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I begin with a broad claim that I cannot fully defend here,[1] but wish to illustrate in part: significant areas of European delict (or tort) law are undergoing a subtle but meaningful transformation. Across domains such as environmental harm, data protection, and competition enforcement, delictual claims are increasingly mobilised to serve regulatory aims. As scholars like Kysar have noted, claimants are no longer simply seeking redress for private wrongs.[2] They are enforcing public norms through private litigation.
This shift gives rise to what might be called enforcement or regulatory delicts: private actions that retain the formal structure of delict law but pursue objectives—deterrence, compliance, and systemic accountability—that are quintessentially public. The trend is inspired mainly by American legal practice, where private enforcement, via torts, federal claims, mass litigation, and settlements, is widespread and arguably expanding.[3]
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.
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.
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.
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?
