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Vicarious liability is the treatment, regardless of fault, of one defender as liable for another defender's wrong. The basic inquiry involves examination of whether (i) the defenders stand in a relationship capable of giving rise to vicarious liability; and (ii) the wrongdoing is relevantly linked to that relationship. Unsatisfactory though the reality and its results may be, the contours of these core components are sculpted as new fact patterns come before the courts, and judges emphasise differently and compromise between various policy goals. The elementary principles are quite well-settled, especially given a relative paucity of case law and literature. But room for refinement remains. We here further analyse issues of interest in Scotland and beyond concerning the basic inquiry, and clarify the unimportance in this context of the distinctiveness of Scots law, before summarising our conclusions. [ABSTRACT FROM AUTHOR]

The Defamation and Malicious Publication (Scotland) Act 2021 is, in its way, a major achievement. A codifying statute for a complex area of the law was produced in a relatively short time-frame, and the SLC's objective of modernising and simplifying the law was certainly realised. Yet the Act also demonstrates some of the difficulties of legislating for the law of delict, especially in the Scottish context. [ABSTRACT FROM AUTHOR]

Previously in this journal the author reviewed Scots law's corporate debt finance rules from a transaction cost perspective. Recent research has identified that use of the Scottish corporate vehicle has significantly dropped for companies listing on the London Stock Exchange, even for those companies with headquarters in Scotland. This article explores whether this could be said to be caused by differences in company law rules between English and Scots law. It identifies that there are low transaction cost differences when it comes to known differences, but that Scots law is at a disadvantage when it comes to implicit differences (for example, the nature of a share) and uncertain company law differences from English law (for example, whether the Duomatic principle, or any other equity-based English company law principle, applies under Scots law). The framework for a market for company law exists intra-UK. As such, it seems possible that the reduction in use of the Scottish form arises because of higher transaction costs when using the Scottish form. This represents a methodological development for company law more generally – an atomisation approach, distilling company law into its component private law aspects. [ABSTRACT FROM AUTHOR]

Violation of sepulchres is a common law crime in Scotland. This crime ensures that interred human corpses are not subject to the ordinary laws of property, but are instead protected under this distinct heading of law. While it now appears settled that a corpse can be stolen prior to interment, it remains unclear if a corpse which was once buried, but has since been lawfully removed from its grave, remains incapable of being stolen, or if it becomes susceptible to theft again when exhumed. This article suggests that the latter occurs in Scots law since a res religiosa – an object not subject to the ordinary rules of property – is created when the body is placed in its grave. This suggestion draws on the connection between the contemporary crime of violation of sepulchres and its Roman ancestor, the crimen violati sepulcri. The article suggests that though the overtly religious overtones of the term ‘res religiosa’ appears to be at odds with an increasingly secularised society, the law surrounding res religiosae functionally explains the absence of ‘property’ in buried bodies, thus providing a logical basis for the proposition that an unburied body may be stolen, but a buried body may not be. [ABSTRACT FROM AUTHOR]

The Treaty of Union 1707 between Scotland and England and the respective implementing legislation in each Kingdom contained provisions which today we might describe as 'opt-outs'. These opt-outs from incorporating Union preserved aspects of the Scottish legal system which, along with the Presbyterian religion and the system of education, helped to ensure that Scottish identity was supported by some of the most powerful aspects of the state. This essay will examine some of the provisions of the Treaty, analyse aspects of the legal system and law that persisted after the Union, comment on the extent to which 310 years of the Union with England influenced that law, reflect on membership of the EU and the harmonization which it brought to the legal system and consider the impact of the Scottish Parliament on that law and legal system. [ABSTRACT FROM AUTHOR]

In this article, the late Professor David Carey Miller examines the influence of South African private law on the development of the private law of Scotland, taking certain aspects of property law as a case study, and considering in particular the roles played by T B Smith and Lord Rodger in introducing South African legal material to Scottish legal audiences. [ABSTRACT FROM AUTHOR]

This article examines and evaluates the Roman and Civilian origins of the Scottish rule of succession known as the conditio si testator sine liberis decesserit. The article focuses on the rule that is implied by law where the will itself is silent but, as the legally implied rule probably seeks to emulate the express provision of a testator, the article starts by setting out the position as regards express testamentary provision. The original Roman source of the rule is identified; thereafter the article examines and comments upon the lengthy period of development of the Scottish rule up to its final form at the start of the twentieth century. That latter point in time is when the Scottish rule had received much of its modern form. This article therefore forms a basis for the understanding of modern Scots law. [ABSTRACT FROM AUTHOR]

A summary of the Organised Crime and the Criminal Justice and Licensing (Scotland) Act 2010, passed by the Great Britain government in 2010, is presented.