Glory with Gloag or the Stake with Stair? T B Smith and the Scots Law of Contract

Hector L MacQueen

in A Mixed Legal System in Transition

Published by Edinburgh University Press

Published in print July 2005 | ISBN: 9780748623358
Published online March 2012 | e-ISBN: 9780748651467 | DOI:
Glory with Gloag or the Stake with Stair? T B Smith and the Scots Law of Contract

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This chapter assesses T B Smith's work on contract law and discusses its impact upon the development of the subject in Scotland. It does so by first describing what appeared to be the general state of the law when Smith entered the academic arena at Aberdeen in 1949, and then considering those parts of it which Smith made the subject of special study in the 1950s. It argues that he was driven primarily by two concerns. One was to refute the view, certainly current in the early 1950s, that the Scots law of contract was scarcely different in any significant respect from its English counterpart. The other concern was to press an argument that, in the areas where difference was particularly apparent, the Scots law provided solutions to well-known and much criticised limitations of English contract law, the requirement of consideration, and the doctrine of privity. Further, properly understood, the Scottish rules on error in contract provided a more satisfactory approach than did the English law of mistake and misrepresentation, also the subject of great controversy in the 1950s.

Keywords: Scots contract law; English contract law; consideration; doctrine of privity; contract error

Chapter.  17228 words. 

Subjects: History of Law

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