Chathuni Jayathilaka, Sale and the Implied Warranty of Soundness

Document Cited in Related
DOI10.3366/elr.2021.0726
Author
Pages406-408
Date01 September 2021
Published date01 September 2021

In the first volume of the now well-regarded Edinburgh Studies in Scots Law series, writing on the subject of Assignation, Dr Ross Anderson stated that much of Scots law is “old, sometimes cosmopolitan and often undiscovered” (vii). Certainly it is the case that there is an astonishing lack of clarity in many areas of our law – even quite basic and fundamental areas of our law – although this is perhaps in the nature of any ancient and uncodified legal system. The various contributions to the Studies in Scots Law series have, since the publication of Anderson's text in 2008, done much to shine light on under-studied, yet vitally important, subjects of Scots law. Dr Jayathilaka's Sale and the Implied Warranty of Soundness, the sixth volume in this series, is a worthy addition to the canon.

Sale is, as Jayathilaka rightly posits at the outset of her work, “a transaction which lies at the heart of the Scottish economy” (para 1–01), but the common law rules relating to the concept have never been comprehensively rationalised. There has not been so much as an attempt since Mungo Brown's Treatise on the Law of Sale, published two-hundred years ago in 1821. To a certain extent, the lack of literature is understandable, given that, in the case of corporeal moveable property, these common law rules are of no immediate practical significance, having been abrogated by Anglicising statutes in the nineteenth century. The sale of incorporeal property and heritable property alike are, however, thought to be still regulated by the – ostensibly arcane – rules of Scots common law. Any work which makes only a small effort to clarify or systematise the rules relevant to the sale of such property would be welcome and worthwhile; Jayathilaka's work, however, does more than this and so absolutely must be commended.

In addition to presenting a historical – and in some sense pre-historical – account of the law of sale, Jayathilaka critically queries the veracity of the claim that prior to the Anglicisation of corporeal moveables, Scots law recognised a wholly “unified” law of sale. The first substantive chapter – chapter two – conducts a literature review of major texts concerned in whole or in part with the law of sale, whether of goods, heritage or incorporeals. Here, Jayathilaka concludes that though pre-1893 conveyancing textbooks and Bell's Commentaries and Inquiries into the Contract of Sale of Goods and Merchandise did not take a unified approach in their discussion of the contract...

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