Was the Scots Common Law underlying contracts of sale unified in regard to the implied warranty of soundness?
View/ Open
Jayathilaka2015.docx (1.007Mb)
Date
25/11/2015Author
Jayathilaka, Herath Mudiyanselage Chathuni
Metadata
Abstract
The thesis explores whether, prior to the nineteenth century regime of legislative
intervention which anglicised the law relating to contracts of sale for goods, the
Scots common law underlying contracts of sale developed in a unitary fashion. Did
the same principles apply regardless of whether the subject of the sale was corporeal
moveable, corporeal immoveable or incorporeal? This question is analysed through a
case study of the common law contractual implied warranty of soundness, and its
application to the three types of property mentioned above. While this study does not
provide a definitive answer on its own, it does give us a preliminary indication as to
whether the law was unified or not.
The thesis relies primarily on Scots case law and academic writings, employing
historical and doctrinal methodologies. The study is supplemented by comparative
law from France, Germany, South Africa and England. Roman law, and the works
certain Ius Commune writers, are also referenced.
The thesis can be divided into four parts. The first part explores whether
academic texts on the contract of sale dating prior to the legislative intervention
took a unified approach in their discussion. This establishes whether scholars from
this period viewed the contract of sale as unified; and aids the analysis in subsequent
chapters. The second part examines the warranty’s substantive framework in the
context of its development, in the eighteenth and nineteenth centuries, through case
law featuring corporeal moveable property. The third part looks at the warranty’s use
in contracts of sale for corporeal immoveable property. Here, I establish that: 1) there
was no consensus as to whether or not the warranty applied to this type of property;
and 2) the warranty was not utilised by buyers of this type of property in practice.
I identify a combination of factors which prevented buyers of latently defective
corporeal immoveable property from invoking the warranty. The final part of the
thesis examines the warranty’s actual and theoretical application to contracts of sale
for incorporeal property. It establishes that the warranty would be relevant to some,
but not all, types of incorporeal property.