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Scotland does not have a ‘law of contract’, as most comparable jurisdictions do, but rather – due in large part to the intellectual innovations of Viscount Stair – possesses a unitary ‘law of voluntary obligations’, of which contracts form but a part. This fact is highly significant, but is frequently overlooked. Indeed, the significance of this has even been overlooked by the Scottish Law Commission, who have recently proposed to significantly reform the ‘law of contract’ in Scotland by urging the passing of a statute which, among other things, would abolish the so-called ‘postal acceptance rule’. This short book takes the view that the proposed reforms are wrongheaded and would be deleterious to the coherence of the Scottish legal framework. To that end, it examines the taxonomy of obligations pioneered by Stair, indicates that the application of that taxonomy to situations such as the process of contracting by distance suggests that there is in fact no ‘postal acceptance rule’ in this jurisdiction and suggests, in light of this, that reform of ‘contracts’ and the formation of, in Scotland, is better left to the courts and jurists than to the Scottish Parliament (or, for that matter, Westminster).
"In Engaging with Engagement, Jonathan Brown presents a thoughtful and thought-provoking thesis about the distinctive normative basis of the Scots law of obligations and the best way to pursue reform of this branch of the law. His scholarly and accessible discussion has much to offer to those with an interest in this field." —Martin Hogg, School of Law, the University of Galway
"This book provides a concise yet rigorous account of the Scots law of voluntary obligations. Beginning with the historical foundations of sources and doctrine, it proceeds through a careful treatment of the postal acceptance rule before advancing a provocative conclusion: that Scots lawyers should resist the prevailing tendency to look outward for codification or reform and instead should look inward – to their own historic corpus of Scots legal literature – for the juristic logic and reasoning it requires."—Leslie Dodd, Edinburgh Napier University
"A powerful and interesting contribution to Scots private law, this book brings different strands of existing scholarship together in a novel way. Its discussion of the postal acceptance rule and the role and significance of the Scottish Law Commission is valuable and insightful. The scholarship is sound, with impressive command of authorities and creative interpretation of legal doctrine."—Jonathan Ainslie, the University of Aberdeen
Dr. Jonathan Brown is a Lecturer in Scots Private Law at the University of Strathclyde.
Contents; Table Of Cases; Table Of Legislation; Acknowledgements; Introduction: Proposals To Reform Scots Contract Law And The Oncoming Storm; Viscount Stair And The Taxonomy Of Private Law Obligations; The Postal Acceptance Rule- Profoundly Unexceptional; The Law Commissioners’ Double-Bind; Conclusion- More Logic And Less Legislative Fiat; Bibliography; Index