How far if at all has the development of the Scottish doctrine of offside goals
limited its application in relation to heritable property?
Aims and Objectives
The Sottish doctrine has been well summarised by R G Anderson and J MacLeod
as:
“[t]he offside goals rule allows the holders of certain personal rights to set
aside completed transfers (of real or personal rights), or grants of subordinate
real rights, made by the grantor to an unrelated third party. 1”
The doctrine of offside goals has been present in Scots law for centuries; however,
there has been confusion over the rules pertaining to it. The confusion over the rules
of the doctrine is owed to the way in which the doctrine has evolved through
academic commentary and case law. As a result of the confusion, the doctrine has
been limited in its application. Therefore, my project will seek to illustrate that the
application of the rules of the doctrine has been limited due to the confusion around
the rules. In order to do so, I will focus on the following:
1. Explore the historical development of the rules of the doctrine and to analyse
how the development of the doctrine has led to uncertainty over some of its
rules.
2. Examine the way in which the doctrine is applied to different case studies.
3. Assess the link between the development of the ambiguous rules and its
relationship with the limited application of the doctrine, paying special
attention to a case study on options.
Research context
Given its early origins, it can be difficult to trace the historical framework of the
doctrine, which can be seen from the fact that case law stretches back to the 16 th
Century2. R G Anderson in his article, Offside goals before Rodger Builders3 offers a
particularly helpful summary to understand the historical development of the
1
Anderson, R, G. & MacLeod, J. (2009). Offside goals and interfering with play, Scots Law Times, 17, 93-97, at p
94.
2
Stirling and White v Drummond [1582] Mor 1689.
3
Anderson, R, G. (2005). Offside goals before Rodger Builders. Juridical Review, 277.
, doctrine. This provides a general understanding of the foundations of the doctrine,
illuminating that fraud was a driving factor in the development of the doctrine. This
has been acknowledged by modern scholars 4. In addition to this, Professor
McDonald’s Conveyancing Manual 5 also provides an abstract historical analysis of
the doctrine and how the doctrine operates. It is hoped that by tracing the
foundations of the doctrine, we can understand the reasoning behind the
development of the rules of the doctrine, to seek to establish if a link exists between
the modern day reasoning of the rule and the historical reasoning of the rule.
R G Anderson’s and J MacLeod’s article 6 gives a brief analysis of a string of case
law of the 1800s, which depicts the inconsistency of the application of the doctrine
and the confusion surrounding it. However, the authors provide an abstract analysis
of the cases. By conducting an in depth examination of Marshall v Hynd7, Petrie v
Forsyth8 and Stodart v Dalzell9, I aim to illustrate how the judicial reasoning in
respect to the rules of the doctrine differed from cases to case, which created
confusion over the application of the doctrine. The cases indicate that there have
been differing views on the doctrine and its application from its early beginnings,
which will have a direct bearing on the interpretation and application of the doctrine
in modern times.
Professor Kenneth Reid was one of the first to make an attempt to offer the doctrine
some thorough modern analysis in the 1900s, in his book, The Law of Property in
Scotland10. The primary focus of this work is upon the operation and application of
the doctrine that is how it works in relation to different scenarios like the typical
example of a double sale. In addition to this, Professor Reid goes on to show how
the development of the doctrine has catered for its enlargement. It is acknowledged
that this guides a reader as to the functions of the doctrine, but it lacks a critical
analysis of case law in relation to the historical foundations.
4
Reid, K, G, C. (1996). The Law of Property in Scotland, paras 695- 700.
5
Steven, A., Wortley, S., & Brand, D. A. (2004). Professor McDonald's Conveyancing Manual. (7th ed.)
LexisNexis Butterworths
6
Anderson, R, G. & MacLeod, J. (2009). Offside goals and interfering with play, Scots Law Times, 17, 93-97at p
94.
7
(1828) 6 S 384.
8
(1874) 2 R 214.
9
(1876) 4 R 236.
10
Reid, K, G, C. (1996). The Law of Property in Scotland, paras 695- 700.
limited its application in relation to heritable property?
Aims and Objectives
The Sottish doctrine has been well summarised by R G Anderson and J MacLeod
as:
“[t]he offside goals rule allows the holders of certain personal rights to set
aside completed transfers (of real or personal rights), or grants of subordinate
real rights, made by the grantor to an unrelated third party. 1”
The doctrine of offside goals has been present in Scots law for centuries; however,
there has been confusion over the rules pertaining to it. The confusion over the rules
of the doctrine is owed to the way in which the doctrine has evolved through
academic commentary and case law. As a result of the confusion, the doctrine has
been limited in its application. Therefore, my project will seek to illustrate that the
application of the rules of the doctrine has been limited due to the confusion around
the rules. In order to do so, I will focus on the following:
1. Explore the historical development of the rules of the doctrine and to analyse
how the development of the doctrine has led to uncertainty over some of its
rules.
2. Examine the way in which the doctrine is applied to different case studies.
3. Assess the link between the development of the ambiguous rules and its
relationship with the limited application of the doctrine, paying special
attention to a case study on options.
Research context
Given its early origins, it can be difficult to trace the historical framework of the
doctrine, which can be seen from the fact that case law stretches back to the 16 th
Century2. R G Anderson in his article, Offside goals before Rodger Builders3 offers a
particularly helpful summary to understand the historical development of the
1
Anderson, R, G. & MacLeod, J. (2009). Offside goals and interfering with play, Scots Law Times, 17, 93-97, at p
94.
2
Stirling and White v Drummond [1582] Mor 1689.
3
Anderson, R, G. (2005). Offside goals before Rodger Builders. Juridical Review, 277.
, doctrine. This provides a general understanding of the foundations of the doctrine,
illuminating that fraud was a driving factor in the development of the doctrine. This
has been acknowledged by modern scholars 4. In addition to this, Professor
McDonald’s Conveyancing Manual 5 also provides an abstract historical analysis of
the doctrine and how the doctrine operates. It is hoped that by tracing the
foundations of the doctrine, we can understand the reasoning behind the
development of the rules of the doctrine, to seek to establish if a link exists between
the modern day reasoning of the rule and the historical reasoning of the rule.
R G Anderson’s and J MacLeod’s article 6 gives a brief analysis of a string of case
law of the 1800s, which depicts the inconsistency of the application of the doctrine
and the confusion surrounding it. However, the authors provide an abstract analysis
of the cases. By conducting an in depth examination of Marshall v Hynd7, Petrie v
Forsyth8 and Stodart v Dalzell9, I aim to illustrate how the judicial reasoning in
respect to the rules of the doctrine differed from cases to case, which created
confusion over the application of the doctrine. The cases indicate that there have
been differing views on the doctrine and its application from its early beginnings,
which will have a direct bearing on the interpretation and application of the doctrine
in modern times.
Professor Kenneth Reid was one of the first to make an attempt to offer the doctrine
some thorough modern analysis in the 1900s, in his book, The Law of Property in
Scotland10. The primary focus of this work is upon the operation and application of
the doctrine that is how it works in relation to different scenarios like the typical
example of a double sale. In addition to this, Professor Reid goes on to show how
the development of the doctrine has catered for its enlargement. It is acknowledged
that this guides a reader as to the functions of the doctrine, but it lacks a critical
analysis of case law in relation to the historical foundations.
4
Reid, K, G, C. (1996). The Law of Property in Scotland, paras 695- 700.
5
Steven, A., Wortley, S., & Brand, D. A. (2004). Professor McDonald's Conveyancing Manual. (7th ed.)
LexisNexis Butterworths
6
Anderson, R, G. & MacLeod, J. (2009). Offside goals and interfering with play, Scots Law Times, 17, 93-97at p
94.
7
(1828) 6 S 384.
8
(1874) 2 R 214.
9
(1876) 4 R 236.
10
Reid, K, G, C. (1996). The Law of Property in Scotland, paras 695- 700.
