Comparative And Historical Essays In Scots Law

Comparative And Historical Essays In Scots Law-48
a dispute between a tenant who operated a lodging house and his landlord who set up a rival lodging house next door, the tenant brought an action against the landlord on the grounds that he was acting in violation of the good faith of the contract.Although abuse might have been identified in a Civilian jurisdiction, the Scots court took strongly against recognising any restraint 'inconsistent with the free exercise of proprietary rights'., while not to be discounted, was a marginal doctrine, and the complex balancing of interests required for this private law form of proportionality were highly dependent on given passing consideration only and malice is not in issue: for example, a neighbour objects to a particular type of land use, and the defender responds to the effect that an owner may do what he likes with his property except where he acts .

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Bankton then drew a distinction between actions which cause direct damage to a neighbour and those which only 'deprive of a benefit': 'There is a great difference between one's suffering damage, and his being precluded from a benefit or conveniency which he was formerly using.' While direct damage was generally actionable, actions which merely deprived of a benefit were not, and that expressly included operations which obstruct a neighbour's light or prospect. act wantonly, with the mere purpose of producing inconvenience and loss to his neighbour but these are all terms which have caused considerable controversy and voluminous discussion in the literature on the Civilian abuse of rights doctrine.

Kames also drew a distinction between actions which caused direct harm to neighbours (which were not permitted and to which malice was not particularly relevant - or relevant presumably only as an exacerbating factor) and those which caused consequential damage. In order to understand what malice meant, and the level of intention required before the landowner was stopped from doing what he chose with his property, the case-law from the same period must be examined.

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Readers are reminded that this work is protected by copyright. we in Scotland have gone a-whoring after some very strange gods.' This colourful assertion was made by one of Scotland's most distinguished twentieth-century jurists and comparative lawyers, Sir Thomas Smith, in his inaugural lecture at the University of Edinburgh in 1958.

But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or injury to the legal rights of his neighbour . No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. The existence of public law controls curbing antisocial developments means that modern cases are much rarer than during the era of rapid industrialisation and urbanisation, but from time to time English litigants are still reminded that there is no absolute rule of law which prevents landowners from using their land in a way which injures a neighbour. take into account motive as constituting an element of civil wrong . There then followed a string of further English tort cases involving interference with employment contracts, in which the courts unhesitatingly took up an 'abstentionist' stance, steering clear of any kind of regulatory role over unfair trade practices, even where the actions complained of were patently unfair.

(involving a trades union dispute where one group of workers effectively induced an employer to sack another, smaller group of workers), the unfaltering Lord Watson could be found declaring that 'the law of England does not . to refuse the claim of an unemployed ironworker against the employers' insurance organisation which had effectively put him on to an employers' blacklist.

All of the writers, while conceding that consequential damage was normally not actionable, qualified this general rule to the effect that even consequential damage was not to be tolerated in the presence of malice or envy.] is where something has been done, which, though disagreeable, or even prejudicial to a neighbour, yet does not directly encroach upon, or destroy any part of his property'. ' was in fairly frequent use, as a means of establishing a form of private law proportionality in disputes between individuals.

Erskine gave the specific example of a proprietor draining off excessive amounts from a watercourse simply to throw them away and deprive a neighbour, The Scots position was summarised in the nineteenth century by Bell to the effect that 'no one . The first appearance of the term is commonly attributed to a line of cases concerning fairs or markets in the early seventeenth century.

The issue here is whether the mechanisms used to restrict the ambit of this rule, and the degree to which this is achieved, are in some way distinctive to either Common or Civil Law.

It is interesting to note that Bankton, writing in the mid-eighteenth century in his 'Observations on the Law Of England' appended to the books of his , commented on English law to the effect that 'if an ancient watercourse goes to one's mill or house for his use, his neighbour cannot divert it, tho' upon his own ground, from taking the former course; and if he does, action upon the case will lie at the suit of the owner of such mill or house, this being to his damage'.


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