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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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PRINTED FROM EDINBURGH SCHOLARSHIP ONLINE (www.edinburgh.universitypressscholarship.com). (c) Copyright Edinburgh University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in ESO for personal use.date: 18 September 2021

Risk in Sale – From Roman to Scots Law☼

Risk in Sale – From Roman to Scots Law☼

(p.164) 14 Risk in Sale – From Roman to Scots Law
Roman Law, Scots Law and Legal History

William M Gordon

Edinburgh University Press

The rules on risk in sale have had a chequered career in Scots law. Early evidence suggests that Scots law did not accept the Roman rule that risk passes on conclusion of the contract. Stair has regard to Roman law but does not follow it completely, making an exception for total destruction of the subject matter. Full acceptance of the Roman rule in sale of movables is found only in the 18th century but eventually in the Sale of Goods Act 1893 Scots law is assimilated to English law in the interests of uniformity. Risk now passes with property, which in turn passes when intended by the parties and not by delivery. In the sale of land the rule that risk passes on conclusion of the contract was settled only by the Sloans Dairies case in the 1970s, where Roman law was used as authority but apparently without full understanding of the sources. The rule is not, however, altogether suitable for sale of land and is commonly altered by contract.

Keywords:   Sale, Risk in sale, Roman law, Reception, English law

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