Before Bell: The Roots of Error in the Scots Law of Contract
| Published date | 01 September 2010 |
| Pages | 385-417 |
| Author | John MacLeod |
| Date | 01 September 2010 |
| DOI | 10.3366/elr.2010.0303 |
The effect of error on contracts is a favourite topic in many legal systems. Scotland is no exception,
J J Gow, “Mistake and error” (1952) 1 ICLQ 472; J J Gow, “Some observations on error” (1953) 65 JR 221; J J Gow, “
G J Bell,
The early period is discussed by McBryde, “Error” (n 1) at 72–76.
J Gordley,
Examination of the earlier materials in light of this research reveals an attitude to error which is quite different from that in modern European systems. While the Scottish approach was rooted in the Roman law texts and the
Smith,
Until the late nineteenth or early twentieth century, lawyers in Scotland tended to understand contract formation in terms of subjective consensus. Except where it described voidness for initial impossibility (usually due to the absence of an object of sale), error was merely one of the ways in which absence of consensus was explained. Error was a bit like forgery. Lawyers often talk about forgery but in most cases the fact that a document has been forged is not the really important point. The important point is that the person whose signature has been forged has not signed the document. For that reason, a doctrine of forgery is unnecessary: the results are generated by the normal rules on consent. The same was true of error.
Recent scholarship has tempered the view that Stair created a law of contract without reference to earlier native materials.
G Lubbe, “Formation of contract”, in Reid & Zimmermann (eds),
W W McBryde, “Error” (n 1) at 74. The earliest case I have found which discusses error in the relevant sense is
Broadly speaking, the European background may be said to be composed of two strands.
For the second strand, see B.(2) below. The multifarious nature of the
Mediated through scholastic thinking: see Schermaier,
For present purposes, the content of the
R Zimmermann,
The distinction between
See M Kaser,
E.g. where one party thought it was a lease and the other thought it was a sale.
F de Zulueta,
Odofredus, a contemporary of Accursius, appears to have been the first to make the connection between the categories of relevant error and the
The fact that the contract was formed by subjective consensus has important consequences for our understanding of these instances of error.
The significance and understanding of consensus in classical Roman law is contested but this at least is the traditional view. See further D Daube, “
Discounting the rather unlikely case when both parties have the same incorrect belief about the identity of one party.
Secondly, unilateral error would mean dissensus: one party intended to sell while the other intended to hire; one intended to sell
D 18.1.9 (Ulpian).
An incidental consequence is that the natural paradigm for error was unilateral rather than commonOne category of error accepted in the Roman texts appears to present problems for this analysis.
Error regarding the sex or virginity of a slave is also mentioned (D 18.1.11.1 (Ulpian)) but this was clearly of little relevance to Stair.
Error about what an object was made of (To continue reading
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