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Edinburgh Private Law Blog Posts

James Wood of Wallhouse and the Law of Contractual Misrepresentation: Woods v Tulloch (1893)Coal mine

James Wood of Wallhouse and the Law of Contractual Misrepresentation: Woods v Tulloch (1893)

Published 20th November 2023

by Professor Hector MacQueen, Emeritus Professor of Private Law, Edinburgh Law School*

Back in 2012 I was honoured to be asked to deliver that year’s James Wood Memorial Lecture in Glasgow University Law School. My title was “Private Law, National Identity and the Case of Scotland”. But I thought that before I started on the substance, I should say a few words about James Wood. No previous lecturer appeared to have done so and before the invitation I did not know anything about him. The life and remarkable business career of James Wood of Wallhouse in Torphichen, West Lothian are however well set out in the Dictionary of Scottish Business Biography.[1]  Born in Paisley in 1840, from his early 20s he was a coal merchant and mine-owner around the greater Glasgow area. In 1871 Wood expanded his mining interests into, first, Armadale (West Lothian) and then other places in the county such as Bathgate. His business activities in the area extended in due course to gas, brickworks, steel works and the shale oil industry as well as coal-mining. The business, which was run in partnership with his brother William, came to have offices in London and New York, as well as Glasgow. William looked after sales and merchanting while James concentrated on colliery development and operations. Having been chairman of the Pumpherston Shale Oil Company from the mid-1880s, James became a more or less professional company director after 1900, working in a wide variety of Scottish companies. As his biographer remarks, “his experience and expertise in the business world made him a much sought-after figure to serve on company boards.”

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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)book cover

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)

Published 1st November 2023

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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Kinghorn v Wood and the origins of trusts in ScotlandEdinburgh 1600

Kinghorn v Wood and the origins of trusts in Scotland

Published 9th October 2023

by León Carmona Fontaine, PhD Student at Edinburgh Law School*

If there was a Scottish case from the 1620s in which a Scottish court had decided that there was a sham trust, it would be surprising and significant for both historical and comparative reasons. For a start, Scots lawyers usually consider that a distinct institution known as a trust appeared in Scotland in the late 17th century, and more decisively in the 18th century.[1] Second, sham trusts are usually seen as a recent English legal development. The term ‘sham’ gained a defined legal meaning in England between the late 19th century and the second half of the 20th century (Snook v London and West Riding Investments Ltd [1967] 2 QB 786, 802),[2] and the first case in which an English court found a declaration of trust to be a sham dates from the last decade of the 20th century (Midland Bank plc v Wyatt [1997] 1 BCLC 242). Finally, Scottish courts have occasionally applied the doctrine of sham transactions, but usually by reference to modern English authorities rather than Scottish ones.

Yet, Kinghorn v Wood (1626) Mor. 5072 seems to suggest that both trusts and sham trusts existed in Scotland as early as the early 17th century. Naturally, the trust in question did not go by the name of ‘trust’, and the ‘sham’ was not yet named ‘sham’.  The word ‘trust’ started to be used in Scotland only in the course of the 17th century,[3] and the word ‘sham’ had not yet originated in the English-speaking world.[4] In substance, however, the court found an arrangement that we would nowadays call a trust to be a sham as that term has come to be understood.

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Scottish Trust Law Reform and the Role for the CourtsScottish Parliament

Scottish Trust Law Reform and the Role for the Courts

Published 26th September 2023

by Daniel J. Carr, Senior Lecturer in Private Law, Edinburgh Law School

A.  INTRODUCTION

Change is coming to trusts law in Scotland. November 2022 saw the introduction of the Trusts and Succession (Bill) (“the Bill”) in the Scottish Parliament, and on 15th September 2023 the Delegated Powers and Reform Committee (“the Committee”) published its broadly supportive Stage 1 Report on the Trusts and Succession (Scotland) Bill (“the S1 Report”). The Parliament is scheduled to hold the Stage 1 Debate on the Bill on 28th September 2023. It is, therefore, a good time to build upon several of the Committee’s recommendations to illustrate the potentially significant change in the role of the courts heralded by the Bill’s current form.[1] The cumulative effect of the Bill’s provisions[2] is to increase the scope for the courts’ involvement, potentially significantly altering the culture and approach to Scottish trusts by changing the courts’ terms of engagement with trusts and trustees. What happens in the evolution of that engagement will determine much of the substantive doctrine and practical content of trust law, and therefore the very nature of the Scottish trust as a legal institution.

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The Need for More (And Better) Private Law in Digital Asset Marketsbinary code

The Need for More (And Better) Private Law in Digital Asset Markets

Published 13th September 2023

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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