This contribution describes the Scottish legislative response to the coronavirus pandemic, noting that the chief impact on contracts is most likely to arise from issues of the supervening illegality of particular kinds of activity normally carried out under contracts. Scottish law largely follows English law in its doctrine of frustration and its approach to force majeure clauses. This contribution accordingly suggests that the temporary interruptions to performance which the coronavirus legislation brings about may not be sufficient to discharge affected contracts. The Scottish courts may need rather to develop their very limited powers of equitable adjustment in response to changed but not necessarily frustrating circumstances. Some ways in which this might be done are suggested.

SOME SCENE-SETTING

A little scene-setting is necessary at the start. As a legal jurisdiction Scotland, although part of the United Kingdom for more than three centuries, has remained what it was before that union, a legal system and law wholly distinct from that of England and Wales and, indeed, what is now Northern Ireland. While much law enacted by the United Kingdom Parliament has applied throughout the united territories (notably in taxation, welfare and commercial law), the situation is complicated by the variable systems of administrative and legislative devolution in Scotland, Wales and Northern Ireland. It is worth noting that there is no devolution of any kind to or within England; the United Kingdom is not a federation. The fundamental principle of Scottish devolution is that everything is devolved unless specifically reserved to the United Kingdom Government and Parliament. Amongst many other things, this means that Scottish private law and public health in Scotland are devolved matters, but not commercial law (which for present purposes includes consumer law). Thus, for example, the Corporate Insolvency and Governance Act 2020, which gives some important protection from creditors and other reliefs from the requirements of company law for companies in difficulty thanks to the pandemic, is a United Kingdom Act that applies to the whole country.

This background has been highlighted because it explains the sometimes-misunderstood role taken by the devolved Scottish Government in responding, first, to the threat, and then to the reality of the coronavirus pandemic in Scotland in the first half of 2020. Devolution means that the Scottish Government has the legal duty to deal with the Scottish outbreak, as do their Welsh and Northern Irish counterparts in their territories.

INTRODUCTION

Until recently one could say with some confidence that acceptance of a general principle against unjustified enrichment was one of the hallmarks of a Civilian system of law. The emergence in Common Law systems of “unjust enrichment” as an important head within the law of obligations has qualified but not altogether eliminated the truth of the observation. Certainly one can still be sure that unjustified enrichment in mixed legal systems is an indicator of the Civilian rather than the Common Law dimension in their development, and that the current state of enrichment law in such systems is a bench-mark against which to test the strength or otherwise of that element in the modern mix. But one should not fall into the error of thinking that unjustified enrichment questions are approached in the same way in all Civilian systems. In a classic article published in the Tulane Law Review in 1962, the late Barry Nicholas distinguished between contemporary French and German approaches, noting that under the former the Code recognised only specific obligations to reverse enrichment in certain defined situations, while the BGB took the general principle as its starting point and developed a regime around that single concept. Although in France jurisprudence and doctrine had developed a general enrichment principle, its extra-codal character meant that it performed only a limited, gap-filling or subsidiary role; whereas in Germany there were no such limits, and the relationship between enrichment and other branches of the law was a matter for substantive and doctrinal analysis of their respective domains.

GOOD FAITH AND FAIR DEALING IN PECL

Good faith is a powerful concept in PECL. Almost from the outset, Article 1:201 PECL declares that “each party must act in accordance with good faith and fair dealing”, and that this “duty” may not be excluded or limited by the parties. Comment A says that the Article “sets forth a basic principle running through the Principles”, while Comment B adds: “Its purpose is to enforce community standards of decency, fairness and reasonableness in commercial transactions.” Even the recognition of parties' freedom to enter into a contract and determine its contents is made “subject to the requirements of good faith and fair dealing” (Article 1:102 PECL). Amongst the various purposes for which the Principles are to be interpreted and developed, “the need to promote good faith and fair dealing” is listed first, ahead of “certainty in contractual relationships and uniformity of application” (Article 1:106 PECL).

The constant conjunction in PECL of good faith with fair dealing indicates that overall an objective standard is intended, rather than a subjective one of simple honesty. Comment E to Article 1:201 PECL says:

There are links to other concepts in PECL. Comment A says that Article 1:201 PECL is a companion to the Article on usages, which makes binding between the parties agreed, established or generally applicable and reasonable usages and practices (Article 1:105 PECL). In this way are ideas about “community standards”, as well as the standards the parties set themselves, articulated in the actual text.

Bill Cornish has not often had other occasion to refer to Scots law or Scotland in the course of his published work, whether on intellectual property, legal history, or other topics. But nevertheless his support of colleagues working on intellectual property in Scotland, notably with regard to the AHRB Research Centre for Intellectual Property and Technology Law at the Edinburgh Law School, has been generous, unstinting and greatly appreciated by the beneficiaries.

The thought that the topic for this essay could be appropiately addressed in Bill's honour was prompted by recollection of some gently amused comments of his at the time about the opening ceremonies of the Scottish Parliament on 1 July 1999, in particular his musician's appreciation of the singing in the chamber (and, significantly, before the Queen) of Burns' ‘A man's a man for a’ that’. On the face of it, however, Scottish devolution did not seem a matter of much moment for intellectual property lawyers as such.

Introduction

It is a crucial aspect of the history of Scots private law that in its history influences from the common law of England have been unavoidable from the beginning and waxed particularly strong after the Union of the Parliaments of the two kingdoms, with a common legislature, final court of appeal (the House of Lords) and the familiarity that comes from proximity, accessibility and a common language. But unlike English law, Scots law was also open from the very beginning to what was to become the Continental European ius commune (common law). The substance of the law was much affected by the universal law of the church (the canon law) and the Roman or Civil law taught in the Continental universities at which until the eighteenth century many Scots lawyers underwent their initial legal education. A further effect was that when Scots lawyers wrote treatises on their law, they used the systematics and concepts of the learned laws of Europe, further reinforcing its ius commune characteristics. If this Civilian dimension weakened after the 1707 Union, and in particular from the Victorian era on, Scots private law nonetheless remains significantly distinct from that of England, and in comparative law terms it is correctly classified as a ‘mixed’ system.

In 1924 the distinguished French comparatist Professor Lévy-Ullmann observed that ‘Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system’.

This book consists of revised versions of the papers presented at a conference held in the Universitat de Lleida, Catalonia, on 27–29 April 2000. Scholars from all over the world came together to discuss a seemingly diverse range of topics linked by three key concepts: (1) European private law; (2) regional private law; and (3) codification of law. The purpose of this introduction is to show how these concepts draw together, and why their interaction is important at this juncture in the development of Europe as a cultural, political and juridical entity.

European private law: the new ius commune

The idea of European private law has been central to much legal scholarship at the end of the twentieth and the beginning of the twenty-first centuries. It has been driven by at least three distinct engines: (1) the European Union; (2) the findings of comparative law; (3) the history of law in Europe, in particular the medieval and early modern concept of a European ius commune, based upon the learned Roman Civil Law and the Canon Law of the Roman Church.

In practical terms, the most important of these engines for the idea of a European private law has been the development of what is now the European Union, linking together for political, economic and social purposes an increasing number of the states of western Europe, and doing so by means, among other things, of law and legal instruments.

The problem

A parent picks up the unpaid bills of her student child at the end of the university term. A football club pays off the gambling and other debts incurred by one of its star players. In my absence from home at an enrichment conference, my neighbour in my Edinburgh tenement flat pays my share of the bill for work carried out in the tenement garden, the underlying contract with the gardener providing that each resident is to be liable only for a pro-rata share. At least two potential enrichment questions arise. If the creditors take no further action against the student or the footballer or me, we three debtors will benefit by the savings made through not having to pay our debts. The creditors will be enriched, however, if, despite the interventions of the parent, the club and the good neighbour, they also continue to seek and recover payment from, respectively, the student or the footballer or me. In both situations, the gain is made at the expense of the payer. Can the respective payers recover either their own expenses or the debtors' enrichments?

Terminology

In the rest of this account the following terminology will be used: the person who pays another's debt will be called the payer (P); the recipient of the payment will be termed the creditor (C); and the person whose debt is paid by P will be known as the debtor (D).