Scots Law

Leases for any period exceeding 2 I years, though not unknown, have never been common in Scotland. Recent legislation—the Crofters Act 1886 and the Small Landholders Act 1911—has es tablished a system of leasehold in agricultural subjects not ex ceeding 5o acres, with security of tenure and the right to have the rent fixed judicially, and in this respect there is no English analogy. In other respects the law of leases is, in its main as pects, the same in England and Scotland. The Agricultural Hold ings Acts (13 and 14 Geo. V. ch. 9 and io) which respectively apply, differ only in minor details.

Husband and Wife.

In the law of husband and wife, the en franchisement of married women has reached an approximately equal stage in each country. But the laws as to the constitution of marriage differ. While in England some form of official recog nition or ceremony is necessary to the validity of a marriage, Scots law has preserved the rule that the mere interchange of consent (which may be verbal, and in certain cases is implied) is sufficient. Such marriages, where there is no religious ceremony, are termed irregular, but are fully binding in Scotland. By the Marriage (Scotland) Act 1856 no irregular marriage in Scotland is to be recognized by the English courts unless one or other of the parties has his or her usual residence in Scotland, or had resided there for the preceding 21 days. By the Matrimonial Causes Act 1923 the English law of divorce is so far assimilated to that of Scotland that adultery by either spouse is recognized as a sufficient ground of action. Scots law, however, recognizes, while English law does not, wilful desertion for four years by either spouse. In Scotland a decree of divorce dissolves the mar riage at once; in England neither party is free to re-marry until, in any event, six months have expired.

Succession.

In the law of succession the Administration of Estates Act 1923, by establishing a general order in intestate succession in England, has created a fundamental difference. In Scotland the order of succession in heritable (real) and movable (personal) property remains separate. And Scots law has never admitted absolute freedom of bequest in cases where there is a surviving husband, wife or child. A widow has a legal right, known as ius relictae, to one half of her husband's movable prop erty if there is no surviving child; if there is, to one third. A widower, by the Married Woman's Property Act 1881, has a similar right in the movable property of his wife (ius relicti). Children have a legal right to legitim in the movable estate of each parent, one half if there is no surviving spouse, one-third if there is. All rights may be excluded by ante-nuptial marriage contract ; any particular claim by post-nuptial contract between husband and wife, or between parent and child. They cannot, however, be excluded or limited by will. In heritable property a widow has a legal right (tierce) to a liferent of one-third; a widower, under certain limitations, has a right of courtesy, which gives him a liferent of the whole of the wife's estate.

Wills.

In testate succession English authorities on the con struction of wills are constantly cited in Scotland. Three points of difference may be noted. (I) Scots law recognizes the validity of a will in the testator's handwriting (holograph), without wit nesses. (2) It demands in every case subscription. There are legislative provisions (Conveyancing [Scotland] Act 1924) under which, when a testator cannot write, his will may be subscribed for him by a law agent, justice of the peace or parish minister. (3) The validity of a will is, in Scots law, in no case affected by the subsequent marriage of the testator.

Contracts.

In the general law of contract the most important distinction is that Scots law has never recognized the English doctrine of consideration. Perhaps a very important result is that Scots law admits the principle of ius quaestium tertio, i.e., that C. may have a title to sue on a contract between A. and B.

if made for his benefit ; a right of action excluded in England by the principle that consideration must move from the promisee.

In the contingency of contractual questions where the element of consideration does not enter, such as the effect of error, fraud, misrepresentation or illegality, the law, although not in all points identical, allows the citation of decisions in one country as authorities in the other. This cannot be said of the question as to the necessity of writing in the constitution or proof of an obligation; there, the law, depending on different statutes, seems completely dissimilar. And it has recently been established that where one party is precluded from performing his obligation through some cause beyond his own control, the law of Scotland (following Roman law) will enforce the return of any payment in advance that may have been made (Cantiere San Rocco v. Clyde Shipbuilding Co., 1923, S.C. [H.L.] 105) ; whereas English authorities hold that matters must remain as they were when the invalidating causes became operative (Krell v. Henry, 1903, 2 K.B. Sale of Goods.—In the contract of sale of goods the law of Scotland, until 1894, held that the property in goods sold did not pass until delivery. But in this respect the law has been com pletely altered by the Sale of Goods Act 1893, which provides rules on this subject applicable to both countries, and derived from English law. The Act, however, leaves certain points of variance. Thus s. 4, providing for a memorandum in writing in sales of the value of Lio, is not applicable to Scotland, where parole evidence is in all cases sufficient. In cases of breach of contract the distinction between conditions and warranties, in the technical meaning given to these terms in English law, is not recognized in Scotland. It may be said that in English law the remedies of a buyer depend upon whether the seller's failure is in fulfilment of a condition or of a warranty; in Scots law the question is whether the seller's failure is, in the particular cir cumstances, material.