DOCSLIB.ORG

Pledge and Lien STUDIES in SCOTS LAW

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Pledge and Lien STUDIES in SCOTS LAW Pledge and Lien STUDIES IN SCOTS LAW Series Editor Kenneth G C Reid Editorial Board Alan R Barr Sandra M Eden George L Gretton Previous volumes in the Series 1. Ross Gilbert Anderson, Assignation (2008) STUDIES IN SCOTS LAW VOLUME 2 Pledge and Lien Andrew J M Steven Lecturer in Law, University of Edinburgh 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 © A J M Steven 2008 The author asserts his moral rights. ISBN 978-0-9556332-1-8 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 xxiii Table of Statutory Instruments xxvii Abbreviations xxix 1 General 1 2 Pledge: Introduction 5 3 History of Pledge 15 4 Pledge: The Obligation Secured 45 5 Subject Matter of Pledge 57 6 Constitution of Pledge 63 7 Pledge: Rights and Duties of the Parties 89 8 Enforcement and Extinction of Pledge 95 9 Lien: Introduction 107 10 History of Lien 113 11 Lien: The Obligation Secured 161 12 Subject Matter of Lien 171 13 The Pre-Requisites of Lien 177 14 Lien as a Real Right 195 15 Enforcement and Extinction of Lien 203 16 Special Lien 209 17 General Lien 247 18 Pledge and Lien Compared 281 Index 287 v Preface This book is an updated and restructured version of my doctoral thesis. It was submitted to the University of Edinburgh in 1997 and the doctorate awarded in 1998. Some of the thesis has been used heavily in my chapter on ‘Rights in Security over Moveables’ in Kenneth Reid and Reinhard Zimmermann (eds), A History of Private Law in Scotland (2000) volume 1, and in my chapter with Gerrit Pienaar on ‘Rights in Security’ in Reinhard Zimmermann, Daniel Visser and Kenneth Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004). Much of it, however, has remained unpublished, but has been referred to in a number of works, notably David Carey Miller with David Irvine, Corporeal Moveables in Scots Law (2nd edn, 2005). I was therefore pleased to accept the invitation of the series editor to publish it in Studies in Scots Law. There have been no reported cases on pledge in Scotland since 1997 and only a few on lien. Other developments, such as human rights legislation and more academic literature, nevertheless, have necessitated substantive updating of the text. I have also taken the opportunity to reflect further on the more difficult areas and in some places have revised my views. It remains my opinion that there is much room for development in the law of lien. Moreover, the current ‘credit crunch’ has apparently significantly boosted business for pawnbrokers, so we may yet see pledge being litigated again. My primary debt of gratitude is owed to Professor Kenneth Reid and Professor George Gretton, my supervisors between 1994 and 1997, for their help and inspiration, then and since. I am also grateful to Professor John Murray and Professor David Carey Miller, my examiners, for their helpful comments. I acknowledge also the kind assistance of Dr Ross Anderson, Margaret Cherry, David Irvine, Professor Duard Kleyn, Professor Hector MacQueen, Professor Roderick Paisley, Professor Gerrit Pienaar, Alison Struthers, Professor Niall Whitty, Scott Wortley and the librarians at the University of Edinburgh Law Library. Finally, I thank my family for all their support. This book is dedicated to the memory of my grandparents. Andrew J M Steven Edinburgh July 2008 vii Table of Cases References are to paragraph numbers Aberdeen & Smith v Paterson (1812) Hume 127 . 17-16 Aberdeen Trades Council v Shipconstructors & Shipwrights Association 1949 SC (HL) 45 . 11-20 Abermarle Supply Co Ltd v Hind & Co Ltd [1928] 1 KB 307 . 13-32 ABSA Bank t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C) . 13-46, 14-15 Acme Machine Co v Scanlan (1887) 3 Sh Ct Rep 148 . 6-43, 6-47 Adam & Winchester v White’s Tr (1884) 11 R 863 . 15-10 Advanced Industrial Technology Corp Ltd v Bond Street Jewellers Ltd [2006] EWCA Civ 923 . 3-85, 6-51 Advice Centre for Mortgages Ltd (The) v McNicoll 2006 SLT 591, 2006 SCLR 602, 2006 Hous LR 22 . 6-70 Air and General Finance Ltd v RYB Marine Ltd [2007] CSOH 177, 2007 GWD 35-589 . 9-12, 13-28, 13-35, 14-06, 16-23, 16-57, 16-72, 18-02 Albatown Ltd v Credential Group Ltd 2001 GWD 27-1102 . 11-01 Allan v Allan & Co (1831) 9 S 519 . 17-37 Allan v Sawers (1842) 4 D 1356 . 17-89 Allan’s Trs v Lord Advocate 1971 SC (HL) 45, 1971 SLT 62 sub nom Allan’s Trs v Inland Revenue Commissioners . 8-26 Allen v Smith (1862) 12 CBNS 638, 142 ER 1293 . 16-100 Alston’s Tr v Royal Bank of Scotland (1893) 20 R 887 . 4-08, 4-14 Anderson v Dickie 1915 SC (HL) 79 . 10-142 Anderson’s Trs v Fleming (1871) 9 M 718 . 9-10, 10-141, 12-01, 13-03, 16-09, 17-14, 17-17, 17-22 Angus v McLachlan (1883) 23 Ch D 330 . 16-100 Anon (1693) 2 Salk 522, 91 ER 445 . 7-09 Appine’s Creditors (1760) Mor 749 . 13-11 Armour v Thyssen Edelstahlwerke AG 1990 SLT 891 . 2-19, 3-78 Arthur v Anker [1997] QB 564, [1996] 2 WLR 602, [1996] 3 All ER 783 . 11-01 Arthur v Hastie & Jamieson (1770) Mor 14209 . 13-26 Attenborough v Solomon [1913] AC 76 . 6-35 Auld v Hall and Co 12 June 1811 FC . 6-25 Ayton v Colville (1705) Mor 6247 . 10-83, 10-84, 10-92, 12-01, 14-09, 15-11 Balleny v Raeburn and Co 7 June 1808 FC, Mor App, Compensation No 5 . 4-04, 16-06 ix Table of Cases x Bank of Lisbon and South Africa Ltd v De Ornelas 1988 (3) SA 580 (A) . 10-05 Bank of Scotland v Bank of England (1781) Mor 14121 . 10-109 Barbour v Halliday (1840) 2 D 1279 . 11-19, 11-21 Barclay v Guthrie (1887) 3 Sh Ct Rep 103 . 13-24, 13-25 Barclays Bank Ltd v Astley Industrial Trust Ltd [1970] 2 QB 527 . 12-08 Barnton Hotel Co Ltd v Cook (1899) 1 F 1190 . 13-05, 13-16, 13-19 Barr & Shearer v Cooper (1873) 11 M 651 rev’d (1875) 2 R (HL) 14 . 12-01, 13-22, 16-09 Barron v National Bank of Scotland (1852) 14 D 565 . 2-07, 5-05 Beattie v Lord Napier (1832) 9 S 639 . 11-21 Bedford (Earl of) v Lord Balmerino (1662) Mor 9135 . 10-65, 10-70 Belfast Ropework Co Ltd v Bushell [1918] 1 KB 210 . 16-40 Benton & Co v Rowan (1895) 11 Sh Ct Rep 144 . 6-44, 6-46, 6-47 Bermans and Nathans Ltd v Weibye 1983 SC 67, 1983 SLT 299 . 12-01, 13-35, 16-66, 16-67, 16-82, 16-84-16-86, 16-89, 16-101 Bevan v Waters (1828) 3 Car & P 520, 172 ER 529 . 16-11 Biggart v City of Glasgow Bank (1879) 6 R 470 . 3-79 Binning v Brotherstones (1676) Mor 13401 . 9-08, 10-65, 10-76, 10-87, 11-19, 12-04, 16-09, 18-08 Blackwood v The Other Creditors of Sir George Hamilton (1749) Mor 4898 . 6-69 Bleaden v Hancock (1829) 4 Car & P 152, 172 ER 648 . 16-11 Bloxam v Sanders (1825) 4 B & C 941, 107 ER 1309 . 10-64 Bock v Duburoro Investments (Pty) Ltd [2003] 4 All SA 103 (SCA) . 8-07 Bogle v Dunmore & Co (1787) Mor 14216 . 6-24, 13-10, 16-27, 16-52 Bold Buccleugh, The (1851) 7 Moo PCC 267, 13 ER 884 . 9-05, 10-55 Bon Accord Removals v Hainsworth 1993 GWD 28-1785 . 9-12, 12-01, 16-07, 16-29, 16-34, 16-35, 16-47, 17-19, 17-22 Borthwick v Bremner (1833) 12 S 121 . 11-16, 17-37 Boskabelle Ltd v Laird 2006 SLT 1079 . 5-01, 10-02 Bowes, In re, Earl of Strathmore v Vane (1886) 33 Ch D 586 . 17-33 Bowman v Malcolm (1843) 11 M &W 833, 152 ER 1042 . 17-20 Boyd v Drummond, Robbie & Gibson 1994 SCLR 777 . 9-08, 14-12, 15-05, 17-82, 17-87 Braithwaite v Bank of Scotland 1999 SLT 25 . 5-05 Brandao v Barnett (1846) 12 Cl & F 787, 8 ER 1622 . 10-63, 12-08, 17-30, 17-31, 17-33, 17-36 Bridges v Ewing (1836) 15 S 8 . 8-01 Brink’s Trs v SA Bank (1848) 2 M 381 . 4-17 British Linen Co v Ferrier 20 Nov 1807, unreported . 17-32 Broadwood v Granara (1854) 10 Exch 417, 156 ER 499 . 16-85 Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 (A) . 13-46 Brough’s Creditors v Jollie (1793) Mor 2585 .
Load more

Recommended publications
  • The Diligence (Scotland) Regulations 2009
    Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format. SCOTTISH STATUTORY INSTRUMENTS 2009 No. 68 ENFORCEMENT DEBT DILIGENCE The Diligence (Scotland) Regulations 2009 Made - - - - 23rd February 2009 Laid before the Scottish Parliament - - - - 24th February 2009 Coming into force - - 22nd April 2009 The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 155(4), 159 and 159A(3) of the Titles to Land Consolidation (Scotland) Act 1868(1), sections 73B(2), 73G(2) and 73S(1) of the Debtors (Scotland) Act 1987(2); and sections 148(3) and 224(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007(3) and all other powers enabling them to do so. Citation and commencement 1.—(1) These Regulations may be cited as the Diligence (Scotland) Regulations 2009 and come into force on 22nd April 2009. Interpretation 2. In these Regulations– “the 1868 Act” means the Titles to Land Consolidation (Scotland) Act 1868; “the 1987 Act” means the Debtors (Scotland) Act 1987; and “the 2007 Act” means the Bankruptcy and Diligence etc. (Scotland) Act 2007. (1) 1868 c. 101 (“the 1868 Act”). Section 155 was substituted, section 159 amended, and section 159A inserted by, sections 149, 164(1) and 162 respectively of the Bankruptcy and Diligence etc. (Scotland) Act 2007 asp 3 (“the 2007 Act”). Section 164(2) inserts section 159B of the 1868 Act which contains a definition of “prescribed” relevant to the powers under which these Regulations are made. (2) 1987 c. 18 (“the 1987 Act”).
    [Show full text]
  • Formal Requirements of Pledge Under Louisiana Civil Code Article 3158 and Related Articles Valerie Seal Meiners
    Louisiana Law Review Volume 48 | Number 1 September 1987 Formal Requirements of Pledge Under Louisiana Civil Code Article 3158 and Related Articles Valerie Seal Meiners Repository Citation Valerie Seal Meiners, Formal Requirements of Pledge Under Louisiana Civil Code Article 3158 and Related Articles, 48 La. L. Rev. (1987) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol48/iss1/8 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. COMMENTS FORMAL REQUIREMENTS OF PLEDGE UNDER LOUISIANA CIVIL CODE ARTICLE 3158 AND RELATED ARTICLES' According to the scholar Denis, "[t]he pledge springs from natural law and is of the farthest antiquity;" it secured debts "in the primitive relations of men." ' 2 Although the specific beginnings are unknown, fre- quent mention of the pledge in ancient texts evidences its early application3 and points to at least one conclusion: that in its earliest stages of development, formalities of pledge were much simpler, albeit more dra- matic, than those of today. Herodotus, in his Histories, explains that a debtor in ancient Egypt would deliver the mummy of his father to his creditor, who was quite willing to make a loan on this basis. 4 Since the mummy was of great religious value to the debtor, he would certainly pay the debt in order to redeem the pledge. In ancient Athens and Rome, the mechanics of pledge were similarly simple: the debtor and creditor contracted that, upon default of the loan, the debtor would become the slave of the creditor until the debt was repaid.
    [Show full text]
  • Law of Property and Security B
    "" LAW OF PROPERTY AND SECURITY B 2010 PROFESSOR R. MQEKE LAW OF PROPERTY AND SECURITY B COURSE OUTLINE 2010 1 Introduction Overview Law of Property and Security B is a semester course which aims to build upon on the content of the Law of Property and Security A course and to introduce students to other aspects of property law, especially the law relating to security and some of the most important South African property law statutes. Credit value 10 credits which translate to 10 hours to be spent on this course per week. There are two 45 minute lectures per week in this course. Students are thus required to do 8 hours and 30 minutes of independent work in this course per week. 1.3 Assumptions of prior learning It is assumed that: . students have the ability to communicate in written and spoken English at least at the levelof NQFlevel4; . students are capable of independent work. students have passed at least one year of law studies. 2 Outcomes 2.1 Critical outcomes This course will contribute to students attaining the following critical outcomes: 2.1.1 organise and manage themselves; 2.1.2 collect, analyse and evaluate information; 2.1.3 recognise problem solving contexts; 2.1.4 identify and solve problems; 2.1.5 communicate effectively; 2.1.6 participate as responsible citizens and 2.1.7 be culturally sensitive. 2.2 Intended specific outcomes A) Knowledge outcomes: It is intended that students know and understand: 1 the purpose and function of real and personal security and the property statutes dealt with in the syllabus.
    [Show full text]
  • The Royal Society of Edinburgh Prize Lecturess Session 2002-2003
    The Royal Society of Edinburgh Prize Lecturess Session 2002-2003 Click lecture titles to read reports JAMES SCOTT PRIZE LECTURE MAKING LIGHT OF MATHEMATICS Sir Michael Berry, FRS 9 December 2002 BP PRIZE LECTURE RACE AND THE SCOTTISH NATION 1750 - 1900 Dr Colin Kidd FRSE 13 January 2003 NEILL MEDAL PRIZE LECTURE DRAGONFLIES: BEHAVIOUR AND ECOLOGY OF ODONATA Professor Philip Corbet FRSE 3 February 2003 CRF PRIZE LECTURE WAR OF WORDS: THE BRITISH ARMY AND THE WESTERN FRONT Professor Richard Holmes 26 & 28 May 2003 Edinburgh and Aberdeen PRIZE LECTURES 20th James Scott Prize Lecture Sir Michael Berry, FRS 9 December 2002 Making Light of Mathematics Sir Michael Berry, Professor of Physics at the University of Bristol, was elected to the Royal Society in 1982, knighted in 1996 and holds numerous national and international awards, including seven honorary degrees. He is known not only for his pioneering work on phase but also as a communicator to specialists and the layperson alike. In addition, he has been awarded for his work in uniting science and art. The James Scott Prize Lecture is the result of a bequest by James Scott, a farmer at East Pittendreich, near Brechin, and is held every four years on the subject of ‘fundamental concepts of natural philosophy’. It should be noted that Sir Michael’s talk was abundantly positioned close to the water surface, the individual illustrated with photographs and computer graphics so images can be seen. The mathematics describing this the following report cannot summarise it fully. phenomenon of natural focusing is “catastrophe Physics and mathematics have evolved together and theory”.
    [Show full text]
  • Security Interests Under Pledge Agreements
    THE YALE LAW JOURNAL EDITORIAL BOARD ALLEN H. MfERRILL Editor-in-Chief Romwr H. HARRY JAciz M. Giusn4,- RUSSELL G. OLSEN MARSHALL HoatrLoWEfl Comment Editors Note Editors FRANRLN M. SCHULTZ RicrrarD A. SOLO.I0No Article and Book Review Editor Case Editor LEwIs C. BOSE TYLER HULL Txxomis C. MAsoz. ERIc H. HAGER EDWIN P. KAUF73A Do:NALD L SmwmLns HENRY KoHN, JR. Editors in Military Service: Louis F. OBERuoR0ER. Editor-in-Chlef DONALD F. KEEFE. Comwent Editor Subscription price $4.50 per year 80 cents pcr ntzmbcr Canadian subscription price $5.00 per ycar: Foreign. $5.25 per year Yale Law JournalCompany, Inc., Box 401A, Yahk Station, Ncw, Itavcn, Con12. SECURITY INTERESTS UNDER PLEDGE AGREEMENTS THE extent to which security law in responding to the ned of business practice nmust reconcile conflicting commercial foirces is illustrated Iby the doctrinal history of the pledge. Both parties to a credit transaction frequently desire, for reasons of expense or business expediency, that the security reb be retained by the borrower. On the other hand, third persons may demand notice of the lender's security interest in order to guide their course uf dealing with the debtor.' The search for a mean proves particularly difficult when the parties avail themselves of the pledge device. Once borrower and lender select its simple formula in order to avoid the requirements sur- rounding such alternative devices as the chattel mortgage and conditional sale, the courts respond to the demand of third persons for notice by com- pelling the lender to take possession of the property as a condition precedent 1.
    [Show full text]
  • Real Estate 2018
    ICLG The International Comparative Legal Guide to: Real Estate 2018 13th Edition A practical cross-border insight into real estate law Published by Global Legal Group with contributions from: Attorneys-at-Law Project Law Ltd Machado, Meyer, Sendacz e Opice Advogados BKA Attorneys at Law Maples and Calder Brulc Gaberščik & Partners, Law Firm, Ltd. Meyerlustenberger Lachenal AG BSA Ahmad Bin Hezeem & Associates LLP Nishimura & Asahi Cordero & Cordero Abogados Norton Rose Fulbright South Africa Inc. Cushman & Wakefield Osler, Hoskin & Harcourt LLP Gianni, Origoni, Grippo, Cappelli & Partners PAV Law Offices Greenberg Traurig Grzesiak sp.k Prieto Cabrera & Asociados SRL Greenberg Traurig, LLP Ropes & Gray LLP GSK Stockmann Shepherd and Wedderburn LLP Gürlich & Co. Simon Reid-Kay & Associates Hogan Lovells Tirard, Naudin Howard Kennedy Toronto CREW Konečná & Zacha Tughans Kubes Passeyrer Attorneys at Law Ziv Lev & Co. Law Office The International Comparative Legal Guide to: Real Estate 2018 General Chapters: 1 Real Estate Joint Ventures: New Paradigm or Passing Fashion? – Iain Morpeth, Ropes & Gray LLP 1 2 Serviced Offices: The Changing Face of the Real Estate Market – Rebecca Davison & Nicky Stewart, Howard Kennedy 5 Contributing Editor 3 Toronto CREW and an Outlook on the Canadian Market for 2018 – Rosalyn Wallace, Toronto CREW Iain Morpeth, & Stuart Barron, Cushman & Wakefield 9 Ropes & Gray LLP Sales Director Country Question and Answer Chapters: Florjan Osmani 4 Austria Kubes Passeyrer Attorneys at Law: Dr. David Kubes & Mag. Marko Marjanovic 12 Account Director 5 Brazil Machado, Meyer, Sendacz e Opice Advogados: Maria Flavia Candido Seabra Oliver Smith & Fatima Tadea Rombola Fonseca 20 Sales Support Manager Toni Hayward 6 Canada Osler, Hoskin & Harcourt LLP: Heather McKean & Stella Di Cresce 30 Senior Editors 7 Costa Rica Cordero & Cordero Abogados: Hernán Cordero B.
    [Show full text]
  • The Lex Aquilia and the Standards of Care
    ZSOLT SARKADY The Lex Aquilia and the Standards of Care In Ancient Rome the only acts recognized as criminal were „exceptional invasions of public security or of the general order of society".' As such, Roman 'criminal law' would have failed to meet the needs of any highly organized society. The Romans decided upon a „practical remedy", the laws of Delict, by which they „extended the doctrine of civil obligations", 2 to cover the realm of personal property. Violations of these standards of care carried with them „penal consequences". 3 Private law was originally dominated by the Twelve Tables, which soon became „harsh and inflexible antique rules" in cosmopolitan Rome. The „punitive vengeance" of the Twelve Tables evolved into legal sanctions to compel compensation when damage was done to private property. However, these sanctions retained a distinct „punitive character". 4 Sanctions were thus developed to protect three principal rights of the Roman citizen not originally protected by criminal law: the security of his property, his security from theft and his right to be „protected from deliberate anti-social attacks" on his dignity.' The Lex Aquilia governed loss wrongfully inflicted to property (damnum iniuria datum), whereas the Delicts of Furtum, Rapina and Iniuria were designed to deal with theft, robbery and attacks on personal dignity respectively. In order to be liable under the Lex Aquilia the defendant had to be found guilty of intent and culpable conduct (iniuria datum), and thus to have „wrongfully inflicted" loss (datum) on the plaintiff. 6 The early Romans maintained strict standards that governed personal behavior and this is reflected in the legal reasoning implicit in the lex.
    [Show full text]
  • The Genius of Roman Law from a Law and Economics Perspective
    THE GENIUS OF ROMAN LAW FROM A LAW AND ECONOMICS PERSPECTIVE By Juan Javier del Granado 1. What makes Roman law so admirable? 2. Asymmetric information and numerus clausus in Roman private law 2.1 Roman law of property 2.1.1 Clearly defined private domains 2.1.2 Private management of resources 2.2 Roman law of obligations 2.2.1 Private choices to co-operate 2.2.2 Private choices to co-operate without stipulating all eventualities 2.2.3 Private co-operation within extra-contractual relationships 2.2.4 Private co-operation between strangers 2.3 Roman law of commerce and finance 3. Private self-help in Roman law procedure 4. Roman legal scholarship in the restatement of civil law along the lines of law and economics 1. What makes Roman law so admirable? Law and economics aids us in understanding why Roman law is still worthy of admiration and emulation, what constitutes the “genius” of Roman law. For purposes of this paper, “Roman law” means the legal system of the Roman classical period, from about 300 B.C. to about 300 A.D. I will not attempt the tiresome job of being or trying to be a legal historian in this paper. In the manner of German pandect science, let us stipulate that I may arbitrarily choose certain parts of Roman law as being especially noteworthy to the design of an ideal private law system. This paper discusses legal scholarship from the ius commune. It will also discuss a few Greek philosophical ideas which I believe are important in the Roman legal system.
    [Show full text]
  • Empire, Trade, and the Use of Agents in the 19Th Century: the “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law
    Louisiana Law Review Volume 79 Number 4 Summer 2019 Article 6 6-19-2019 Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law Laura Macgregor Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev Part of the Agency Commons, and the Commercial Law Commons Repository Citation Laura Macgregor, Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law, 79 La. L. Rev. (2019) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol79/iss4/6 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law Laura Macgregor* TABLE OF CONTENTS Introduction .................................................................................. 986 I. The Nature and Economic Benefits of Undisclosed Agency ..................................................................... 992 II. The Concept of a “Mixed Legal System” and Agency Law in Mixed Legal System Scholarship ....................... 997 III. Nature and Historical Development of Scots Law ..................... 1002 A. The Reception of Roman Law ............................................. 1002 B. The Institutional Period and Union with England ............... 1004 C. The Development of Scots Commercial Law ...................... 1006 D. When Did Scots Law Become Mixed in Nature? ................ 1008 IV. Undisclosed and Unidentified Agency in English Law ............
    [Show full text]
  • Partnership Law (LC 283; SLC 192)
    The Law Commission and The Scottish Law Commission (LAW COM No 283) (SCOT LAW COM No 192) PARTNERSHIP LAW Report on a Reference under Section 3(1)(e) of the Law Commissions Act 1965 Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty Laid before the Scottish Parliament by the Scottish Ministers November 2003 Cm 6015 SE/2003/299 £xx.xx The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie QC The Chief Executive of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. The Scottish Law Commissioners are: The Honourable Lord Eassie, Chairman Professor Gerard Maher Professor Kenneth G C Reid Professor Joseph M Thomson Mr Colin J Tyre QC The Secretary of the Scottish Law Commission is Miss Jane L McLeod and its offices are at 140 Causewayside, Edinburgh EH9 1PR. The terms of this report were agreed on 10 October 2003. The text of this report is available on the Internet at: http://www.lawcom.gov.uk http://www.scotlawcom.gov.uk ii THE LAW COMMISSION THE SCOTTISH LAW COMMISSION PARTNERSHIP LAW CONTENTS Paragraph Page SECTION A: INTRODUCTORY (PARTS I – III) PART I: INTRODUCTION 1 Partnership law reform in its context 1.1 1 The role of partnerships in the business world
    [Show full text]
  • The Case of Orkney in Eighteenth-Century Scotland
    Meiji Journal of Political Science and Economics Volume 3, 2014 The Enlightenment Idea of Improvement and its Discontents: The Case of Orkney in Eighteenth-Century Scotland Hiroyuki Furuya Associate Professor of the History of Economic Thought, Tokushima Bunri University, Japan Abstract The aim of this paper is to offer a view of improvement emerged in the age of Enlightenment in Scotland. This paper examines an economic debate that took place in the context of a bitterly-fought legal battle referred to as the Pundlar Process (1733–1759). It was contested between the Earl of Morton, who was a feudal superior of Orkney and Shetland, and local lairds. This paper focuses on two contemporary documents concerning the lairds as plaintiffs and Morton as defendant respectively: James Mackenzie’s The General Grievances and Oppression of the Isles of Orkney and Shetland (1750), and Thomas Hepburn’s A Letter to a Gentleman from his Friend in Orkney, Containing the True Causes of the Poverty of that Country (1760). This paper seeks to illuminate the contrasts revealed during the age of Enlightenment in Scotland by focusing on the conflict between those who tried to promote ‘improvement’ in order to adapt the economy to increased competition brought about by trade expansion after the Acts of Union of 1707, and those in the traditional, local communities who sought out alternative ways to accommodate themselves to this change. Keywords: Scottish Enlightenment, Improvement, Orkney, Pundlar Process, Thomas Hepburn 1. Introduction The age of Enlightenment in Scotland is usually associated with promising prospects such as innovations in the fields of philosophy, literature and economic thought, improvements to agricultural methods, and the dawn of the industrial revolution (Smout, 1983).
    [Show full text]
  • Prescription (Scotland) Bill (SP Bill 26) As Introduced in the Scottish Parliament on 8 February 2018
    This document relates to the Prescription (Scotland) Bill (SP Bill 26) as introduced in the Scottish Parliament on 8 February 2018 PRESCRIPTION (SCOTLAND) BILL —————————— POLICY MEMORANDUM INTRODUCTION 1. As required under Rule 9.3.3 of the Parliament‘s Standing Orders, this Policy Memorandum is published to accompany the Prescription (Scotland) Bill introduced in the Scottish Parliament on 8 February 2018. 2. The following other accompanying documents are published separately: Explanatory Notes (SP Bill 26–EN); a Financial Memorandum (SP Bill 26–FM); statements on legislative competence by the Presiding Officer and the Scottish Government (SP Bill 26–LC). 3. This Policy Memorandum has been prepared by the Scottish Government to set out the Government‘s policy behind the Bill. It does not form part of the Bill and has not been endorsed by the Parliament. POLICY OBJECTIVES OF THE BILL 4. The doctrine of prescription serves a vital function in the civil justice system. Negative prescription sets time-limits for when obligations (and rights), such as obligations under a contract, are extinguished. The policy objective of the Bill is to change the law of negative prescription to address certain issues which have caused or may cause difficulty in practice. These changes are designed to increase clarity, certainty and fairness as well as promote a more efficient use of resources, such as pursuers being less likely to have to raise court proceedings to preserve a right, and reduce costs for those involved in litigation and insurance. 5. The Bill makes a number of amendments to the Prescription and Limitation (Scotland) Act 1973 (‗the 1973 Act‘).
    [Show full text]