Was the Scots Common Law underlying contracts of sale unified in regard to the implied warranty of soundness?

Abstract

The thesis explores whether, prior to the nineteenth century regime of legislative intervention which anglicised the law relating to contracts of sale for goods, the Scots common law underlying contracts of sale developed in a unitary fashion. Did the same principles apply regardless of whether the subject of the sale was corporeal moveable, corporeal immoveable or incorporeal? This question is analysed through a case study of the common law contractual implied warranty of soundness, and its application to the three types of property mentioned above. While this study does not provide a definitive answer on its own, it does give us a preliminary indication as to whether the law was unified or not. The thesis relies primarily on Scots case law and academic writings, employing historical and doctrinal methodologies. The study is supplemented by comparative law from France, Germany, South Africa and England. Roman law, and the works certain Ius Commune writers, are also referenced. The thesis can be divided into four parts. The first part explores whether academic texts on the contract of sale dating prior to the legislative intervention took a unified approach in their discussion. This establishes whether scholars from this period viewed the contract of sale as unified; and aids the analysis in subsequent chapters. The second part examines the warranty’s substantive framework in the context of its development, in the eighteenth and nineteenth centuries, through case law featuring corporeal moveable property. The third part looks at the warranty’s use in contracts of sale for corporeal immoveable property. Here, I establish that: 1) there was no consensus as to whether or not the warranty applied to this type of property; and 2) the warranty was not utilised by buyers of this type of property in practice. I identify a combination of factors which prevented buyers of latently defective corporeal immoveable property from invoking the warranty. The final part of the thesis examines the warranty’s actual and theoretical application to contracts of sale for incorporeal property. It establishes that the warranty would be relevant to some, but not all, types of incorporeal property.