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By Andrew Steven, Professor of Property Law, University of Edinburgh
Economic importance
In 2021 international trade was worth approximately £1.266 trillion to the UK. The moving of goods across borders still heavily relies on paper documents and practices which developed centuries ago. A trade finance transaction typically involves 20 entities and between 10 and 20 paper documents, totalling over 100 pages. Recent technological developments have enabled the use of secure forms of electronic documents. But the law requires to catch up.
By Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh
David Sellar (1941-2019) was a pioneering historian of Scots law who convincingly and conclusively rejected previous interpretations of the subject as a series of false starts and rejected experiments. He emphasised instead the continuity of legal development in Scotland, with change a process of integration of external influences with indigenous customs from very early times on. Thus down to the present Scots law embraces Celtic and other customary elements reaching far back into its past, while also having been open to innovation from the developing Canon, Civil, Feudal and English Common law since the middle ages. This too has left deep marks upon the law’s character as a “mixed legal system”.
David’s approach, articulated mainly through essays published in diverse places over four decades, has had significant influence upon general understanding of legal history in Scotland as well as leading to appreciation elsewhere of its comparative significance. Gathering his major essays together in this single collection demonstrates the scope and reach of David’s overall contribution; it is perhaps an approximation to the monograph that he was not spared to write. What distinguishes the contribution from others in the field is the perspective that David himself brought to bear, which was one no other writer in the field could achieve, especially in relation to Celtic and Canon law.
By Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh
If one looks back at previous pandemics, such as the so-called “Spanish influenza” of 1918-19, through the lens of the law reports, the most striking finding is an almost complete lack of cases in Scotland (or elsewhere in the United Kingdom), despite the lack of any legislative response at all from a central government yet to assume much responsibility for public health. The only possible Scottish case about Spanish influenza thrown up by a Westlaw search for “influenza” between 1918 and 1925 was McKeating v Frame 1921 SC 382, which concerned an employer’s liability for the death of a female farm servant aged 17 who collapsed with double pneumonia and influenza while at work in March 1919 whereupon the employer sent her without any support to her mother’s home several miles away, travelling on foot and by bus; she died two days later. The first instance decision that the employer had no liability in these circumstances was fortunately over-turned by the Second Division.
By David Fox, Professor of Common Law, University of Edinburgh
If the law is to recognise digital assets as property for private law purposes, then it would benefit from analysing them as composite things. The asset is more than mere data. It is a set of transactional functionalities. The most important of these is the capacity of the person who holds the private key to effect new transactions which will be recognised as valid by the technical rules of the system. Analysed in this way, the asset can be viewed as a specific transactional power over unique data entries on the ledger.
By Andrew Steven, Professor of Property Law, University of Edinburgh
In Scotland, the law of rights in security develops slowly. There are reasons for this. First, there is limited legislative time for reform of private law. Second, it is an area which has been relatively neglected in terms of doctrinal study. Third, we are a small jurisdiction and case law is limited.
Nevertheless, there are some grounds for optimism. The Scottish Government’s legislative programme for 2020/21 published on 1 September contains a commitment to “work towards implementation of the Scottish Law Commission proposals on reforming the law relating to Moveable Transactions, with a view to introducing a Bill early in the new Parliament” and accepts that this would “make it easier for businesses and individuals to raise finance, thereby assisting economic recovery”. The last month has also seen the successful defence by Andrew Sweeney of his University of Edinburgh doctoral thesis on the landlord’s hypothec. In addition, an earlier Edinburgh thesis on floating charges by Dr Alisdair MacPherson, now Lecturer in Law at the University of Aberdeen, has been published in book form.#
