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Roman Law, Scots Law and Legal History

Roman Law, Scots Law and Legal History: Selected Essays

William M Gordon
Copyright Date: 2007
Pages: 352
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  • Book Info
    Roman Law, Scots Law and Legal History
    Book Description:

    W M Gordon, who retired from the Douglas Chair of Civil Law at the University of Glasgow in 1999, is well known for his distinguished contribution to Roman law, legal history and land law. He is the author of several books in these subject areas, but it is a mark of his international eminence that much of his prolific output has been published in a wide variety of journals and essay collections outside, as well as within, the UK. This important collection draws together in an accessible format much of his most important writing and, as such, will be in indispensable purchase for all those interested in these core areas of legal scholarship.

    eISBN: 978-0-7486-3081-3
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xi)
    William M Gordon
  4. Acknowledgements
    (pp. xii-xii)

    • 1 Constitutum Possessorium
      (pp. 3-17)

      It has long been disputed whether in classical Roman law constitutum possessorium was recognised as a means of transferring possession and ownership. Many authors have held that, at best, it was recognised where the constituens was the procurator omnium bonorum of the acquirer but that the texts which give it general recognition are the work of the Compilers.¹ Others have held that it was classical,² while one or two have taken up an intermediate position. Riccobono³ held that it was rejected by the majority of the classical writers but widely used in practice and Pflüger⁴ that it could be used...

    • 2 Acquisition of Ownership by traditio and Acquisition of Possession
      (pp. 18-34)

      It is notorious that the classical law on the acquisition of possession by persons in potestas is far from clear. Justinian’s law appears to be that where possession is acquired in respect of the peculium the paterfamilias acquires possession immediately the person in potestas takes the thing. The paterfamilias need not have authorised the taking and he need not know of it. Where possession is acquired otherwise than for the peculium, however, the paterfamilias only acquires where he has authorised the taking or when he learns of it. It is probably the dominant opinion that this scheme also he learns...

    • 3 Dating the Lex Aquilia
      (pp. 35-42)

      Among his notable contributions to the study of the lex Aquilia Professor Beinart has included a study on its origins¹ which takes up the statements of Byzantine jurists – in particular Theophilus and the scholiast “Anonymous” on the Basilica – connecting the lex with a secession of the plebs. This secession is in turn taken to be the so-called Third Secession which was followed by the lex Hortensia of 287 BC which made plebiscites binding on both patricians and plebeians. His conclusion that these statements were quite plausible and help to explain some features of the statute, including the retrospective...

    • 4 The Actio de Posito Reconsidered
      (pp. 43-53)

      When commenting on Inst IV.5.I, in his admirable modern edition of Justinian’s Institutes, Professor Thomas observes a discreet neutrality on the question of the basis of liability in the actio de posito aut suspenso. Like Buckland¹ he simply says that liability followed similar principles to those of the actio de effusis vel deiectis with which the actio de posito is linked both in the Institutes and in the praetor’s edict. But his references in footnotes to articles by Watson, Birks and myself² reveal that, as one would expect, he was fully aware of differences of opinion on whether the defender...

    • 5 Agency and Roman Law
      (pp. 54-60)

      It is a commonplace that Roman law has no fully developed law of agency, particularly in the field of obligations. This seems generally to be regarded as a defect in the law arising from a lack of vision or an inability to overcome completely a rather primitive traditional rule, which prevents third parties from gaining the benefit of or being bound by the acts of others. Thus even the assertion of the fact that Roman law did not in principle accept agency in the modern sense¹ carries something of a criticism of the law, and more or less veiled criticism...

    • 6 Observations on Depositum Irregulare
      (pp. 61-69)

      Since the critical studies of the texts on what is generally described as depositum irregulare made by J C Naber¹ and G Longo² and published in 1906 it has been impossible to argue that the relevant texts are wholly classical. Opinions have differed on whether the proper conclusion to draw from the contradictions, real and apparent, and the signs of interpolation in the texts is that depositum irregulare is wholly a creation of the Compilers or is that it had some classical basis but was extended in scope and modified in its rules when it was incorporated into the law...

    • 7 The Importance of the iusta causa of traditio
      (pp. 70-84)

      Few topics have attracted more attention in the literature of Roman law than the iusta causa of traditio. The traces of discussion among the Roman jurists found in the famous, or notorious, conflict between D 12.1.18pr and D 41.1.36 indicate that there was room for differences of opinion among them. The conflict itself has provided scope for apparently endless discussion among Romanists, and succeeding generations have sought a solution to what on the evidence of the attempts made since the time of the Glossators, appears to be an insoluble problem.¹ As Oxford has been said to be a home of...


    • 8 Roman and Scots Law – the Conditiones si sine Liberis Decesserit
      (pp. 87-106)

      The names of the conditio si institutus sine liberis decesserit and the conditio si testator sine liberis decesserit both suggest a Roman origin. That the first has a Roman origin is commonly accepted¹ but the Roman origin of the second has been doubted.² Re-examination of the question suggests that both these views are at least partIy wrong and that some of those who have admitted the Roman origin of the conditio si testator have misconstrued its source. These considerations would in themselves justify the re-examination but the adoption of the conditiones also affords an interesting illustration of the manner in...

    • 9 The Interpretation of C 8.55.8
      (pp. 107-111)

      C 8. 55. 8, which reproduces CTh 8.13. 3, is not an entirely straightforward text:

      (Impp. Constantius et Constants. A.A. ad Orfitum P.U.):¹ Si umquam libertis patronus filias non habens bona omnia vel partem aliquam facultatum fuerit donatione largitus et postea susceperit liberos, totum quidquid largitus fuerit revertitur in eiusdem donatoris arbitrio ac dicione mansurum. D. V. k. April. Arbitione et Lolliano conss. (AD 355)

      It provides that where a patron without filii has made a gift of all or part of his goods to his freedmen and subsequently has children the gift reverts to him and remains at his...

    • 10 Cinus and Pierre de Belleperche
      (pp. 112-125)

      The fact that Cinus made much use of the work of Pierre de Belleperche is well known. In the beginning of his commentary on the Code he tells us:¹

      Quia omnia nova placent potissime quae sunt utilitate decora bellissime visum est mihi Cyno Pistoriensi, propter novitates modernorum Doctorum super Codice breviter utilia scribere multis superfluis resecatis;

      and, although Savigny² exaggerates somewhat in identifying the “moderni Doctores” with Pierre de Belleperche and Jacques de Révigny, it is clear that Cinus cited them more frequently than others and hence himself acknowledged a considerable debt to the former. What is not so clear...

    • 11 Roman Law in a Nineteenth-century Scottish Case: Gowans v Christie
      (pp. 126-140)

      In his excellent survey of the influence of Roman law on Scots law¹ Professor Stein states that there was in the nineteenth century a decline in the Roman influence on Scots law and observes that:

      A deeper cause of the decline in Roman influence was probably the new situation created by the industrialisation of the nineteenth century. In many respects Roman law was well suited for application in the social and economic circumstances of eighteenth-century Scotland; but now there was a natural tendency when Scots law was lacking to look to English decisions for guidance. The fact that the House...

    • 12 Servitudes. Scots Law and Roman Law
      (pp. 141-147)

      In a collection of essays offering a well deserved tribute to a friend and colleague Mario Talamanca with the collection to be entitled Iuris Vincula it seemed appropriate to discuss certain aspects of the legal bond created by servitudes. The discussion relates primarily to Scots law but where the law of servitudes is concerned Scots law owes a great deal to Roman law and hence it seemed equally appropriate to dedicate the discussion to a Roman lawyer who has made notable contributions to the discipline.

      Although the influence of Roman law in the Scots law of servitudes is clear it...

    • 13 Roman Quasi-delicts and Scots law
      (pp. 148-163)

      Quasi-delict as a term used to denote delictual obligations arising from fault rather than intent is well-established in Scots law. It owes its currency mainly to its use by the writer George Joseph Bell in his Principles of the Law of Scotland which first appeared in 1829. His probable source was Heineccius’s Elementa iuris civilis.¹ He was thus adopting a distinction between delict and quasi-delict which was commonly recognised among Civilian writers. In that particular sense it has come under criticism,² among other things because as a general classification it gives no place to strict liability, but the acceptance of...

    • 14 Risk in Sale – From Roman to Scots Law
      (pp. 164-176)

      Scots law is commonly described as a “mixed” system of law. It is increasingly recognised that all systems are probably mixed in some degree but certain mixes have a particular interest because they involve some of the great families of legal systems which can be identified among the world’s legal systems. The mixture referred to in the case of Scots law is a mixture of English common law and the Civil Law both of which have had widespread influence. It is clear that both of these systems have contributed to what has become modern Scots law. The question is how...


    • 15 The Right of Women to Graduate in Medicine – Scottish Judicial Attitudes in the Nineteenth Century
      (pp. 179-193)

      The paper from which this article derives was prepared for the Fifth British Legal History Conference. Concerned as it was primarily with the use of Roman law in nineteenth-century Scottish cases it did not at first seem likely to have much bearing on the main theme of the Conference, law and social change in British history. In fact the initial expectation proved false in more than one respect. More particularly it proved false in that the course of investigation led to the fascinating case of Jex-Blake v The Senatus Academicus of the University of Edinburgh¹ which raised the important question...

    • 16 Property and Succession Rights
      (pp. 194-210)

      In the law of property, discrimination is most likely to affect the capacity to hold property, the capacity to acquire it or the capacity to dispose of it. The law of succession is relevant both to acquisition and disposal and may contain discriminatory rules to the advantage or disadvantage of the male or the female. To modern eyes at least, there is no obvious reason why gender should be relevant either to the law of property or to the law of succession. Male and female are equally capable of using and enjoying property and equally have needs and desires which...

    • 17 George Joseph Bell – Law Commissioner
      (pp. 211-230)

      While Bell’s Commentaries made Bell’s reputation it may be suspected that his Principles have been more frequently consulted over the years. The Principles were written for the students of the University of Edinburgh, but of the later editions it could be said that they found an adoptive home in Glasgow under the editorship of William Guthrie, Sheriff-Substitute and later Sheriff of Lanarkshire.¹ It therefore seemed not inappropriate in a work to be presented to the author of the Principles of Scottish Private Law, which have their domicile of origin there, to write a note on Bell. At the same time...

    • 18 Variation and Discharge of Land Obligations
      (pp. 231-254)

      The Halliday Report, Conveyancing Legislation and Practice,¹ has been the immediate source of most of the radical changes in Scottish land law which have taken place in recent years. Not many twenty-year-olds can claim to have achieved so much by way of construction, destruction and reconstruction and for this tribute to the chairman of the committee which produced a report which has been so fertile in the creation of new law it is fitting to choose for discussion one of the important innovations to which it led. Variation and discharge of land obligations by a tribunal is one of these...

    • 19 Stair, Grotius and the Sources of Stair’s Institutions
      (pp. 255-266)

      The Institutions of the Law of Scotland which were written by Viscount Stair over a period as yet undetermined but were first published by him in 1681,¹ have a place in the history of Scots law which can be compared with that of Grotius’s Inleidinge tot de Hollandsche Rechts-geleerdheid in the history of Dutch (and Roman-Dutch) law. Whether Stair knew or used this earlier work has never been conclusively established,² but one result of the present study is to confirm the suggestion of Professor Feenstra that he may have used it at second hand through Vinnius’s commentary on the Institutes...

    • 20 The Acts of the Scottish Lords of Council in the Late Fifteenth and Early Sixteenth Centuries: Records and Reports
      (pp. 267-282)

      The purpose of this essay is to make a beginning with an exploration of the content and layout of a register mainly containing decisions of the Scottish lords of council which for simplicity I shall refer to as “the Register”.¹ This Register apparently existed in the sixteenth century but is no longer extant; at any rate, if it has been misplaced rather than lost or destroyed, it has not yet emerged from its hiding place. The main and, as will appear, perhaps the only direct source of our knowledge of it is the work known as Balfour’s Practicks which was...

    • 21 Balfour’s Registrum
      (pp. 283-296)

      This article is a continuation of a previous article¹ that in turn derived from a paper given at the Eleventh British Legal History Conference in Exeter in 1993. That paper and article were primarily concerned with the nature of the entries in the two volume register or registrum to which reference is made in Balfour’s Practicks when citing cases.² In these entries records of cases in the acta of Council and Session are converted into propositions of law vouched by these cases. The entries are in effect embryo law reports and the register is a digest of early case law....


    • 22 Scotland and France. The Legal Connection
      (pp. 299-308)

      Professor Stein’s collected essays on the Roman Civil Law¹ contain more than one contribution relevant to the theme of the present article which it is a particular pleasure to dedicate to him. Much work could still be done on that theme and modern scholarship has opened up and continues to open up new views upon it. What is offered is an interim report.

      Scotland and France were linked by alliance from an early date. Fanciful history placed the earliest alliance in the time of Charlemagne² and there were indeed alliances on particular occasions, such as that between William the Lion...

    • 23 A Comparison of the Influence of Roman Law in England and Scotland
      (pp. 309-323)

      The title of this essay carries certain implications, in particular that there is something which can be identified as Roman law and that Roman law did exercise influence both in England and in Scotland. It is implied, furthermore, that it is worthwhile to make a comparison between these two countries and jurisdictions in this respect. The question of what is meant by Roman law is somewhat more complicated than might at first appear and more is said on this below. So far as comparison is concerned, on a simplistic view it might seem that there is little or no scope...

    • 24 The Civil Law in Scotland
      (pp. 324-340)

      This article is a revised version of an address given at the Annual General Meeting of the Stair Society on 6 November 1999. It explores three issues relating to the use of the Civil Law in Scotland. The first is the distinction to be drawn between Roman Law and the Civil Law and the use that can be made of the Civil Law as distinct from Roman Law. The second is the issue of reception of another legal system, the reception of the Civil Law in Scotland in particular, and the countervailing influence of English law. The third is the...


    • 25 Scotland as a Mixed Jurisdiction
      (pp. 343-351)

      The concept of a mixed jurisdiction is familiar to comparative lawyers. It is one that is open to the criticism that it assumes that some jurisdictions are pure. Whether there are any such in what is described as the developed world may be doubted. It is certainly increasingly unlikely that any jurisdiction will be immune from influence from outside and therefore free from any admixture of non-native elements. There may, therefore, come a day when the concept of the mixed jurisdiction has to be abandoned but for the time being it is a useful one. It seems particularly appropriate when...

    • 26 European Legal History and the Europeanisation of Law
      (pp. 352-361)

      The invitation to give this paper referred to a number of overlapping questions raised by Europeanisation of law, a phenomenon which, however inelegantly described, is now familiar to most lawyers. It was explained that the general theme of the colloquium was to be the Europeanisation of law and the legal curriculum and it was suggested that I might consider such questions as the Europeanisation of legal history itself, the use of legal history in bridging the gap between the Common Law and the Civil Law and the importance of legal history as a help to the understanding of legal forms...

    • 27 Legal Tradition, with Particular Reference to Roman Law
      (pp. 362-375)

      Tony Honoré says of Ulpian,¹ “His importance lies in the part he played in the transmission of the Roman legal heritage”. His interest in Ulpian and that legal heritage may justify the dedication to him of these few remarks on legal tradition, although one of his own claims to honour must be that he is a pioneer who is not content merely to follow tradition.

      It was until recently a commonplace that one of the notable features of Roman law was the strong element of tradition, especially among the jurists who to a large extent created that law. That view...

  10. 28 List of Publications
    (pp. 376-382)
    William M Gordon
  11. Table of Cases
    (pp. 383-386)
  12. Table of Statutes
    (pp. 387-388)
  13. Index
    (pp. 389-398)