Chapter

Risk in Sale – From Roman to Scots Law<sup>☼</sup>

William M Gordon

in Roman Law, Scots Law and Legal History

Published by Edinburgh University Press

Published in print October 2007 | ISBN: 9780748625161
Published online September 2012 | e-ISBN: 9780748671571 | DOI: http://dx.doi.org/10.3366/edinburgh/9780748625161.003.0014
Risk in Sale – From Roman to Scots Law☼

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The rules on risk in sale have had a chequered career in Scots law. Early evidence suggests that Scots law did not accept the Roman rule that risk passes on conclusion of the contract. Stair has regard to Roman law but does not follow it completely, making an exception for total destruction of the subject matter. Full acceptance of the Roman rule in sale of movables is found only in the 18th century but eventually in the Sale of Goods Act 1893 Scots law is assimilated to English law in the interests of uniformity. Risk now passes with property, which in turn passes when intended by the parties and not by delivery. In the sale of land the rule that risk passes on conclusion of the contract was settled only by the Sloans Dairies case in the 1970s, where Roman law was used as authority but apparently without full understanding of the sources. The rule is not, however, altogether suitable for sale of land and is commonly altered by contract.

Keywords: Sale; Risk in sale; Roman law; Reception; English law

Chapter.  6572 words. 

Subjects: History of Law

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