Vassals No More: Feudalism and Post-feudalism in Scotland

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Abstract

At the very time when the feudal system of land tenure was being abolished in France, and elsewhere in Europe, it was enjoying an unexpected revival in Scotland as a means of controlling urban development. Land which was sold under the feudal system could be subjected to permanent conditions, known as “real burdens”, which regulated its future use; and in this way planning control was achieved by a mechanism of private law. Real burdens could (and can) also be used in a non-feudal context, in which case they resemble praedial servitudes. But, unlike servitudes, real burdens can impose affirmative obligations, such as an obligation to construct and maintain a building. Today Scotland is one of the last jurisdictions in the world to have an operational feudal system. That will shortly change. Legislation passed in 2000 abolishes the feudal system with effect from 28 November 2004. At the same time the law of real burdens is reformed and codified. The continued existence, and importance, of real burdens was the greatest obstacle to feudal abolition. For if feudal lords (“superiors”) were to disappear, who was to enforce the burdens? The legislation tackles the difficulty with various improvisations, in some cases reallocating enforcement rights to neighbours (including former superiors), and in others allowing the burdens to lapse altogether. Affirmative burdens will be a permanent legacy of the feudal era, but in other respects its continuing influence on land law is likely to be slight.
Original languageEnglish
Pages (from-to)282-300
Number of pages22
JournalEuropean Review of Private Law
Volume11
Issue number3
Publication statusPublished - 2003

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