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Edinburgh Private Law Blog Posts

CBDC as a financial inclusion toolkit and preparing the relevant legal frameworkdigital money

CBDC as a financial inclusion toolkit and preparing the relevant legal framework

Published 5th September 2023

By Fransiska Ari Indrawati, PhD Candidate, Edinburgh Law School*

Throughout most of history, money as a tool of payment has taken the form of tangible objects such as coins and banknotes. However, the rapid development of digital technology has changed the payment landscape. In the UK, for example, most of the liquid funds used in payments nowadays consist of intangible bank deposits. So far, these are all privately-created forms of money rather than state-issued legal tender.

However, this may be about to change. Many central banks are seeking to expand the supply of state-issued intangible money by introducing central bank digital currencies (CBDCs). CBDCs are a form of digital fiat money issued by a central bank. It is simplest to think of them as traditional coins or banknotes issued by a central bank but existing in a purely digital form. CBDCs thus circulate alongside tangible forms of money and perform their traditional functions, i.e., as a unit of account, medium of exchange, and store of value.

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Child Marriage: Global trends and future prospects – Part 2Marry proposal written in ballon

Child Marriage: Global trends and future prospects – Part 2

Published 22nd August 2023

by Katy Macfarlane, Senior Lecturer in Child and Family Law, University of Edinburgh.

In Part 1 of this blog, I examined the work of UNICEF and the UNFPA to end the practice of child marriage by 2030. What has this got to do with Scotland? The majority of the consequences of child marriage that are highlighted in Part 1 do not apply in Scotland – do they? We live in a progressive, child-focussed, child-centred society. We care about children and child protection – don’t we? In Scotland, the average age of the parties to a marriage is mid-30s. The average age that a woman in Scotland gives birth is between the ages of 30 and 34.[1]

Scotland can ably demonstrate that, in setting the legal minimum age for marriage and civil partnership at 16, it has complied with the relevant international human rights conventions. For example, Article 2 of the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (which the UK ratified in 1970) states that, “States Parties […] shall take legislative action to specify a minimum age for marriage […]”.and it goes on to say that, “No marriage shall be legally entered into by a person under this age”.

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Child Marriage: Global trends and future prospects – Part 1

Child Marriage: Global trends and future prospects – Part 1

Published 10th August 2023

by Katy Macfarlane, Senior Lecturer in Child and Family Law, University of Edinburgh.

The minimum age at which a person can marry in Scotland is 16. This is set out in section 1 of the Marriage (Scotland) Act 1977. The consent of a parent is not required.[1] Is a change to the minimum age in the pipeline? There is growing support in Scotland to increase the minimum age for marriage and civil partnership to age 18. This would bring Scots law in line with the law in England and Wales where the Marriage and Civil Partnership (Minimum Age) Act 2022 came into force in February 2023.[2] It would also comply with the repeated recommendations by the United Nations Committee on the Rights of the Child to increase to the minimum age for marriage to age 18.[3]

Why should the Scottish Government take seriously the increasing calls to set a minimum age of 18 for marriage and civil partnership? To address this question, Part 1 of this blog will look beyond Scotland and the UK and take note of the global trends and future prospects for child marriage.

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Six things you should know about Stair’s theory of contract law.cover Stephen Bogle book

Six things you should know about Stair’s theory of contract law.

Published 5th July 2023

by Dr Stephen Bogle, Senior Lecturer in Private Law, University of Glasgow

Contract before the Enlightenment: the ideas of James Dalrymple, Viscount Stair, 1619-1695 was published in March this year by Oxford University Press. It investigates the intellectual impulses which inspired Viscount Stair’s transformative account of the law of contract. In his wide-ranging, Institutions of the Law of Scotland first published in 1681,[1] Stair offers a specific title on ‘conventional obligations’, which includes an examination of contracts, unilateral promises, firm offers, acceptance, and third-party contracts, as well as remedies, followed by separate titles on nominate contracts (loan, mandate custody, sale, hire and society). It is seen as foundational to the law of contract in Scotland. As Martin Hogg said in his pioneering study of Stair, ‘Any understanding of the nature of the Scots law of obligations, including the theory of Scots contract law, must begin with the Institutions of the Law of Scotland.’[2] The book, therefore, offers a fresh examination of what inspired Stair to place the law of contract on a new philosophical basis. This post gives a summary of the book’s central themes. In other words, it tells you six things you should know about Stair’s account of contract law.

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The Gender Recognition Reform (Scotland) Bill 2022: private international law aspectsScottish Parliament

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

Published 8th June 2023

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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