3. Northern Cross

(a) Civil Law and Common Law in Scotland

A parallel project exploring the doctrinal history of the Scots law of obligations and property is on its way at the moment.^[464] Like South African law Scots law has developed, since its inception, without codificatory intervention.^[465] While the accession of King David I to the Scottish throne in 1124 initially thrust Anglo-Norman feudal law on the Scots,^[466] the struggle over the succession to the Maid of Norway al the end of the thirteenth century, and the wars of independence which led to a Scottish victory at Bannockburn, created a strong and lasting feeling of antagonism towards the English.

This resulted in the Auld Alliance with France^[467] and an orientation towards continental Europe. Connected with these was a gradual reception of the learned laws as they were taught at the European universities, which turned Scotland into a far-flung province of the ins commune.^[468] In the same way that Grotius' Inleidinge laid down Roman- Dutch law in the mid-seventeenth century, Viscount Stair's Institutions some fifty years later in 1681 constituted Roman- Scotch law.^[469] ^{^[470] Stair was in turn followed by a series of institutional writers²⁶³ and the eighteenth century was a flowering time for Scottish legal culture which lasted far into the first half of the nineteenth century. The law courses at the universities of Glasgow and Edinburgh flourished; Regius chairs for public law, natural law, and public international law (Edinburgh) and civil law (Glasgow) were created in both places. Lord Kames, David Hume, Adam Smith, and John Millar were among the most famous jurists and philosophers of the Scottish Enlightenment. In the second half of the nineteenth century, however, Scotland became by comparison a somewhat backward province of the United Kingdom, and the level of the native legal culture, and legal education, descended to an equally low level.
Stair's legal successors no longer went on the grand tour to France or Holland,^[471] but to the Inns of Court in London. After the industrial revolution, England offered more attractive career possibilities due to its extended trade empire. As England's prestige grew, so did that of the common law. Its influence in Scotland became increasingly perceptible, as long as legal disputes ventured beyond the mosses and muirs of the Scottish highlands. As in South Africa, a backlash occurred towards the middle of this century against what was perceived to be an English intrusion. Vigorous debates took place about the proper sources and the true nature of Scots private law and also about the way in which it had developed.²⁷⁰ The relative importance of civil law and common law has been, and to some extent remains, a matter of keen controversy.²⁷¹ As a result of these debates, however, scholars became aware of the distinctiveness of the Scottish legal tradition, a tradition shaped by two equally fascinating and complex processes of reception, first of the civil law and later of the common law. Only about half a century ago, the institutional foundations were laid for a modern, genuinely Scottish legal culture, conforming to contemporary academic standards. The study of law was transformed into a full- time course, and the universities thus took over the reins of legal education from the professional bodies.²⁷² In the recent version of the same article, see H. de Ridder-Symoens and J. M. Fletcher (eds.), Academic Relations between the Low Countries and the British Isles 1450-1700 (1989) 25 if.); John W. Cairns, 'Importing our Lawyers from Holland: Netherlands Influences on Scots Law and Lawyers in the Eighteenth Century', in Grant G. Simpson (ed.), Scotland and the Low Countries 1124—1994 (1996), 136 ff.
^27,1 T. B. Smith, A Short Commentary on the low of Scotland (1962); idem, Studies Critical and Comparative (1962); Lord Cooper of Culross, The Scottish Legal Tradition, reprinted in The Scottish Legal Tradition (1991), 65 ff.
^2/1 See, e.g., Robin Evans-Jones, 'Civil l aw in the Scottish legal Tradition', in idem (ed.). The Civil low Tradition in Scotland (1995), 3 ff.; Niall R. Whitty, 'The Civilian Tradition and Debates on Scots Law', 1996 Tydskrif vir die Suid-Afrikaanse Reg 227 ff., 442 ff.; Alan Rodger, 'The Use of the Civil Law in Scottish Courts', in Carey Miller and Zimmermann (n. 3) 225(1'.; Hector L. MacQueen, ‘Mixture or Muddle?: Teaching and Research in Scottish Legal History', (1997) 5 ZEuP 368 ff.; Robin Evans-Jones, 'Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law', (1998) 114 LQR 228 if.; idem, 'Roman Law in Scotland and England and the Development of one Law for Britain', (1999) 115 LQR 605 ff.
²⁷² See David M. Walker, 'Legal Education in Scotland 1889-1988', 1988 Juridical Review 184 ff.
process a body of legal literature has evolved²⁷³ and become further important evidence of the new vitality of Scots law.²⁷⁴
Like its Roman-Dutch counterpart in South Africa, the modern Scots law of obligations shares a number of characteristic features with other civilian legal systems: it recognizes contracts in favour of third parties,^[472] it accepts an order for specific performance ('specific implement') as the primary right of a creditor,^[473] ⁶ and it does not have a doctrine of consideration.^[474] But we also find at least an equal number of rules and legal institutions that Scots law has in common with, i.e. usually borrowed from, English law: an essentially unified concept of breach of contract,^[475] breach of contract by repudiation,^[476] or the doctrine of the unidentified principal in the law of agency.^[477] Hector MacQueen has drawn attention to the fact that in all these cases Scots law has anticipated the position eventually adopted by the European Contract Law Commission.^[478] Again, I think, it will be most illuminating to see how Scots law has arrived, in the course of its historical development, at these solutions; how, in other words, it has arrived at its present position at the crossroads between civil law and common law and whether it contains experiences which may be of interest for the new ins commune. Presently, 1 can merely give one example: the notion of a unilateral promise.
(b) Unilateral Promise²³²
Hugo Grotius, in his immensely influential work De jure belli ac pads, had accepted the (unilateral) promise as the cornerstone of contractual doctrine.^[479] ^{^[480] This was a heritage of scholastic moral theology, where the binding nature of both the promissory oath and the simple promise had been emphasized:^[481] breach of faith displeases God and is a sinful deviation from the precepts of honesty and truthfulness. Grotius blended this tradition with man's natural freedom to act or not to act in a specific manner. A binding promise thus has the effect of an 'alienatio particulae cuius- dam nostrae libertatis';^[482] and such an alienation can ultimately find its legitimation only in the fact that it has been willed by the alienor. On the other hand, however, in order to be enforceable, the will to be bound has to find some external manifestation and there has to be an 'acceptatio' on the part of the promisee.^[483] Thus, according to Grotius, the unilateral promise as such does not create a right to sue in the person of the promisee: 'jus proprium alteri non dat/^[484]' This view quickly gained ascendancy among the Natural lawyers;^[485] via Pufendorf and Pothier it also found its way into English law.^[486] Pothier, as usual, stated the conceptual distinctions most clearly. A contract includes the concurrence of intention in two parties, one of whom promises something to the other who, in turn, accepts such promise. A pollicitatio, on the other hand, is a promise not yet accepted by the person to whom it is made.^[487] '(Ajux termes du pur droit natural', it does not produce, without such acceptance, what can properly be called an obligation.^[488]}
This exposition (based as it was on Ulp. D. 50,12, 3 pr.^[489]) became the basis of the English doctrine of offer and acceptance.^[490] A pollicitatio is 'a promise made but not accepted';^[491] but only an accepted promise can give rise to a (contractual) obligation.
As a result, promises of a reward,^[492] or an advertisement promising to pay £100 to any user of a carbolic smoke ball who caught influenza,^[493] presented special problems of analysis. The courts tried to squeeze their decisions into the new doctrinal straitjacket and declared that the reward could be claimed only on the basis of a 'unilateral contract'. Like all contracts, it required the exchange of offer and acceptance. Consequently, the promise had to be taken to constitute an offer (ad incertas personas), which the person claiming the promised money accepts by performing the act specified. This, of course, he can only do if he has known about the offer. Thus, on the one hand, we have the somewhat strained construction of an acceptance which need not be communicated to the offeror.²⁹' On the other hand, 'it is hard to see what prejudice the offeror would suffer if he had to pay the reward to someone who had complied with the terms of the offer without being aware of it. The reasons for holding that there is no contract in such a case seem to be largely doctrinal.'^[494] ^{^[495] Interestingly, the common law has been more rigid and blinkered by civil law doctrine than some of the modern civilian systems themselves. In the German Civil Code, for instance, special provision is made for the promise, by way of public notice, of 'a reward for the performance of an act, in particular for the production of a result'.^[496] ^{^[497] ^[498] ^[499] It is known as Auslobung, a unilateral act which need not be accepted. The Code endorsed a view propounded by a number of pandec- tist scholars:’⁰⁰ a view for which there are but the faintest traces in the Roman sources.³⁴” Scotland alone did not have to rediscover the possibility of a unilaterally binding promise. Unencumbered by both the doctrine of consideration and a dogmatic adherence to contemporary Natural law contract theory, Viscount Stair distinguished between contract, which becomes binding as the result of an 'acceptance' following on an offer, and promise pure and simple which is 'now commonly held obligatory'.³⁴’² This is clearly based on Canon law³⁰³ and it differs, as Stair himself acknowledges, from the view propounded by Grotius.}
Stair's views on stipulatio alteri (ins quaesitum tertio), incidentally, are a direct consequence of his treatment of promise: the third party acquires a right to sue even if he is 'neither present nor accepting'.³⁰⁴ Again, this was contrary to Grotius' conception according to which an acceptance is required on the part of the third party.³⁰³ 'Later writers lacked Stair's clarity of analysis', says David Sellar,³⁰⁶ 'and added little but confusion to this area of the law.' Carlill v. Carbolic Smoke Ball Co. offered the prospect of an alternative analysis. And the Requirement of Writing Act 1995 added a new dimension to the existing confusion.³⁰' Yet, at the same time, the doctrine of promise as expounded by Stair has survived and it remains useful, not only as far as the analysis of promises for a reward is concerned.³⁰⁸ Thus, most recently, the Principles of European Contract Law state quite simply: 'A promise which is intended to be legally binding without acceptance is binding.'³⁰⁹}}

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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

3. Northern Cross

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