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MacLeod, J. (2009)
Publisher: Edinburgh University Press
Languages: English
Types: Article
A discussion of the time at which an inhibition takes effect by reference to their character and traditional method of execution.
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    • 5 Paras 15, 18. See OBG at paras 174-180 per Lord Nicholls of Birkenhead.
    • 6 See, most recently, Advice Centre for Mortgages v McNicoll [2006] CSOH 58, 2006 SLT 591 and Gibson v Royal Bank of Scotland [2009] CSOH 14.
    • 7 See e.g. S Wortley, “Double sales and the offside trap: some thoughts on the rule penalising private knowledge of a prior right” 2002 JR 291; R G Anderson, Assignation (2008) paras 11-04-11-30; D L Carey Miller with D Irvine, Corporeal Moveables in Scots Law, 2nd edn (2005) para 8.31.
    • 8 But cf Gibson v Royal Bank of Scotland [2009] CSOH 14 at para 43 per Lord Emslie.
    • 9 Cf Gibson v Royal Bank of Scotland at paras 44-47 per Lord Emslie.
    • 10 K G C Reid, The Law of Property in Scotland (1996) para 695.
    • 11 Advice Centre for Mortgages v McNicoll 2006 SLT 591 at paras 47-48. Lord Drummond Young held that there was no such breach where X's right was a mere option to purchase in a lease. It could be argued, however, that a grant to Z in such circumstances is anticipatory breach. See Synge v Synge [1894] 1 QB 466; Omnium d'Enterprise v Sutherland [1919] 1 KB 618; Universal Cargo Carriers Corp v Citati (No 1) [1957] 2 QB 401; W M Gloag, The Law of Contract, 2nd edn (1929) 600-601; H Beale (ed), Chitty on Contracts, 29th edn (2004) paras 24-028-24-030; G H Treitel, The Law of Contract, 12th edn by E Peel (2007) para 17-075.
    • 12 Advice Centre for Mortgages at para 45 per Lord Drummond Young.
    • 13 See Gibson v Royal Bank of Scotland [2009] CSOH 14 at para 40 per Lord Emslie.
    • 14 OBG emphasised that this, rather than the protection of economic interests, lies at the heart of inducing breach of contract: OBG Ltd v Allan [2008] 1 AC 1 at para 8 per Lord Hoffmann.
    • 15 Global Resources Group at para 15; Advice Centre for Mortgages at para 48.
    • 16 Stair, Inst 1.9.2.
    • 17 D M Walker, The Law of Civil Remedies in Scotland (1974) 234; D Maxwell, The Practice of the Court of Session (1980) 83. Interdict was granted against breach of the South African equivalent of the offside goals rule in Wahloo Sand Bk v Trustees, Hambly Parker Trust 2002 (2) SA 776 and Harley v Upward Spiral 1196 CC 2006 (4) SA 597.
    • 18 See R G Anderson, Assignation (2008) paras 11-06-11-23.
    • 19 G Lubbe, “A doctrine in search of a theory: reflections on the so-called doctrine of notice in South Africa” 1997 Acta Juridica 246 and authorities cited therein, particularly at n 4.
    • 20 Lord Shand did make reference to the English rules as Lord Ordinary in Stodart v Dalzell (1876) 4 R 236 at 241.
    • 21 Statute of Labourers 1351.
    • 22 G H Jones, “Per Quod Servitum Amisit” (1958) 74 LQR 39 (esp at 50-53), cited by Lord Hoffmann in OBG at para 4. The action on the case developed out of trespass into a general action for miscellaneous wrongs: see F W Maitland, The Forms of Action at Common Law, 2nd edn by A H Chaytor and W H Whittaker (1968) Lecture VI.
    • 23 In OBG cases from Australia, Canada and America were among the “[n]early 350 reported decisions and academic writings . . . placed before the House” but the only Scottish cases were Donoghue v Stevenson 1932 SC (HL) 31 and Crofter Hand Woven Harris Tweed Co Ltd v Veitch 1942 SC (HL) 1. The latter was decided on the basis of English authorities.
    • 12 Para 52.
    • 13 See Goldberg, Causation and Risk in the Law of Torts (n 9) 105.
    • 14 L Lasagna and S R Shulman, “Bendectin and the language of causation” in K R Foster, D E Bernstein and P W Huber (eds), Phantom Risk: Scientific Inference and the Law (1993) 112.
    • 15 See Dingley v Chief Constable, Strathclyde Police 1998 SC 548 at 555 per the Lord President (Rodger) and at 604 per Lord Prosser; McTear v Imperial Tobacco Ltd 2005 2 SC 1 at para 5.11 per Lord Nimmo Smith.
    • 16 Main v McAndrew Wormald Ltd 1988 SLT 141 at 142 per the Lord Justice-Clerk (Ross).
    • 17 Smith at para 18, citing Davie v Magistrates of Edinburgh 1953 SC 34 at 40.
    • 18 1998 SC 548.
    • 19 The issue in Dingley was whether trauma in general or whiplash injury in particular could ever trigger the onset of multiple sclerosis. In the absence of such proof, the pursuer was unable to establish a causal connection between the pursuer's whiplash injury in a road traffic incident and the subsequent onset of multiple sclerosis: Dingley at 86 and 93.
    • 20 Although concurring in the result, they approached the reasoning in different ways: see Dingley at 601-602 per the Lord President (Rodger), at 618-620 per Lord Prosser, and at 634 per Lord Caplan.
    • 21 Smith at para 26.
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