Fraud and voidable transfer : Scots law in European context
MacLeod, John Alasdair
This thesis examines fraud as a basis for the voidability of transfers in Scots law. In particular, it focuses on misrepresentation and fraud on creditors. In so doing, an attempt is made to provide a principled account of the effect of fraud on transfer which can explain the well-established rules in this area, show how these rules fit within the broader framework of private law and provide some guidance as to the appropriate result in cases where a rule is not clearly established. This account depends on examining the development of the law from a historical and comparative perspective, with particular emphasis on the periods during which the relevant rules and institutions were being developed or received in Scotland and on the links between this process and the wider ius commune tradition. The central contention is that avoidance of a transfer on the basis of fraud is justified by a personal right held by the party at whose instance the avoidance takes place. In the core cases, this personal right is a right to reparation for a wrong for which the transferee is liable. At the periphery, the personal right may arise from the law of unjustified enrichment rather than from the law of delict. This characterisation of the basis of avoidance explains the protection afforded to subsequent acquirers and the limited effect which avoidance has in certain circumstances. It shows the interaction between the law of property and the law of obligations in this area and enables principles developed in the context of one instance of fraud on creditors to be applied to difficult problems in relation to other instances.