LLB Law
Civil Law
LAW10117
2021/22
Essay Question
Analyse the ways in which the Court of Session employed Roman law in the
case of Sloans Dairies v Glasgow Corporation 1977 SC 233.
Word Count: 2,500
1
, Introduction
The Roman law on the passing of risk has been met with opposition, particularly from Institutional
writers such as Erskine. Nevertheless, there have been several instances where there may be a lack of
clarity in a particular aspect of a civil case, compelling the courts to employ the rules of the Roman
law. Indeed, the Court of Session employed Roman law in the case of Sloans Dairies v Glasgow
Corporation1, sparking debate among academics and practitioners as to the appropriateness of the
interpretation utilised by the Court of Session to settle the dispute. This essay will first outline the
framework of Scots law and Roman law discussed in relation to heritable property and the passing of
risk. Thereafter, this essay will analyse the ways in which the Court of Session employed Roman law
in Sloans Dairies to reach its decision.
Property and the Passing of Risk
Heritable property transactions in Scots law are comprised of two elements; a contract and a
conveyance.2 Subsequently, those matters which relate to the contract, such as price and risk, are said
to be regulated by different principles from those relating to the conveyance or transfer of property. 3
One of the basic common law rules of sale concerns the rules relating to the passing of risk; the test
used to determine which party to the contract of sale bears the risk of accidental damage or
destruction of the property after the contract has been concluded.4 The Scottish position is explained
by the institutional writer Bell:
“In our law it is settled that risk is no test of property; and that the question of risk forms
a point in the law of Obligations, not in the law of Trasference; the decision of it
depending upon the principles quite distinct from those concerned in the question of
property.”5
The rules regarding the passing of risk and property in contracts for the sale of corporeal moveables
are now provided for by the Sale of Goods Act 1979, with the basic principle being res perit domino.6
1
Hereon in referred to as “Sloans Dairies”.
2
A.D.M Forte, ‘Must a Purchaser Buy Charred Remains? – An Analysis of the Passing of Risk on Civilian
Principles’ (1984) 19 Irish Jur, 1.
3
See Erskine, An Institute of the Law of Scotland, 2, 1, 1. (1871 Edition by Nicolson)
4
Alan Rodger, ‘Roman Law Comes to Partick’ (Civil Law Tradition in Scotland. Edinburgh, Stair Society)
5
Bell, Commentaries, 1, 169. (References are to the 1870-71 edition by McLaren)
6
A.D.M Forte, ‘Must a Purchaser Buy Charred Remains? – An Analysis of the Passing of Risk on Civilian
Principles’ (1984) 19 Irish Jur, 1.
2
Civil Law
LAW10117
2021/22
Essay Question
Analyse the ways in which the Court of Session employed Roman law in the
case of Sloans Dairies v Glasgow Corporation 1977 SC 233.
Word Count: 2,500
1
, Introduction
The Roman law on the passing of risk has been met with opposition, particularly from Institutional
writers such as Erskine. Nevertheless, there have been several instances where there may be a lack of
clarity in a particular aspect of a civil case, compelling the courts to employ the rules of the Roman
law. Indeed, the Court of Session employed Roman law in the case of Sloans Dairies v Glasgow
Corporation1, sparking debate among academics and practitioners as to the appropriateness of the
interpretation utilised by the Court of Session to settle the dispute. This essay will first outline the
framework of Scots law and Roman law discussed in relation to heritable property and the passing of
risk. Thereafter, this essay will analyse the ways in which the Court of Session employed Roman law
in Sloans Dairies to reach its decision.
Property and the Passing of Risk
Heritable property transactions in Scots law are comprised of two elements; a contract and a
conveyance.2 Subsequently, those matters which relate to the contract, such as price and risk, are said
to be regulated by different principles from those relating to the conveyance or transfer of property. 3
One of the basic common law rules of sale concerns the rules relating to the passing of risk; the test
used to determine which party to the contract of sale bears the risk of accidental damage or
destruction of the property after the contract has been concluded.4 The Scottish position is explained
by the institutional writer Bell:
“In our law it is settled that risk is no test of property; and that the question of risk forms
a point in the law of Obligations, not in the law of Trasference; the decision of it
depending upon the principles quite distinct from those concerned in the question of
property.”5
The rules regarding the passing of risk and property in contracts for the sale of corporeal moveables
are now provided for by the Sale of Goods Act 1979, with the basic principle being res perit domino.6
1
Hereon in referred to as “Sloans Dairies”.
2
A.D.M Forte, ‘Must a Purchaser Buy Charred Remains? – An Analysis of the Passing of Risk on Civilian
Principles’ (1984) 19 Irish Jur, 1.
3
See Erskine, An Institute of the Law of Scotland, 2, 1, 1. (1871 Edition by Nicolson)
4
Alan Rodger, ‘Roman Law Comes to Partick’ (Civil Law Tradition in Scotland. Edinburgh, Stair Society)
5
Bell, Commentaries, 1, 169. (References are to the 1870-71 edition by McLaren)
6
A.D.M Forte, ‘Must a Purchaser Buy Charred Remains? – An Analysis of the Passing of Risk on Civilian
Principles’ (1984) 19 Irish Jur, 1.
2
