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Unincorporated Associations Reform

Document Cited authorities 3 Cited in Related
Vincent
Date01 June 2009
Published date01 June 2009
AuthorRoss Gilbert Anderson
Pages507-511
DOI10.3366/E1364980909000663

“All our law is about persons, things and actions. Let us first consider persons”. From Gaius,1

Gaius, Inst. 1. 8: omnia autem ius quo utimur vel ad personas pertinet vel ad res vel ad actiones. [sed] prius videamus de personis.

through Justinian,2

Justinian, Inst 1.2.12 is taken from Gaius.

 to the Scotland Act 1998,3

Scotland Act 1998 s 126(4).

 the tripartite distinction of private law has had an enduring influence. Yet it is a curious fact that the first pillar of the Gaian scheme has, in Scotland, with the important exception of child and family law, been all but ignored. It is not taught at university. There is no book on the subject. And outside academia the law of persons is perhaps not even widely recognised as a subject. In daily practice, however, there are a myriad of problems. The law of persons might be broken down into various sub-categories: persons and non-persons; natural persons and legal persons; persons and patrimonies. It is in the law of persons that concepts on legal personality and legal capacity need to be studied. The law of persons, though core, is too often ignored

The law of clubs and unincorporated associations may be regarded as falling within what Rudolf von Jhering termed Die Jurisprudenz des täglichen Lebens (Law in Daily Life).4

Cf A I Phillips, “Rating relief: miscellaneous organisations and associations” (1958) 1 Conveyancing Review 80: “The majority of solicitors represent one or more among the hundreds of clubs and non-commercial organisations whose objects exclude profit-making or use it only as a means to an end; each firm has its Honourable Company of Sputnik Worshippers or local table-tennis association whose legal problems make up by their complexity and imperative character for their lack of patrimonial consideration”. Many unincorporated associations, of course, have patrimonies of considerable wealth to which much consideration is given.

If the law of unincorporated associations does not sound like a glamorous area of the law, that might be because associations are banal and, generally speaking, not-for-profit. But it does not reflect well on Scots law where the law on the banal and mundane is inaccessible, uncertain or unsatisfactory. Unfortunately, in the case of associations, the law is often all of these things. The Scottish Council for Voluntary Organisations estimates that there are some 45,000 voluntary organisations in Scotland, the majority of which are unincorporated associations.5

Scottish Law Commission, Discussion Paper on Unincorporated Associations (Scot Law Com DP No 140, 2008; available at www.scotlawcom.gov.uk). See too C Tyre, “Persons unknown” (2009) 54(1) JLSS 22.

 To put that figure in perspective, figures from Companies House for October 2008 indicate that there are some 147,000 companies registered in Scotland, of which 418 are public companies, while there are about 1,800 Scottish limited liability partnerships. Still, while most lawyers have some appreciation of company and partnership law, even the inquisitive lawyer will be hard pushed to find a clear statement of the Scots law of associations. Those associations that do not appear to encounter legal difficulties may do so in spite of the law and not because of it. The Scottish Law Commission has thus included the law of unincorporated associations in its present programme of law reform. That decision is welcome. In a discussion paper published in December 20086

Discussion Paper (n 5) para 1.2.

 the Commission has identified a number of problems and suggested some possible solutions PRESENT DIFFICULTIES

The discussion paper highlights a number of areas where the present law is thought to be unsatisfactory. First and foremost, the Commission considers the problems that ensue from the status of an association as “unincorporated”. Not being a legal person, an association cannot commit delicts,7

Harrison v West of Scotland Kart Club 2004 SC 615.

enter into contracts8

So a member buying a drink in the bar of an...

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