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Assignation STUDIES in SCOTS LAW

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Assignation STUDIES in SCOTS LAW Assignation STUDIES IN SCOTS LAW Series Editor Kenneth G C Reid Editorial Board Alan R Barr Sandra M Eden George L Gretton STUDIES IN SCOTS LAW VOLUME 1 Assignation Ross Gilbert Anderson EDINBURGH LEGAL EDUCATION TRUST 2008 Published by Edinburgh Legal Education Trust School of Law University of Edinburgh Old College South Bridge Edinburgh EH8 9YL First published 2008 © R G Anderson 2008 The author asserts his moral rights. ISBN 978-0-9556332-0-1 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the copyright owner. Applications for the copyright owner’s permission to reproduce any part of this publication should be addressed to the publisher. Typeset by Etica Press Ltd, Malvern Printed and bound by Bell & Bain Ltd, Glasgow Contents Preface vii Table of Cases ix Table of Statutes xxxi Table of Statutory Instruments xxxv Abbreviations xxxvii 1 Introduction 1 2 Fundamentals 9 3 Functional Equivalents 35 4 The European History 61 5 The Scottish History 91 6 Intimation: Rationale and Rules 119 7 Equipollents and Good Faith Payment 151 8 The Debtor’s Defences 171 9 Arbitration Clauses and Fourth Parties 207 10 Void, Voidable and Conditional 221 11 Contractual Prohibitions and Bad Faith 253 12 Conclusion 283 Index 287 v For Gilbert, Mary, Murray and Keith Preface This work represents a revised version of a thesis on the ‘Transfer of Money Claims in Scots Law’ submitted to the University of Edinburgh for the degree of Doctor of Philosophy in August 2005, defended in January 2006 and awarded in June 2006. The focus is on the general part of the law of assignation. I do not cover special part subjects in any detail. There are two further points about the nature of the work. One is style. The other is content. First, style: a doctoral thesis is written over a long, often formative, period of time. At the outset, the writer writes though he has no experience of writing. By the time the writer has gained some experience, often from mistakes, it is too late. For the doctorate is then already written. Doctoral theses, in short, rarely contain good writing and are thus rarely good reading. And I fear this work, in places, is no exception. Second, content: few legal systems can be as exciting to research as Scots law: it is old, sometimes cosmopolitan and often undiscovered. The PhD student has the time and, hopefully, the inclination, to arm himself with a paper knife and hack his way through unopened sources. This means going back and starting where, in other systems, even a couple of monographs a century would have preserved the state of contemporary law for posterity. The reader should not be surprised, therefore, to see numerous references to old authority. If antiquarian sources have any home, it is in the footnotes of a doctoral thesis. A thesis, it must be emphasised, is not a practitioner’s handbook. But, be that as it may, in this subject more than most, the Scots law of assignation has been based firmly on principle. Sometimes sources are old because they form solid and durable foundations. A modern case on the point, though useful, would only confirm what we already know. Too many people to mention individually have generously assisted me, in many ways: to all of you, my thanks. But two people and one patrimony deserve special mention. The patrimony is the Edinburgh Legal Education Trust. It was the generous scholarship offered by the Trust which first suggested the opportunity of doctoral research on Scots law. It would not have been possible otherwise. Let its patrimony flourish. The two people are Reinhard Zimmermann and George Gretton. Professor Zimmermann generously provided me with the opportunity to work for a year at the Max-Planck-Institut für ausländisches und internationales Privatrecht in Hamburg. The experience was invaluable and memorable; and the opportunity to use the resources in the Institute’s unrivalled library was a privilege indeed. Professor Zimmermann was an understanding and inspiring mentor. For the kindness and generosity extended to me by all members of the Institute and, in particular, by Professor Zimmermann, I will be forever grateful. vii Preface viii My greatest debt of gratitude is to Professor George Gretton. He acted as the primary supervisor of the thesis. He read more drafts than I am sure he cares to remember; and the many penetrating criticisms that he offered improved the thesis immeasurably. I learned much from him. Indeed, if there was any note of sadness on completing the thesis, it was that our regular and lively meetings had to come to an end. Again, my thanks. I am also enormously grateful to Kenneth Reid and Margaret Cherry for their advice, assistance and patience in guiding me through the publication process. With these acknowledgements I need hardly mention that I alone bear the responsibility for remaining errors and omissions. Finally, it would be remiss of me not to record my deep gratitude to Gilbert, Mary, Murray and Keith: my family, for all the support that they, and only they, could provide. Also to Keirs: a special tapadh leat. I have endeavoured to take account of legal developments in Scotland up to 1st May 2007. Ross Gilbert Anderson Glasgow 5 March 2008 Table of Cases References are to paragraph numbers A v B (1534) Balfour, Practicks, 517 . 2-23 A v B (1540) Mor 843 . 6-30 A v B (1676) Mor 2603 . 8-53 A v B (1747) Mor 2648 . 8-43 Abbey National Building Society v Barclays Bank plc 1990 SCLR 639 . 6-41 Abbey National Building Society v Strang 1981 SLT (Sh Ct) 4 . 6-41 Aberdeen (Earl of) and Creditors of Merchiston, Competing (1729) Mor 867; rev’d sub nom Earl of Aberdeen v Earl of March (1730) 1 Pat App 44 . 6-41 Aberdeen Railway Co v Ferrier (1854) 16 D 422 . 6-50 Accountant in Bankruptcy v Orr 2005 SLT 1019 . 6-29 Adam v McRobbie (1845) 7 D 276 . 7-01 Adamson v McMitchell (1624) Mor 859 . 6-24, 11-08, 11-09 Adie v Scrimzeor (1687) Mor 2775 . 6-37 Agra Bank Ltd v Barry (1874) LR 7 HL 135 . 11-16 Aitken v Financial Services Compensation Scheme Ltd 2003 SLT 878 . 2-27, 8-17 Aitken v Independent Insurance Co Ltd 2001 SLT 376 . 8-17 Alderwick v Craig 1916 2 SLT 161 . 7-21, 10-03 Alex Brewster & Sons v Caughey 2002 GWD 15-506 . 11-05, 11-24, 11-30 Alex Lawrie Factors Ltd v Mitchell Engineering Ltd 2001 SLT (Sh Ct) 93 . 8-25, 8-26, 8-30 Alexander v Agnew (1713) Mor 5041 . 7-25 Alexander v Lundies (1675) Mor 940 . 10-33, 11-01, 11-16, 11-18 Alexander Houston & Co v Claud and Charles Stewarts (1772) Hailes 468 . 6-29 Alexander’s Tr v Dymock’s Trs (1883) 10 R 1189 . 6-45 Alfred (A) Herbert Ltd v Scottish Bricks Ltd (1945) 62 Sh Ct Rep 23 . 9-10, 9-12 Alison v Dumfries (1682) Mor Sup Vol Harcase 51 . 8-53 Alison v Duncan (1711) Mor 2657 . 8-48, 8-55 Allan & Son v Turnbull (1833) 11 S 487; aff’d (1834) 7 W & S 281 . 7-36 Allan, Steuart & Co v Creditors of James Stein (1788) Mor 4949 . 11-19 Alston v MacDougall (1887) 15 R 78 . 6-37 Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 . 10-61 Amerada Hess v Rome (2000) 97 (10) LSG 36 . 6-51 Anchindinnie v John Murray, 17 June 1626 . 8-47 Anderson v Dempster (1702) Mor 10213 . 9-25 Anderson v Hamilton & Co (1875) 2 R 355 . 2-36, 2-37, 3-20 Anderson v Lowes (1863) 2 M 100 . 11-01, 11-18 Anderson v Provan (1665) Mor 6235 and 10377 . 2-01 Anderson v Scottish North-Eastern Railway Co (1866) 1 SLR 116 . 2-01 Anderson v Spence (1683) Mor 10286 . 8-13, 8-22 Andrew Melrose & Co v Aitken, Melrose & Co Ltd 1918 1 SLT 109 . 11-29 Anon (1676) 3 Br Sup 180 . 8-42 ix Table of Cases x Antal International Ltd, Re [2003] 2 BCLC 406 . 3-22 Arbuthnot v Colquhoun (1772) Mor 10424, Hailes 464 . 8-11 Arklay’s Trs v Arklay’s Testamentary Trs 1909 2 SLT 120 . .10-14 Armagas Ltd v Mundogas SA, The Ocean Frost [1986] AC 717 . 6-53 Armour v Thyssen Edelstahlwerke AG [1991] 2 AC 339, 1990 SLT 891 . .10-50 Armour and Melvin Ltd v Mitchell 1934 SC 94 . 8-42 Armstrong v Turquand (1858) 9 Irish Common Law Reports 32 . 8-17 Arnott’s Trs v Forbes (1881) 9 R 89 . 8-01 Arthur Saunders Ltd, Re (1981) 17 BLR 125 . 8-64 Asphaltic Limestone Concrete Co Ltd v Glasgow Corporation 1907 SC 463 . 2-36, 2-37, 2-38, 3-20, 3-21, 8-61 Atchison v Benny (1748) Mor 10405 . 2-39 Atlantic Computer Systems plc, Re [1992] Ch 505 . 3-22 Atlantic Engine Co (1920) Ltd (in liquidation) v Lord Advocate 1955 SLT 17 . 8-61 Auchinleck v Williamson (1667) Mor 6033 . 8-11 Ayrshire Pullman Motor Services and Ritchie v Inland Revenue Commissioners (1929) 14 TC 754 . 2-45 Ayton v Romanes (1895) 3 SLT 203 . 6-42, 6-43 Babcock Rosyth Defence Ltd v Grootcon (UK) Ltd 1998 SLT 1143 .
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