Book Review Volume 11:3

Book Review(s)

Table of Contents

BOOK REVIEW

Mercantile Law of Scotland

by J. J. Gow

W. Green and Son, Edinburgh 1964, pp. cix, 779

To appreciate this book fully one ought to recall its background.
Professor Gow, in origin, is a Scots lawyer who has long excelled
as a penetrating writer on a variety of legal subjects.. He is also
now an authority on the Common law having taught, lectured and
practiced in different parts of the Commonwealth. Secondly the
Scots, for whom this volume is primarily written, share an island
with the English and they have the smaller share. There are no
barriers of any kind between the two countries except in law and
to some extent in the church. Scotland has always had its own legal
system, different in origin and early development from English law.
There was an indigenous customary law which was limited in scope
and when the early Scottish jurists could not find a remedy in their
own laws they turned to Roman law, which has consequently a pro-
found influence on Scots law. Many of our fundamental concepts
are derived, with certain adaptations, from Roman law. The parlia-
ments of the two countries were united in 1707 so that the legisla-
ture is in London and the final court of appeal for civil jurisdiction
has been the House of Lords, which did not have a Scottish judge
until 1876. In the circumstances it was inevitable that English con-
cepts should be imported into Scots law, sometimes to the prejudice
of the existing law, and the assimilation is more marked in the field
of commercial law.

Nowhere is all this more eloquently explained than in Professor
Gow’s book for he is an admirer of Scots law. For this surrender
of national principles he would lay part of the blame upon the prac-
tising lawyers, no doubt with good cause. His very first sentence
is a matter of some irony that the language in
sets the pace. “It
which two Scots lawyers (Sir Walter Scott and Robert Louis Steven-
son) wrote immortal novels should these many years past prove an
awkward obstacle to the understanding by the Scots lawyer of the

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institutions of the system of law which is our national and cultural
heritage.”

The difficulty with a book of this kind, covering as it does, the
whole field of commercial law, is the wealth of material requiring
to be dealt with and the fact that much of it is already available
in greater detail in separate text books. The width and complexity
of the field restricts an author in developing his personal views.
Professor Gow, however, has succeeded remarkably well in making
his own personal impact by original, if controversial, contributions.
New thinking in law as elsewhere always gives rise to corresponding
opposition and no doubt that will happen here but Professor Gow
is well qualified to meet it.

The first chapter is on voluntary obligation and it is quite a
masterpiece, as was to be expected, since it has always been one of his
favourite themes. He begins with a discussion on promise pointing
out that whereas English law does not enforce bare promise Scots
law does. “The English generalisation may be ‘where there is a
promise for a promise there is a contract’… with us the relevant
generalisation is –
‘where there is a promise in law there is an
obligation’.” The latter would be derived from the Roman
law
promise by stipulation.

In dealing with frustation of an obligation he prefers the Scot-
tish attitude. On this he says (p. 36), “Until recently there has
been a fundamental divergence between the Scottish and English
attitude to frustration. The Scots view has always been that the
court in the exercise of its inherent equitable jurisdiction does, upon
a proper construction of the contract, what seems just in the cir-
cumstances. For long enough the English view, strongly influenced
by the concept of the ‘positive contract’, has been that of the ‘im-
plied term’ of which the apotheosis, and perhaps the requiem, was
the speech of Lord Simonds in British Movietone News Ltd. v. Lon-
don & District Cinemas. The artificiality of this theory scarcely
merits comment. …
It requires the party taking the plea to ex-
coriate the contract until he reveals a term which almost certainly
the parties never had in mind, and which, if they had, would have
failed to agree upon.”

The effect of error (or mistake) in setting aside a contract is
something on which the law of Scotland is not settled and for this
the learned author also blames the influence of English law. He
says (p. 53), “Unfortunately the ill-advised attempted anglicisation
of our law of sale of corporeal moveables brought with it notions
of English ‘contract’, and what with forgetting our own and better

No. 3]

BOOK REVIEW

concepts and misunderstanding English law there has emerged a
brew of which the witches in Macbeth might well be proud, but
which reflects little credit on Scots lawyers”. The resulting brew
is certainly all he says of it, but the strictures are not wholly de-
served. Error or mistake appears to give trouble in all systems of
law.

sometimes controversial –

Another of his major chapers deals with the law of sale of
goods and here again there are contributions formulated for the
but always stimulating. In
first time –
approaching this chapter it must be kept in mind that the Sale of
Goods Act, 1893, superseded the common law of Scotland as regards
the sale of corporeal moveables. Scots law was based on the maxim
traditionibus non nudis pactis dominia rerum transferuntur. The
Act imported the classifying of goods as a condition of determining
when the property passes and the learned author regrets the change.
In particular he does not approve of the exaltation of the doctrine
caveat emptor. On this he comments (p. 160), “Probably no other
part of the law of sale so 6loquently illustrates the divergent atti-
tudes of Scots law and English law as does that part dealing with
the obligation of the seller to supply goods worth the price he is
getting for them. In principle English law adheres to caveat emptor
that is, ‘with regard to the goodness of the wares purchased, the
vendor is not bound to answer, unless he expressly warrants them
to be sound and good; or unless he knew them to be otherwise, and
hath used any art to disguise them’. … Scots law is and always
has been otherwiise, there is no need to prove express warrandice,
the goods must be price-worthy. … Sale is a bargain bonae fidei
… every man selling an article is bound, thought nothing is said
of the quality, to supply a good article without defect, unless there
are circumstances to show that an inferior article was agreed on.”
Although that is the law of Scotland it does not follow that we shall
continue to apply it but Professor Gow earnestly hopes we shall.
On this he says (p. 181), “There is nothing, therefore, save timidity
and lack of confidence in the genius of our own system of juris-
prudence to prevent our courts from applying our theory of price-
worthiness under modern circumstances”.

On hire-purchase the learned author has already written what
is the standard work in Scotland on the subject. Significantly what
he says here is (p. 249) “If never a concept should have found its way
‘hire-purchase’, the
into Scots law that concept is the so-called
spawn of the decision in Helby V. Matthews where it was held that
the hirer of a piano who had the privilege of converting his hire
into a purchase of the piano but was under no legal obligation so

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to do was not a buyer who had agreed to buy and, therefore, could
not give a good title to a third party… Had we in the realm of
sale retained our freedom and exercised imaginative vigour, we would
have continued to adhere to the concept of conditional sale expressed
in Murdoch V. Greig.” Having thus condemned it he proceeds to
give a brilliant analysis of the transaction justifying his criticism
as he does so.

It is impossible to comment on all that his book deals with but
the chapter on negotiable instruments deserves special mention.
Writers on this subject tend to avoid explanations of the practice
of merchants and consequently tend to give the impression of not
having practical experience but not so this learned author. After
having laid about him on most of the other subjects he calms down
and gives a splendidly objective account of this unexciting branch
of the law so that many of his readers will close this chapter feeling
that they have really understood this subject for the first time.
Instead of beginning by uselessly quoting a definition he gives
practical illustrations leading up to the definition.

This book then is an outstanding contribution

to the law of
Scotland which was sorely needed. In spite of its variety and the
need to remain on basic principles it is a scholarly work; indeed
there may be occasions when not only students but also the prac-
tising lawyer will be taken out of his depth. It is on the whole
anything but an impersonal book but that is not a criticism. It may
mean, however, that it will take longer to gain its proper place for
too many in the professsion are interested only in collecting bare
necessities without regard to how they are derived.

F. MacRitchie,

Professor of Conveyancing,

University of Aberdeen.

CASE and COMMENT