Table of contents
- (1) Distinguishing Mistakes
- (2) Absence of Consideration
- (3) Drawbacks of the Birksian Scheme
- (4) Conclusion
This article discusses, by reference to Scotland, the problems of codifying a mixed system of private law, presenting an outline of some parts in a draft civil code. A civil code must resolve divergence between Civil Law and Common Law concepts. Such divergence is demonstrated here by reference to the conceptual conflict between the Scots (Civil) law of error and the English (Common) Law of misrepresentation. The article outlines how codified provisions in this area might be drafted. It discusses the German, French, Swiss and Austrian rules (the last being remarkably similar to Scots law), and offers possible Common Law and Civil Law-style codifications of the Scots law of error. As Scots statutes follow the Common Law drafting style, it is argued that they are unsuitable for comprehensive codification. A code in a Civilian style, on the other hand, requires the adoption of Civilian statutory interpretation, but as this is inconsistent with Scots legal culture, the final question raised is whether codification of Scots private law is desirable at all.
“The Law is not only the basis for all civilised intercourse; it forms part of our life as an important cultural phenomenon. The solutions developed in a particular system may serve as useful models for other systems. The problems are, after all, often identical. Though the ways in which they are solved may be different, the outcome is mostly the same or similar. Arguments derived from comparative law are thus nowadays increasingly accepted in construing and applying one’s own law.”2