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Pragmatism, precepts and precedents: Commercial law and legal history

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Original languageEnglish
Title of host publicationContinuity, Change and Pragmatism in the Law
Subtitle of host publicationEssays in Honour of Professor Angelo Forte
EditorsAndrew Simpson, Scott Styles, Adelyn Wilson, Euan West
Place of PublicationAberdeen
PublisherAberdeen University Press
Chapter2
Pages10-42
Number of pages33
ISBN (Print)9781857520392
DOIs
Publication statusPublished - 15 Dec 2016

Abstract

This study in honour of the late Angelo Forte begins with his work on the history of the development of commercial law in Scotland. It starts from the observation that his evidence base needs to be expanded so that his conclusions can be tested more widely. While he focused on insurance and bills of exchange, and these are obviously important commercial subjects, they are perhaps not at the absolute heart of commercial law. Instead it is suggested that the core of the subject is the law of sale and that nearly everything else in commerce revolves around sales. It is also an important point that bills of exchange and insurance were unknown to Roman law and (especially insurance) were relatively modern developments in 1700. The question of where these two subjects fitted into the Roman structure of contracts which Scots law certainly had received by Stair’s time was one of the difficult questions of the late seventeenth and eighteenth centuries in Scotland. A further line of enquiry is what was happening in the eighteenth and early nineteenth centuries to the many other mercantile contracts in Scots law, notably sale and hire (location). Similar kinds of shift and conflict between the established Scottish common law and mercantile custom or the law merchant are apparent in these areas too. The argument takes a little further Fortes basic point that in mercantile matters Scots law was developed through understandings of a ius gentium and a law merchant for which the most readily available (but not the only) evidence was the decisions of the English courts; a development which however became, despite resistance, a recognition of those decisions as authorities rather than simply evidence of some wider general norms.

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