| Popis: |
The transfer of money claims (debts) is of the utmost practical importance. In Scots law this is achieved by an ‘assignation’ (also known as ‘assignment’ or ‘cession’). The first part of the thesis (chapters 2 and 3) places the Scots law of assignation in its comparative and historical context. The differences between an assignation and other juridical institutions are highlighted. With these distinctions in mind the accepted history of the law of assignment is considered. The development of the law, from Roman law through the jus commune, and the apparent reception of the French approach in Scots law are traced. The following three chapters deal with three important elements in a modern assignation. The constitutive role that debtor notification plays in Scots law is the subject of chapter 4. Chapter 5 looks at the so-called ‘assignatus utitur jure auctoris’ rule, i.e. the defences available to the debtor in an assignation against the assignee. Particular reference is made to the set-off pleas of compensation and retention. Finally, chapter 6 is concerned with issues of validity. Does Scots law subscribe to the abstract theory of transfer? If so, what are the consequences? Particular reference is made to the effect of a contractual prohibition on assignment (pactum de non cedendo). It will become apparent that, despite the relative paucity of recent litigation on the subject, the Scottish jurisprudence on assignment is rich. The sources show an unbroken path of legal development stretching over half a millennium. Although often characterised as unnecessarily formal, Scots law has had a particularly liberal attitude to assignability. Clear general principles have been distilled. On matters of detail the position is less certain. The thesis identifies the relevant sources of the law of Scotland, many of which have been ignored. These are critically analysed, often from a comparative perspective. |
