Some comparative aspects of specific implement in Scots law
Smith, Alastair David
The Scots law of specific implement of contracts may usefully be compared with the South African law on the specific performance of contracts. Both systems have been influenced by the Anglo-American law of specific performance. The introduction to the thesis suggests a redefinition of specific implement. Part I sketches the history of specific implement, and also the history of the remedy in Roman and Roman-Dutch law. Part II discusses the modern law on the general right to the remedy in Scots and South African law, and the court's discretion to refuse the remedy on good grounds. The grounds of employment contracts and the impossibility of enforcing the decree of specific implement are examined; revisions are suggested in the light of modern circumstances. Part III concentrates on the Scots remedy in the sale of goods. A study of the English legal history behind section 52 of the Sale of Goods Act 1979 permits comparison of Scots law with that of France and other countries as regards the idea that property may pass by contract. An esto argument, if property should pass by delivery, compares Scots law with that of West Germany, Switzerland, and South Africa. The final chapter discusses the economic theory of specific performance.