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A Mixed Legal System in TransitionT. B. Smith and the Progress of Scots Law$
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Elspeth Reid and David Carey Miller

Print publication date: 2005

Print ISBN-13: 9780748623358

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748623358.001.0001

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Glory with Gloag or the Stake with Stair? T B Smith and the Scots Law of Contract

Glory with Gloag or the Stake with Stair? T B Smith and the Scots Law of Contract

(p.138) 7 Glory with Gloag or the Stake with Stair? T B Smith and the Scots Law of Contract
A Mixed Legal System in Transition

Hector L MacQueen

Edinburgh University Press

This chapter assesses T B Smith's work on contract law and discusses its impact upon the development of the subject in Scotland. It does so by first describing what appeared to be the general state of the law when Smith entered the academic arena at Aberdeen in 1949, and then considering those parts of it which Smith made the subject of special study in the 1950s. It argues that he was driven primarily by two concerns. One was to refute the view, certainly current in the early 1950s, that the Scots law of contract was scarcely different in any significant respect from its English counterpart. The other concern was to press an argument that, in the areas where difference was particularly apparent, the Scots law provided solutions to well-known and much criticised limitations of English contract law, the requirement of consideration, and the doctrine of privity. Further, properly understood, the Scottish rules on error in contract provided a more satisfactory approach than did the English law of mistake and misrepresentation, also the subject of great controversy in the 1950s.

Keywords:   Scots contract law, English contract law, consideration, doctrine of privity, contract error

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