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A History of Private Law in Scotland: Volume 2: Obligations$
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Kenneth Reid and Reinhard Zimmermann

Print publication date: 2000

Print ISBN-13: 9780198299288

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198299288.001.0001

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(p.72) 3 Error
A History of Private Law in Scotland: Volume 2: Obligations


Oxford University Press

This chapter discusses the challenges and difficulties surrounding the interpretation and explanation of the Scots law of error. Even after 500 years of development, the Scots law of error remained in its material parts uncertain and conflicting. In this chapter, the five reasons for the existence of errors in the interpretation of Scots law are examined and assessed. These five reasons are: inadequate judicial analysis and the absence of academic comment during the formative years of the law; the existence of several influences such as the canon law, the Roman law, the English law, and the Scottish thought that made a debatable impact on the formation of Scots law; the existence of tension between the subjective approach and the objective approach to contractual consent; the influence of the procedure of civil jury trial on the development of the law; and the intrinsic difficulty of the subject owing to the erratic treatment of the agreement.

Keywords:   law of error, Scots law, error, Roman law, English law, canon law, subjective approach, objective approach

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