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An overview of the mechanism in edinburgh and the concept of protected trust deed

Conveyancing 2016, the eighteenth volume in the series, offers a full and authoritative account of conveyancing law and practice in Scotland during the year 2016. As usual, the coverage includes: Particular attention is given to enforcing real burdens, servitudes of parking, Keeper-induced registration, and e-conveyancing.

There is consideration of the Land Reform Scotland Act 2016 and the Private Housing Tenancies Scotland Act 2016, and a review of the increasingly complex pattern of property taxes in Scotland with an emphasis on the additional dwelling supplement. Written in a clear, direct style, Conveyancing 2016 is an essential guide for practitioners to this fast-moving area of law.

This title provides expert insight into how the Requirements of Writing Scotland Act 1995 brought about an overhaul of the Scottish system of execution of deeds.

Professor Kenneth Reid

The Act simplified the rules about which rights may be constituted orally and which require writing. It prescribes the rights which, in Scots law, need writing for their constitution, and makes provision for how the writing is to be signed and authenticated.

The Act now makes provision for electronic conveyancing, being updated to allow electronic documents to have the equivalent status and standards of validity and authenticity as paper. The book, which was first published in 1995, provides a detailed commentary, section by section, on every provision in the Act.

Publishing in the Greens Annotated Acts series, this work provides authoritative commentary on the Act as it stands today, stating its full implications for those working within the Scottish legal system. Conveyancing 2014, the sixteenth volume in the series, offers a full and authoritative account of conveyancing law and practice in Scotland during the year 2014.

The legislation discussed includes the Housing Scotland Act 2014 and the Buildings Recovery of Expenses Scotland Act 2014, as well as the coming into force of amendments to the Requirements of Writing Scotland Act 1995 which allow electronic deeds. Conveyancing 2013, the fifteenth volume in the series, offers a full and authoritative account of conveyancing law and practice in Scotland during the year 2013. Particular attention is given to the vexed question of the description of common parts in housing estates, and to an Inner House decision on actions for payment in enforcement of missives.

Written in a clear, direct style,Conveyancing 2013is an essential guide for practitioners to this fast-moving area of law. By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This volume contributes to its rehabilitation by examining key issues in succession law from a variety of perspectives: In particular it seeks to extend the techniques of legal comparison into an area of law where hitherto they have been little used.

The jurisdictions most prominently featured are the mixed jurisdictions of Scotland and South Africa, but there are frequent comparative references, and special attention is given to the Netherlands as the country which has most recently re-written its succession law.

Among the topics covered are freedom of testation, testamentary conditions and public policy, forfeiture clauses and events, revocation of wills by changed circumstances, revocation of mutual wills, fideicommissary substitutions, and succession agreements. The volume opens with an overview of the state of comparative law and with a consideration of compulsory heirship in Roman law. Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the development of a European private law.

Pre-eminent among the mixed legal systems are those of Scotland and South Africa. In South Africa the Roman-Dutch law, brought to the Cape by the Dutch East India Company in 1652 was, from the early nineteenth century onwards, infused with and re-moulded by the common law of the British imperial master. In Scotland a more gradual and elusive process saw the Roman-Scots law of the early modern period fall under the influence of English law after the Act of Union in 1707.

The result, in each case, was a system of law which drew from both of the great European traditions whilst containing distinctive elements of its own. This volume sets out to compare the effects of this historical development by assessing whether shared experience has led to shared law. Key an overview of the mechanism in edinburgh and the concept of protected trust deed from the law of property and obligations are examined, collaboratively and comparatively, by teams of leading experts from both jurisdictions.

The individual chapters reveal an intricate pattern of similarity and difference, enabling courts and legal writers in Scotland and South Africa to learn from the experience of a kindred jurisdiction. They also, in a number of areas, reveal an emerging and distinctive jurisprudence of mixed systems, and thus suggest viable answers to some of the great questions which must be answered on the path towards a European private law.

Law in Scotland has a long history, uninterrupted either by revolution or by codification.

An overview of the mechanism in edinburgh and the concept of protected trust deed

This work is a detailed and systematic study in the field of Scottish private law. It takes key topics from the law of obligations and the law of property and traces their development from the earliest times to the present day.

Kenneth Reid, George Gretton, A. Andindeed the text was seen as one part only of a whole system of legal education. This paper examines the circumstances in which the Principles was written andconsiders its gradual transformation into a work of a quite different kind.

Kenneth Reid, 'Constitution of Trust: How Material is 'Material'? At the very time when the feudal system of land tenure was being abolished in France, and elsewhere in Europe, it was enjoying an unexpected revival in Scotland as a means of controlling urban development. Real burdens could and can also be used in a non-feudal context, in which case they resemble praedial servitudes.

But, unlike servitudes, real burdens can impose affirmative obligations, such as an obligation to construct and maintain a building.

Today Scotland is one of the last jurisdictions in the world to have an operational feudal system. That will shortly change. Legislation passed in 2000 abolishes the feudal system with effect from 28 November 2004. At the same time the law of real burdens is reformed and codified. The continued existence, and importance, of real burdens was the greatest obstacle to feudal abolition.

The legislation tackles the difficulty with various improvisations, in some cases reallocating enforcement rights to neighbours including former superiorsand in others allowing the burdens to lapse altogether. Affirmative burdens will be a permanent legacy of the feudal era, but in other respects its continuing influence on land law is likely to be slight.

While the distinction between legal and equitable ownership is of central importance to the historical development of the trust in England, the idea of trust does not depend on such a distinction.

An overview of the mechanism in edinburgh and the concept of protected trust deed

In the mixed legal systems, of which Scotland is an example, there is a fully developed doctrine of trust, but no corresponding doctrine of equity. This suggests that equity is not, after all, the main organising feature of the law of trusts. The argument of this paper is that the fundamental characteristic of the trust is not dual ownership, but dual patrimony.

In the normal case a single person has only a single patrimony. But in a trust there are two patrimonies, for, in addition to his private patrimony, the trustee holds a trust patrimony consisting of all the assets and liabilities of the trust.

The patrimonies are distinct in law, so that the assets of the trust patrimony cannot be used to meet the liabilities of the personal patrimony. This idea of dual patrimony explains much in the law of trusts that is otherwise puzzling. In particular it explains the substitution of assets when trust property is bought and sold, the protection given to the trust beneficiary against the personal insolvency of the trustee, and the identity of the trust in a manner distinct from those who, for the time being, are its trustees and beneficiaries.

Preparing for the abolition of the feudal system has been a challenging task. Systems of land tenure do not lie down and die of their own accord, and even after 800 years of adaptation and reform, the grip of feudalism remains tenacious and all-pervasive.

Feudal abolition could scarcely be accomplished without fundamental change.

  1. If the protection is weak, or non-existent, an acquirer must work hard to verify the title which is being on offer and, even so, runs the risk that the title will be bad. Six out of seven shareholders were ruined by the collapse, and those who were not suffered catastrophic losses.
  2. Conveyancing , the sixteenth volume in the series, offers a full and authoritative account of conveyancing law and practice in Scotland during the year The continued existence, and importance, of real burdens was the greatest obstacle to feudal abolition.
  3. Remco van Rhee ed. There was a choice between registration in a local register or in a central register in Edinburgh the General Register of Sasines ; and registration was constitutive of the real rights which the deeds sought to create.

The draft Abolition of Feudal Tenure etc Scotland Bill appended to the final report of the Scottish Law Commission Scot Law Com no 168 comprises all of 71 clauses and 9 schedules and runs to some 100 pages. For a period of almost 40 years, the legislation in Scotland on land registration shared many features with the equivalent legislation in England and Wales.

With the passing of new legislation in 2012, however, Scotland has moved decisively away from the English model towards the model found in Germany and in some Torrens systems.

An overview of the mechanism in edinburgh and the concept of protected trust deed

The Land Registration etc Scotland Act 2012 adopts a rule of deferred indefeasibility. At the same time, it abandons the principle of title by registration, with its attendant bijuralism, in favour of a rule which confers title only on those whom, in the long run, the system intends to protect —principally those presenting for registration deeds which are valid, or those whose deeds are invalid only on account of an error on the register which was unknown to them.

The new Act was the culmination of a root-and-branch review of the law of land registration by the Scottish Law Commission. This paper explores the reasons for the changes and seeks to evaluate their effect. Finally, the text of the Institute itself is examined, with particular attention being given to its structure, the range and depth of treatment, the relationship to the earlier Principles of the Law of Scotland intended as a student textand to the sources used.

Remco van Rhee ed. Certain patterns emerge from the preceding chapters.

An overview of the mechanism in edinburgh and the concept of protected trust deed

Only three types of will are at all common. The third, the notarial will, is public. And whereas in common law jurisdictions only the witnessed will is usually recognized, in the civil law world there is often a choice between notarial wills and one of the private wills, usually the holograph will. This chapter considers the history of each will type, discusses the current state of the law, and traces the gradual retreat from formalities and from formalism itself.

  • The draft Abolition of Feudal Tenure etc Scotland Bill appended to the final report of the Scottish Law Commission Scot Law Com no 168 comprises all of 71 clauses and 9 schedules and runs to some 100 pages;
  • In 1749 the case of Crawfurd v The Royal Bank considered, and settled, one of the key legal issues;
  • This volume contributes to its rehabilitation by examining key issues in succession law from a variety of perspectives;
  • That will shortly change;
  • Kenneth Reid, George Gretton, A.

There are no separate rules of testamentary formality in Scottish law, and wills are solemnised in the same way as other juridical acts for which writing is required. The reason is historical. Until 1868 it was not possible to make a will in respect of immoveable property, and heirs could only be disinherited by a deed which had at least the appearance of an inter vivos conveyance. In practice, such conveyances tended to be used for moveable property as well although a will was competent.

The result was that wills were little used until the second half of the nineteenth century, by which time it was too late to develop distinctive rules of execution. This chapter examines the history of testamentary formalities in Scotland, considers the influences, internal and external, on the development of the law, and evaluates the role played by legal policy. There is much that is similar or the same in the law of praedial servitudes in Scotland and Louisiana, but there are also significant points of difference.

This chapter is organized as follows. Section A gives an overview of the law and sets that law in some kind of historical context. How is the law to provide where parties have failed to provide for themselves?

This subject is quite a large one and the chapter considers only two specific aspects. One is the extent to which a servitude carries with it rights not mentioned in the juridical act which brought the servitude into being. The other is the circumstances under which the law will take the radical step of creating a servitude which the parties themselves have done nothing to bring about.

An overview of the mechanism in edinburgh and the concept of protected trust deed

These topics are explored in Sections B and C, respectively. Finally, Section D attempts to draw comparative conclusions of a more general nature. The Promised Land W. Towards a Unified System of Land Burdens? This chapter begins with a review of T B Smith's career and writing, which are characterized by a number of paradoxes.

It then traces his academic career which began in 1949 with his appointment to the vacant Chair of Law at the University of Aberdeen. It discusses his discovery of mixed legal systems and his inaugural lecture as Chair of Civil Law at Edinburgh on 17 October 1958, which set out, in uncompromising terms, a manifesto for the future of private law in Scotland. The chapter then considers the reactions to Smith's blueprint for Scots law, Smith's scheme for the renewal of Scots law, his interest in comparative law, his commitment to teaching, and his legal writing.

  • Particular attention is given to enforcing real burdens, servitudes of parking, Keeper-induced registration, and e-conveyancing;
  • This proliferation of paper would hardly have been possible without a stable legal framework.

Bartels, John Michael Milo ed. Matthew, Brian Harrison ed. Scots Law into the 21st Century W.