C 8. 55. 8, which reproduces CTh 8.13. 3, is not an entirely straightforward text:

It provides that where a patron without filii has made a gift of all or part of his goods to his freedmen and subsequently has children the gift reverts to him and remains at his disposal. But one may ask, for example, whether the masculine filios is significant or whether the masculine includes the feminine? Whether a single thing could be “part of his goods”? Whether ownership reverts automatically or whether the text means that the gift is freely revocable? Nevertheless, in one respect, at least, it seems quite simple. There can be little doubt that its provisions were restricted to gifts between patrons and freedmen and since the discovery of the Vatican Fragments, Vat Fragm 272, a fuller version of C 8.55.1, has been regarded as establishing this restriction for the Roman law of the time of its promulgation and for the law of Justinian.

Since the critical studies of the texts on what is generally described as depositum irregulare made by J C Naber and G Longo and published in 1906 it has been impossible to argue that the relevant texts are wholly classical. Opinions have differed on whether the proper conclusion to draw from the contradictions, real and apparent, and the signs of interpolation in the texts is that depositum irregulare is wholly a creation of the Compilers or is that it had some classical basis but was extended in scope and modified in its rules when it was incorporated into the law of Justinian. The full and careful account of depositum irregulare and of the state of opinion given by W Litewski makes it unnecessary to enter into details. It is sufficient to say that most shades of opinion have found some support and the preponderance of modern views favours some classical recognition. What follows is not a full re-examination of depositum irregulare but a few observations on it in the light of the discussions which have taken place.

The first observation is that it seems rather doubtful whether it is wise to speak of depositum irregulare as an institution or a “figura giuridica” or the like. This suggests that depositum irregulare was more clearly defined than seems to be the case even in Justinian's law, which did recognise something which has been given that name by later commentators.

INTRODUCTION

The title of this essay carries certain implications, in particular that there is something which can be identified as Roman law and that Roman law did exercise influence both in England and in Scotland. It is implied, furthermore, that it is worthwhile to make a comparison between these two countries and jurisdictions in this respect. The question of what is meant by Roman law is somewhat more complicated than might at first appear and more is said on this below. So far as comparison is concerned, on a simplistic view it might seem that there is little or no scope for that process. England is the mother country of the Common Law and English lawyers are proud of that remarkable system and have been unwilling to concede that it has owed anything to outside influence, least of all to the Civil Law. Scotland, on the other hand, has participated in the Civilian tradition and Scots lawyers, we are told, are equally proud of belonging to that tradition and not anxious to see Scots law affected or further affected by an influence from the Common Law which has at times been baneful. English law and Scots law are, therefore, in different families or camps - and “camps”, with its military connotations, might seem the better metaphor considering the vigour with which the debate on the respective merits of the Common Law and the Civil Law has often been conducted. This would lead to contrast rather than comparison.

BOOKS

European Legal History. Sources and Institutions, with O F Robinson and T D Fergus (3rd edn, Butterworths, London, Dublin, Edinburgh, 2000).

Scottish Land Law (2nd edn, Scottish Universities Law Institute Ltd; W Green, Edinburgh, 1999).

European Legal History. Sources and Institutions, with O F Robinson and T D Fergus (2nd edn, Butterworths, London, Dublin, Edinburgh, 1994).

Public Access to the Countryside. A Guide to the Law, Practice and Procedure in Scotland, with J Rowan Robinson and C T Reid (Scottish Natural Heritage, Edinburgh, 1993).

Miscellany Three (ed) (Stair Society, vol 39, Edinburgh, 1992).

Legal History in the Making. Proceedings of the Ninth British Legal History Conference, Glasgow, 1989, with T D Fergus (eds) (Hambledon Press, London and Rio Grande, 1991).

Scottish Land Law (Scottish Universities Law Institute; W Green, Edinburgh, 1989).

The Institutes of Gaius, translation with introduction and vocabulary, with O F Robinson (Duckworth, London, 1988). An Introduction to European Legal History, with O F Robinson and T D Fergus (Professional Books, Abingdon, 1985). Studies in the Transfer of Property by Traditio (Aberdeen University Studies, 151, Aberdeen University Press, 1970).

CONTRIBUTIONS TO BOOKS

“Servitudes and real burdens” (with M J de Waal), in R Zimmermann, D Visser and K G C Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (Oxford University Press, 2004), 735-757.

It has long been disputed whether in classical Roman law constitutum possessorium was recognised as a means of transferring possession and ownership. Many authors have held that, at best, it was recognised where the constituens was the procurator omnium bonorum of the acquirer but that the texts which give it general recognition are the work of the Compilers. Others have held that it was classical, while one or two have taken up an intermediate position. Riccobono held that it was rejected by the majority of the classical writers but widely used in practice and Pflüger that it could be used in all cases except where the transfer was donationis causa, the exclusion in this case resting on the lex Cincia:

The main arguments against its classicality are three in number:

1. (a) it conflicts with the rule traditionibus non nudis pactis dominia rerum transferuntur because constitutum possessorium is essentially a mere agreement;

2. (b) it is a case of acquisition by representative and in classical law the only free representative through whom one could acquire possession was a procurator omnium bonorum, so that constitutum possessorium can only be valid in classical law if the constituens is such a procurator; and

3. (c) the textual evidence for it is slight.

It is a commonplace that Roman law has no fully developed law of agency, particularly in the field of obligations. This seems generally to be regarded as a defect in the law arising from a lack of vision or an inability to overcome completely a rather primitive traditional rule, which prevents third parties from gaining the benefit of or being bound by the acts of others. Thus even the assertion of the fact that Roman law did not in principle accept agency in the modern sense carries something of a criticism of the law, and more or less veiled criticism of the absence of a developed law of agency appears in many treatments of the subject of agency in Roman law. Thus Thomas says of mandate that it “was the nearest approach that Roman law made towards the modern concept of agency; but it was a very imperfect form of agency”. Kaser refers to the ancient principle found in all peoples that a legal act produces effects only on the person taking part in it, and observes that the Romans adhered to this principle even in later times and extended it to informal acts from the formal acts in which its roots lay. He also comments that the idea that the acts of a party to a legal transaction can produce immediate effects on persons not involved in that transaction assumes a high degree of juristic abstraction and in its modern form is a conquest of modern times.

The fact that Cinus made much use of the work of Pierre de Belleperche is well known. In the beginning of his commentary on the Code he tells us:

and, although Savigny exaggerates somewhat in identifying the “moderni Doctores” with Pierre de Belleperche and Jacques de Révigny, it is clear that Cinus cited them more frequently than others and hence himself acknowledged a considerable debt to the former. What is not so clear is the extent of the debt. On this conflicting views have been expressed and it is the aim of this article to make some contribution to the discussion through a detailed examination of Cinus's commentary on one title of the Code, namely, 3.33 - de usufructu et habitatione et ministerio servorum. While no definitive results can be claimed on the basis of the examination of one title the examination provides a starting point for the further detailed researches which are required.

The Institutions of the Law of Scotland which were written by Viscount Stair over a period as yet undetermined but were first published by him in 1681, have a place in the history of Scots law which can be compared with that of Grotius's Inleidinge tot de Hollandsche Rechts-geleerdheid in the history of Dutch (and Roman-Dutch) law. Whether Stair knew or used this earlier work has never been conclusively established, but one result of the present study is to confirm the suggestion of Professor Feenstra that he may have used it at second hand through Vinnius's commentary on the Institutes of Justinian. What is not in doubt is that Stair used Grotius's De jure belli ac pacis and another result of the study is to show that he used that more than he openly acknowledges. It also emerges that Stair used Gudelinus's De jure novissimo more fully than appears from the express citations and that he seems to take other citations of authorities at second hand. In this matter and in other respects the study raises questions rather than answers them but it may point the way to further discoveries by application of the same method.

When commenting on Inst IV.5.I, in his admirable modern edition of Justinian's Institutes, Professor Thomas observes a discreet neutrality on the question of the basis of liability in the actio de posito aut suspenso. Like Buckland1 he simply says that liability followed similar principles to those of the actio de effusis vel deiectis with which the actio de posito is linked both in the Institutes and in the praetor's edict. But his references in footnotes to articles by Watson, Birks and myself reveal that, as one would expect, he was fully aware of differences of opinion on whether the defender in the actio de posito aut suspenso has to be aware that something was placed or suspended from the building in question in order to incur the edictal penalty. His own enjoyment of friendly controversy together with the fact that the Institutes' text referred to contributes to the differences of opinion made it seem appropriate to pursue the question in a tribute to him in which the Institutes of Justinian were to form a common theme.

It may be said at once that the result of the pursuit has not been altogether satisfactory. It reminds one of a story told of that great character of the Scottish bar, Condie Sandeman KC. He was arguing a complex case on appeal before the Inner House of the Court of Session and at the end of his long and intricate exposition one of the judges said to him, “You know, Mr Sandeman, after all that you have said I am really none the wiser.”

Scots law is commonly described as a “mixed” system of law. It is increasingly recognised that all systems are probably mixed in some degree but certain mixes have a particular interest because they involve some of the great families of legal systems which can be identified among the world's legal systems. The mixture referred to in the case of Scots law is a mixture of English common law and the Civil Law both of which have had widespread influence. It is clear that both of these systems have contributed to what has become modern Scots law. The question is how much each has contributed and how far one can speak of a reception of the Civil Law in Scotland. On this opinions differ and the question has not always been debated with total scientific objectivity. In any country the law is part of the national identity and Scots private law was deliberately retained as a separate system when Scotland and England finally were united into the new kingdom of Great Britain in 1707 with a single new monarchy and a single new parliament. In comparative terms at least the Scots law that was retained was noticeably more Civilian than the contemporary English law and so subsequent English influence could be seen as an encroachment on the identity of Scots law.

The Halliday Report, Conveyancing Legislation and Practice, has been the immediate source of most of the radical changes in Scottish land law which have taken place in recent years. Not many twenty-year-olds can claim to have achieved so much by way of construction, destruction and reconstruction and for this tribute to the chairman of the committee which produced a report which has been so fertile in the creation of new law it is fitting to choose for discussion one of the important innovations to which it led. Variation and discharge of land obligations by a tribunal is one of these innovations but, although it is something new for Scots law, it has a long history in English law. The purpose of this paper is to see to what extent the report drew on existing legislation for its scheme, to look at the history of the English provisions and to consider how successfully the scheme of the report was translated into legislation. It is suggested that in some respects the translation was less successful than it might have been had there not been English legislation to copy. It also appears that the general difficulty of keeping Scottish and English legislation in step when the legislation has to apply within two different legal systems has been exacerbated in this instance by the fact that English law has itself been undergoing change.

In the law of property, discrimination is most likely to affect the capacity to hold property, the capacity to acquire it or the capacity to dispose of it, The law of succession is relevant both to acquisition and disposal and may contain discriminatory rules to the advantage or disadvantage of the male or the female. To modern eyes at least, there is no obvious reason why gender should be relevant either to the law of property or to the law of succession, Male and female are equally capable of using and enjoying property and equally have needs and desires which can be satisfied by having property and control over it. They should therefore be treated alike by the law and have the same capacity to hold, acquire and dispose of it. Similarly they should have equal rights in the law of succession, as succession may be an important source of acquisition of property and there is no good reason for making a distinction between male and female in this area of the law. If male and female should be treated alike it can be argued that it should be irrelevant whether that male and female are married to one another. In case of marriage each should retain his or her own property with full powers of acquisition and disposal, unless of course any property is shared by agreement.

Few topics have attracted more attention in the literature of Roman law than the iusta causa of traditio. The traces of discussion among the Roman jurists found in the famous, or notorious, conflict between D 12.1.18pr and D 41.1.36 indicate that there was room for differences of opinion among them. The conflict itself has provided scope for apparently endless discussion among Romanists, and succeeding generations have sought a solution to what on the evidence of the attempts made since the time of the Glossators, appears to be an insoluble problem. As Oxford has been said to be a home of lost causes, it may be thought peculiarly appropriate to dedicate to a distinguished Oxford Romanist an essay which seeks to offer new perspectives on the iusta causa of traditio. Bold or foolhardy as the essay may be, it is offered with deep respect to a scholar who has guided the footsteps of novices and given enlightenment to more experienced Civilians.

Two observations have prompted the present examination of the iusta causa in traditio. One arises from a consideration of Scots law, and the other from a consideration of the Roman law which, in this matter, Scots law purports to follow. The first observation is that, although Scots law in general follows Roman law in the matter of transfer of property by delivery, iusta causa does not appear to have created the problems which it has for Romanists.