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Roman Law, Scots Law and Legal HistorySelected Essays$
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William Gordon

Print publication date: 2007

Print ISBN-13: 9780748625161

Published to Edinburgh Scholarship Online: September 2012

DOI: 10.3366/edinburgh/9780748625161.001.0001

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Servitudes. Scots Law and Roman Law☼

Servitudes. Scots Law and Roman Law☼

(p.141) 12 Servitudes. Scots Law and Roman Law
Roman Law, Scots Law and Legal History

William M Gordon

Edinburgh University Press

Scots law has largely adopted the Roman law of servitudes although rights in the nature of servitudes were known before there was any extensive reception of Roman law and the older Scots law was prepared to include thirlage to a mill despite its requiring positive action. Servitudes have, however, created problems because they conflict with the general rule that real burdens should appear in the titles of the burdened property. This has created difficulty over the recognition of new servitudes but reform of the law has allowed greater scope for new servitudes if they do appear in titles. However only positive servitudes are now in general recognised and an unresolved problem is the precise meaning of the praedial benefit required for their recognition.

Keywords:   Servitudes, New servitudes, Praedial benefit, Thirlage

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