In the second of two-part posting, Professor Gillian Black (Commissioner, Scottish Law Commission and Chair of Scots Private Law, University of Edinburgh), Professor Nick Hopkins (Commissioner, Law Commission of England and Wales), and Nic Vetta (Legal Assistant, Scottish Law Commission) outline the Commissions’ joint proposals for a new regulatory regime for surrogacy in Scotland and in England and Wales. Scots law, as it relates to the rights of children generally, has made significant progress in ensuring that the law places their welfare at the heart of all decision making, and recognises ..read more

In the first of two-part posting, Professor Gillian Black (Commissioner, Scottish Law Commission and Chair of Scots Private Law, University of Edinburgh), Professor Nick Hopkins (Commissioner, Law Commission of England and Wales), and Nic Vetta (Legal Assistant, Scottish Law Commission) outline the Commissions’ joint proposals for a new regulatory regime for surrogacy in Scotland and in England and Wales. On 29 March, the published their joint report, Building families through surrogacy: a new law. The report and draft bill outline a new regulatory regime for surrogacy that offers more clarity ..read more

by John MacLeod, Senior Lecturer in Private Law at the University of Edinburgh. The UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 339 generated an unusual degree of interest for a private law decision with reports and commentary in a number of newspapers (helpfully collated here). Much of this is no doubt due to the Tate being such a well-known institution but the case also represents an interesting development in the law of nuisance. The claimants were the leaseholders of flats in London directly opposite the viewing gallery at the to ..read more

By Andrew R C Simpson, Professor in Scots Private Law, School of Law, University of Aberdeen Between 20th and 21st August 2019, in the wonderful setting of the Hardangerfjord in Norway, a group of scholars gathered to compare aspects of Norwegian and Scottish history and legal history. The seminar was organised by Professor Jørn Sunde, and generously supported by the Barony Rosendal and the Stiftinga Hardanger og Voss Museum. It approached comparison of the histories of Norway and Scotland by asking speakers to give papers on historical phenomena or themes that seemed – prima facie – to be com ..read more

by Dr Simone Lamont-Black, Senior Lecturer in International Trade Law, Edinburgh Law School End of February this year, the Supreme Court heard submissions in JTI Polska Sp Zoo v Marek Jakubowski [2021] EWHC 1465 (Comm). The question was whether article 23(4) of the United Nations Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR) should be interpreted according to the Court of Appeal’s view in Sandeman Coprimar SA v Transitos y Transportes Integrales SL [2003] EWCA Civ 113 or the older (criticised)(1) House of Lords decision in Buchanan v Babco Forwarding and ..read more

by Prof Laura Macgregor, Chair of Scots Law, Edinburgh Law School* At the time of writing, the Scottish courts have not yet had the opportunity fully to consider the English implied term of contractual good faith (in Unicorn Tower Ltd v HSBC Bank plc [2018] CSOH 30 [72], Lady Wolffe held that there was no need to adjudicate on the parties’ submissions on this question). This is not surprising: the flow of Scottish reported cases is relatively small, and (Unicorn aside) no case has been reported in which a Scottish court has been asked to apply the relevant English precedents. Whether a Scottis ..read more

by Professor Alexandra Braun, Lord President Reid Chair of Law In a previous blog entry, I examined whether current Scots law allows unpaid domestic carers to bring a claim against the estate of the person whom they have cared for. We saw that in Scotland, unpaid carers who are not in a contractual relationship with the care-recipient and who have not been provided for in the care-recipient’s will, only have a limited set of possible options and that the value of informal care is not currently recognised by way of a specific entitlement against the estate of the care-recipient. What is the sit ..read more

by Professor Alexandra Braun, Lord President Reid Chair of Law According to the Scotland’s Carers research report published in 2015, and the latest update release of April 2022, approximately 700,000 people provide unpaid care and the value of such unpaid care in Scotland is estimated at over £36 billion a year. For comparison, in 2019 the NHS Scotland budget was £13.4 billion. Often such unpaid care is provided by family members, frequently but not always women,[1] and in some cases neighbours and friends. The assumption seems to be that domestic care services are intended to be gra ..read more

by Laura Macgregor, Professor of Scots Law, University of Edinburgh. Many types of contracts do not require to be entered into in writing in Scots law (see Requirements of Writing (Scotland) Act 1995, s1). Where this is the case, it can be difficult to identify whether the parties have reached binding consensus or something short of that. It is possible for parties to reach consensus on all essential terms, and yet agree that they will not be contractually bound until such time as a written contract is signed (Karoulias SA v The Drambuie Liqueur Company Ltd 2005 SLT 813). In Supaseal Glass Ltd ..read more

by David Fox, Professor of Common Law, University of Edinburgh* The Case of the Serbian Loans issued in France (1929) 56 J. Dr. Int’l 977 was one the earliest and most influential of the inter-war cases on the interpretation of gold clauses in long-term bond contracts.  As a decision of the Permanent Court of International Justice in the Hague, its reasoning influenced decisions in the French, English and United States courts.  It established that a payment clause stipulating for payment of gold coin would be interpreted as creating an obligation to pay legal tender money correspondi ..read more