Sale of Corporeal Moveables in Scots Law

Stevenson, Margaret (1986) Sale of Corporeal Moveables in Scots Law. LL.M(R) thesis, University of Glasgow.

Abstract

Section I outlines the Roman law of sale, on which the law in Scotland before 1893 was largely based. An examination of Roman law is essential to an understanding of the differences between the English and Scottish laws of sale. These basic differences between the two systems have great relevance to the unfortunate situation which exists today in sale of goods legislation. Section II deals with Scots common law on corporeal moveables before the Sale of Goods Act 1893. The basic principles, mainly derived from Roman law, are illustrated by reference to the works of authoritative writers and case law. The main emphasis is on passing of risk and property, and warrandice against faults. The conclusion drawn is that while the common law would have been by no means ideally suited to modern commercial conditions, it had the advantages of clear basic principles, flexibility, and was of course consistent with other branches of Scots law. Section III examines the English common law of sale before 1893. The conclusions drawn are that the cases were often confused and conflicting and that the law was not ready for codification. The law had developed from empirical situations where "something had gone wrong", rather than being built upon general basic principles as was the Scottish system. The fundamental aspects of the English law are discussed with special reference to the passing of property, the principle of caveat emptor, and warranties and conditions. Section IV deals with the Sale of Goods Act 1893, attempting to identify the areas of the law which are most problematical. Some of these were inherent in the English law, and some have been created because of the imposition of alien and, in Scots law terms, meaningless English rules. Property provisions and quality provisions are discussed with special reference to the problems inherent in Section 13 and Section 14, and to the position as regards remedies. Section V, "The Legacy", looks at the state of the law today and modern developments such as the Romalpa clause, and the problem of minor defects. The conclusion is drawn that it is unlikely that "tinkering" with the concepts of merchantable quality and fitness for purpose as they appear in the 1979 Act would give the law relevance to the kind of contracts which constitute the majority of sales today. It is more likely that the necessary changes can only be effected by new statutory formulations more appropriate to modern trading and commercial conditions.

• Item Type: Thesis (LL.M(R))
• Qualification Level: Masters
• Keywords: Law
• Date of Award: 1986
• Depositing User: Enlighten Team
• Unique ID: glathesis:1986-76606
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 19 Nov 2019 14:04
• Last Modified: 19 Nov 2019 14:04
• URI: https://theses.gla.ac.uk/id/eprint/76606