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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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Roman Quasi-delicts and Scots Law☼

Roman Quasi-delicts and Scots Law☼

Chapter:
(p.148) 13 Roman Quasi-delicts and Scots Law
Source:
Roman Law, Scots Law and Legal History
Author(s):

William M Gordon

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748625161.003.0013

Roman quasi-delicts were penal actions generally involving strict liability but their penal nature has not always been recognised in discussion of their possible reception into Scots law. Scots quasi-delict now refers to liability for fault and the question has arisen whether Scots law recognises any of the Roman cases such as the actio de effusis vel deiectis or the actio de positis vel suspensis. Rejected in a sheriff court case, the former has now been accepted in a recent case, albeit obiter, on the authority of Bankton and David Hume. However the acceptance is as actions adapted to Scots law and based on negligence. It is unclear whether there is scope for strict liability in the circumstances envisaged by the Roman law but it is clear that the issue should be debated in the light of the later development of the Civil law.

Keywords:   Quasi-delict, Actio de effusis vel deiectis, Actio de positis vel suspensis, Bankton, David Hume, Strict liability

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