Comparative And Historical Essays In Scots Law

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Although the doctrine may have existed in the jurisprudence and doctrine of the Civil Law systems of the eighteenth century, one could hardly call it systematised there at that time, and indeed in France it has to this day not been codified.

Even in the Civil Law systems where it has now been translated to modern codified provisions, these are typically so bland as to be meaningless without reference to case-law.

But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or injury to the legal rights of his neighbour . No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. The existence of public law controls curbing antisocial developments means that modern cases are much rarer than during the era of rapid industrialisation and urbanisation, but from time to time English litigants are still reminded that there is no absolute rule of law which prevents landowners from using their land in a way which injures a neighbour. take into account motive as constituting an element of civil wrong . There then followed a string of further English tort cases involving interference with employment contracts, in which the courts unhesitatingly took up an 'abstentionist' stance, steering clear of any kind of regulatory role over unfair trade practices, even where the actions complained of were patently unfair.

(involving a trades union dispute where one group of workers effectively induced an employer to sack another, smaller group of workers), the unfaltering Lord Watson could be found declaring that 'the law of England does not . to refuse the claim of an unemployed ironworker against the employers' insurance organisation which had effectively put him on to an employers' blacklist.

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While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Smith was one of the key figures in the rediscovery of the distinctiveness of Scots law as a mixed legal system, and he devoted much of his writing to uncovering its Civilian elements.

Readers are permitted to make copies, electronically or printed, for personal and classroom use. Smith's evangelical vision (and graphic turn of phrase) encompassed many areas of private law, but the profanity instanced here was the denial of 'the principle of Smith's assumption was that the place of abuse of rights in Scots law should be acknowledged in order to secure a further element of the Civil Law tradition.

The issue here is whether the mechanisms used to restrict the ambit of this rule, and the degree to which this is achieved, are in some way distinctive to either Common or Civil Law.

It is interesting to note that Bankton, writing in the mid-eighteenth century in his 'Observations on the Law Of England' appended to the books of his , commented on English law to the effect that 'if an ancient watercourse goes to one's mill or house for his use, his neighbour cannot divert it, tho' upon his own ground, from taking the former course; and if he does, action upon the case will lie at the suit of the owner of such mill or house, this being to his damage'.


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