Mixed Jurisdictions Compared

Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland

Vernon Valentine Palmer
Elspeth Christie Reid
Copyright Date: 2009
Pages: 456
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  • Book Info
    Mixed Jurisdictions Compared
    Book Description:

    A comparative study of the 'mixed jurisdictions' of Scotland and Louisiana.

    eISBN: 978-0-7486-4212-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xi)
    Vernon Palmer and Elspeth Reid
  4. List of Contributors
    (pp. xii-xii)
  5. List of Abbreviations
    (pp. xiii-xvii)
  6. Table of Cases
    (pp. xviii-xxxviii)
  7. 1 Praedial Servitudes
    (pp. 1-29)
    Kenneth G C Reid

    There is much that is similar or the same in the law of praedial¹ servitudes in Scotland and Louisiana, but there are also significant points of difference. These rather general matters are the subject of part A of this chapter, which seeks to give an overview of the law and to set that law in some kind of historical context. To be properly useful, however, a comparison must also descend to the particular; and while there are many aspects of servitudes where a micro-comparison between the laws of Scotland and Louisiana would yield interesting results, there seems a special value...

  8. 2 Title Conditions in Restraint of Trade
    (pp. 30-66)
    John A Lovett

    Title conditions in legal instruments conveying interests in land can do many things in Scotland and Louisiana. They can allow a benefited property owner¹ to gain access to or do something on a burdened property.² They can impose restrictions on the size, location and nature of improvements that may be constructed on a burdened property.³ They can restrict burdened property from being used for certain specific activities – a commercial or industrial enterprise for instance⁴ – when the restriction is designed to protect some obvious “amenity” interest linked to the benefited owner’s actual enjoyment of his property.⁵ They can even,...

  9. 3 Servitudes: Extinction by Non-Use
    (pp. 67-103)
    Roderick R M Paisley

    This chapter examines servitudes and their extinction by non-use. The type of right investigated is limited to “praedial” or “predial” servitudes benefiting a plot of land, known in Scotland as “the dominant tenement”¹ and in Louisiana as “the dominant estate”.² Although it will touch upon “legal” servitudes the coverage will exclude “natural”³ servitudes that are implied by law from a certain state of affairs without reference to the will of the owners of the dominant and servient tenements. As “negative” servitudes⁴ have been abolished in Scotland⁵ but not in Louisiana, this chapter concentrates on the common element: servitudes which afford...

  10. 4 Inheritance and the Surviving Spouse
    (pp. 104-131)
    Ronald J Scalise Jr

    Inheritance laws affect everyone.¹ That reason alone is sufficient for their study. By virtue of their broad application, the laws on inheritance contain significance that few rules of law can duplicate. Even aside from their scope of application, inheritance laws are equally significant in substance, as they “embody broad principles as to how a society considers property should be disposed of on death”.² Although some have characterised the topic of intestacy as “unimportant” because “it is a mass of detail”,³ it is precisely some of that detail which must be examined to discern what value judgments are made by society,...

  11. 5 Ownership of Trust Property in Scotland and Louisiana
    (pp. 132-145)
    James Chalmers

    Trusts make those accustomed to Civilian property systems uncomfortable, given that they seem to rely on the peculiar Common Law separation of legal and equitable ownership. Equity, it seems, is a concept to be avoided at all costs. (This is not always true. The very first sentence of Mackenzie Stuart’s book on the Scottish law of trusts explains that a trust is “nothing except a confidence reposed by one person in another, and enforceable in a Court of Equity”,¹ but few if any Scottish writers would be comfortable making this sort of statement today.)

    For that reason, one would expect...

  12. 6 The Legal Regulation of Adult Domestic Relationships
    (pp. 146-172)
    Kenneth McK Norrie

    Family law, perhaps more than any other area of law, reflects the society it serves. This is not surprising since, after all, society at heart is made up of families, of groupings of individuals bound by ties of blood and affection who share their private lives together and who present to the public as “belonging” to each other. As society and family forms change, so too does family law change: the profound historical shifts in social structures between the beginning and the end of the twentieth century in both the jurisdictions under consideration in this book find their reflection in...

  13. 7 Impediments to Marriage in Scotland and Louisiana: An Historical-Comparative Investigation
    (pp. 173-207)
    J-R Trahan

    The historical development of the law of impediments to marriage in Scotland and Louisiana has proceeded and continues to proceed on closely parallel tracks. In both jurisdictions, the earliest law seems to have been one or another version of the “sacred” law of the Roman Catholic Church (the so-called “canon law”),¹ which, in turn, was in large part but a re-working, in the light of Biblical teaching and Christian moral theology, of post-classical (and, in some respects, even classical) Roman law. In both jurisdictions, this “sacred” law was eventually replaced by “secular” law, a change that, at least at first,...

  14. 8 Contracts of Intellectual Gratification – A Louisiana-Scotland Creation
    (pp. 208-243)
    Vernon Valentine Palmer

    Numerically at least, the impersonal trades and barters of the marketplace constitute the majority of our contracts. In these we primarily seek lucrative ends and the satisfaction of basic needs. They no doubt affect our pocket-books more than our minds, though those worlds are never wholly separate. There is, however, a different type of contract that directly envisions the advancement and development of an individual’s personality interests. Here the salient reason for contracting is to obtain an intangible nonpecuniary asset that enriches our lives in some way, whether it be peace of mind, intellectual pleasures, peer recognition or perhaps social...

  15. 9 The Effect of Unexpected Circumstances on Contracts in Scots and Louisiana Law
    (pp. 244-280)
    Laura J Macgregor

    In times of economic stability, long-term contracts may, in theory, act as an efficient tool of financial planning. They provide a means for buyers of goods or services to achieve certainty of supply, and for sellers to achieve a guaranteed income stream. In times of instability, long-term contracts take on an altogether less attractive mien. Contracting parties and their lawyers are prompted to re-read contract terms in search of escape routes. Most – possibly all – legal systems refuse to release parties from contracts solely on the ground that they have become economically less attractive to perform. However, there are...

  16. 10 Hunting Promissory Estoppel
    (pp. 281-321)
    David V Snyder

    Promissory estoppel came into Louisiana silently, as it pervaded the rest of the United States, under the guises of other doctrines. Even after Williston discovered the hidden current in the American case law and named it “promissory estoppel” (to distinguish it from equitable estoppel), the doctrine remained unacknowledged in Louisiana. With its Civil Law heritage Louisiana had no need to fix Common Law problems, it was thought, and promissory estoppel was only a tool for Common Law repairs. This thinking turned, though, and the state has now enshrined promissory estoppel in the Civil Code. In Scotland, on the other hand,...

  17. 11 Unjustified Enrichment, Subsidiarity and Contract
    (pp. 322-354)
    Hector L MacQueen

    Until recently one could say with some confidence that acceptance of a general principle against unjustified enrichment was one of the hallmarks of a Civilian system of law. The emergence in Common Law systems of “unjust enrichment” as an important head within the law of obligations has qualified but not altogether eliminated the truth of the observation. Certainly one can still be sure that unjustified enrichment in mixed legal systems is an indicator of the Civilian rather than the Common Law dimension in their development, and that the current state of enrichment law in such systems is a benchmark against...

  18. 12 Causation as an Element of Delict/Tort in Scots and Louisiana Law
    (pp. 355-386)
    Martin A Hogg

    At first glance, causation may not seem an obvious subject of enquiry for a comparative work on Scots and Louisiana private law. There is a tendency to assume that every jurisdiction takes the same approach to causation, and that in consequence there is little point to comparative causal analysis. As will be seen in this chapter, while this assumption may be true of the basic principles of causation, specific jurisdictional developments in Scotland and Louisiana have led to the adoption of different analyses in respect of certain causal problems, even if the result turns out to be the same in...

  19. 13 Personality Rights: A Study in Difference
    (pp. 387-410)
    Elspeth Christie Reid

    Over the past century, in both the Civil Law¹ and the Common Law,² the concept of “personality rights” has evolved to encompass that bundle of rights which protects the integrity and inviolability of the individual. Von Bar, for example, writing on European tort law, lists as personality rights the right to protection of life, and to be protected against injury to the body or health, and deprivation of liberty,³ as well as “the right to one’s name, the right to one’s image, and the right to honour and self-esteem”, and the right to protection against unlawful disclosure of personal information...

  20. Index
    (pp. 411-424)