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Anderson, R.G. (2004)
Publisher: Edinburgh University Press
Languages: English
Types: Article
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    • 7 R Bruce Wood, in F Salinger, Factoring: the Law and Practice of Invoice Finance, 3rd edn (1999), ch 7.
    • 8 See O Lando, E Clive, A Prüm and R Zimmermann (eds), Principles of European Contract Law, part 3, (2003) and the commentaries to the provisions of Art 11.
    • 9 In Black v Scott (1830) 8 S 367 the possibility of an uncooperative debtor was recognised but not discussed.
    • 10 Similar to that found in the American Uniform Commercial Code. Cf UNCITRAL draft Convention on Assignment of Receivables in International Trade, 13 Mar 2001, A/CN.9/489, Annex to the draft Convention, “Priority based on registration”.
    • 11 H Kötz (ed), International Encyclopaedia of Comparative Law vol 7, ch 13, at 82, para 90.
    • 12 Home v Libberton (1491) Mor 3707; Balfour, Practicks, No 41, perhaps the oldest case in Morison's Dictionary. It involved a vagrant. Why anyone would want to sue a vagrant is perplexing.
    • 13 This seems to be the only instance where a court officer was required for intimation of an assignation. Cf the position in France: Code civil Art 1690 and Nouveau code de procédure civile Arts 651 et seq.
    • 14 This was an essential element: Gordon v Forbes (1681) Mor 3768; Preston v Sir John Clark (1715) Mor 3769.
    • 15 Issued by the court, for which see below.
    • 16 Quite how this worked in detail is obscure. Failure to read at the Market Cross was fatal (Christie v Jack (1631) Mor 3712; Ewing v Rochead (1681) Mor 3803) as was a failure to read at the Pier and Shore (Stewart v Achanay (1626) Mor 3803).
    • 17 Stair, Institutions, 4.38.16. See also Balfour, Practicks, No 305.
    • 18 Section 51.
    • 19 See G Watson (ed), Bell's Dictionary and Digest of the Law of Scotland, 7th edn (1890), “Supplement” and references there cited.
    • 20 The procedure was extended to the service of an arrestment in the hands of a party furth of Scotland by the Debtors (Scotland) Act 1838 (the “Personal Diligence Act”), s 18.
    • 21 The office of the Keeper of the Records was established by Court of Session (Records) Act 1815. It was abolished from 1839: Court of Session Act (No 2) 1838, ss 20 and 21. The responsibility thereafter passed to the Office of the Keeper of Edictal Citations and of the Minute Book.
    • 22 See Act of Sederunt 24 Dec 1838, s 7. An edictal citation served on the Keeper of the Records was held bad after the passing of the Act of Sederunt: Stephenson v Dunlop (1840) 2 D 1366.
    • 23 S R & O No 588 1929 made under Reorganisation of Offices (Scotland) Act 1928, s 8.
    • 24 Public Records (Scotland) Act 1937, s 13.
    • 25 Public Registers and Records (Scotland) Act 1948, s 1(3).
    • 26 W W McBryde, The Law of Contract in Scotland, 2nd edn (2001) para 12-125. Professor McBryde has now corrected this in his Second Cumulative Supplement (2003) para 12-124.
    • 27 Court of Session Act 1988, Sch 2. The recommendations for reform were published as an appendix to Scottish Law Commission Report No 111, 1988. There was no report as such however, just an appendix thereto containing the draft bill. Neither a discussion paper nor a memorandum preceded the report.
    • 28 The relevant law for service of summonses abroad is now to be found in RCS r 16.5.
    • 29 Act of Sederunt 24 Dec 1838, s 7.
    • 30 Cf MacKintosh's Trs v Davidson and Sharp (1898) 25 R 554; Morrison v Vallentine's Exrs 1907 SC 999; Young v Harper 1970 SC 174 OH.
    • 31 A simplified form is provided in the Transmission of Moveable Property (Scotland) Act 1862.
    • 32 Section 19(1). See W A Wilson and A G M Duncan, Trusts, Trustees and Executors, 2nd edn (1995) at para 22-30.
    • 33 Rules of the Court of Session, r 16.12(4).
    • 34 Rules of the Court of Session, r 16.12(5).
    • 35 See McBryde, Contract para 12-125 and textbooks cited at note 32.
    • 36 Rules of the Court of Session, r 16.5; Ordinary Cause Rules, r 5.5 and r 5.6. Both the Rules of the Court of Session and the Ordinary Cause Rules are available online at .
    • 37 Carter v McIntosh (1862) 24 D 925 at 934 per Lord Justice-Clerk Inglis.
    • 38 Stair, Institutions, 4.40.33. Cf Erskine, Institute, 3.4.3. An arrestee is now protected by statute: Debts Securities (Scotland) Act 1856, s 1, cited by W A Wilson, The Scottish Law of Debt 2nd edn (1991) para 17.5.
    • 39 See note 38 above.
    • 40 The doctrine of data certa is a feature of some continental European systems. Although there are few references to this doctrine in the Scottish sources, this must have been one of the motivations for the creation of the Books of Council and Session: see The Laws of Scotland: Stair Memorial Encyclopaedia vol 19 (1990), J Imrie, “Public registers and records”, para 839.
    • 41 Tod's Trs v Wilson (1869) 7 M 1100.
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