis of tortious liability extensively.[1] In particular, defences have been mounted against instrumentalism (i.e. considering law in terms of social policy). Much of the analysis turns on the idea that tort is about responding to infringements of primary rights (or to breach of primary duties). Primary rights are rights (and primary duties are duties) which do not arise from infringement of another right. They are contrasted with secondary rights, which do arise from such infringements. Property rights or rights to contractual performance are primary; rights to compensation for culpable damage or breach of contract are secondary.

If torts are thus conceptualised, the reasons which justify a primary right explain the wrongfulness of the tortious action and so support liability. Justifications for primary rights can vary and need not depend on some general logic within tort law.

What, if anything, does this literature mean for Scotland?

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Servitudes in the Sheriff Appeal Court- Acquiescence, Permission and Tolerance

by Alasdair Peterson, Lecturer in Private Law, University of Edinburgh

Introduction

In a recent case, AC & IC Fraser & Son Limited v Munro [2024] SAC (Civ) 41, the Sheriff Appeal Court was faced with two issues relating to the law of servitudes: firstly, whether a landowner’s inaction in response to its neighbour’s use of a diverted route had led, through acquiescence, to a variation in the route of a vehicular right of access; and, secondly, whether an additional pedestrian right of access had been established through positive prescription despite the landowner having permitted the neighbour’s predecessor to use the route over which a servitude was now claimed.

Although these issues are doctrinally distinct, a common theme emerges from the court’s deliberations: how best to characterise a landowner’s response (or lack of response) to a neighbour using their land in a manner apparently unsupported by any existing right of servitude.

In its opinion, delivered by Sheriff Principal Pyle, the court refers to several different descriptions which could be applied to a landowner’s response (or, again, lack of response) in this context – namely “acquiescence”, “permission”, and “tolerance”. As will be seen, although these descriptions overlap in their everyday meaning, their legal meanings are substantively different. Deciding which description best characterises a landowner’s behaviour will therefore be significant when determining whether land has been burdened with a praedial servitude or remains free.

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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 Gender Recognition Reform (Scotland) Bill 2022: private international law aspects

by Eric Clive, CBE, FRSE, Professor emeritus, Edinburgh University Law School

The Secretary of State for Scotland, a Minister of the United Kingdom government, has made an order under section 35 of the Scotland Act 1998 blocking Royal Assent to the Gender Recognition Reform (Scotland) Bill 2022, a bill passed by the Scottish Parliament with a large majority and after considerable consultation and debate. The Scottish government is challenging this order by means of a petition for judicial review. The section 35 order raises important constitutional law issues. It also has private law aspects. It is the latter which are considered here.

One of the reasons given for making the order is that having two different systems for issuing gender recognition certificates within the United Kingdom would cause serious problems. This immediately strikes a private lawyer as odd. We have had dual systems in the law of persons for centuries – in the laws on marriage, divorce, legitimacy, incapacity and other matters of personal status – and they have not given rise to serious problems. This is because the rules of private international law, even in the absence of statutory provision, did not allow them to. A personal status validly acquired in one country would, subject to a few qualifications, be recognised in the other. There is no reason to suppose that this rule is dead, or incapable of application to the personal status of gender. There is no reason to suppose that the new situation feared by the Secretary of State – that a person might be legally of one gender in Scotland and another in England – would ever arise.

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