Scottish Law Commission Consultation on Projects to be included in the Eighth Programme of Law Reform

The Scottish Law Commission ("SLC") is currently consulting on the projects to be included within its Eighth Programme of Law Reform. The SLC's intention is to submit the Eighth Programme to Scottish Ministers for approval by the end of 2009.

 A number of projects will be carried over from the Seventh Programme of Law Reform to the Eighth, namely: –

1. Assignation of, and security over, incorporeal moveables;

2. Trust law issues relating to the rules on the accumulation of income and the rules governing long-term private trusts;

3. Provocation, self-defence, coercion and necessity; and

4. Evidential issues relating to the admissibility of evidence of bad character or of previous convictions, the admissibility of similar fact evidence, and the Moorov doctrine.

A number of potential projects have been suggested to the SLC and are being actively considered for the purposes of the Eighth Programme. The projects which fall within the field of commercial law (broadly construed) are as follows:

1. The law of heritable security;

2. The possibility of introducing a non-possessory form of security over corporate moveables;

3. Proprietary effects of leases, i.e. to what extent does the constitution of a contract of lease crate a real right and what is the relationship between that real right and the underlying personal right?

4. Separate tenements, such as mineral rights and salmon fishing rights;

5. Whether it is desirable to preserve the doctrine of tacit relocation in the context of commercial leasing;

6. The law of prescription in relation to property rights;

7. The criminal liability of partnerships, particularly the position post-dissolution of the partnership.

8. The potential for the statutory codification of Scots contract law, based on the Draft Common Frame of Reference ("DCFR"). The DCFR is a European-wide project to draft principles, definitions and model rules that might form a basis for codification of the law on a Europe wide basis; and

9. Reform of the law of prescription generally.

A number of consultees have posted suggestions on the SLC's website – see http://www.scotlawcom.gov.uk/html/eighth_programme.php. In the commercial law arena, one suggestion raised is that the law of diligence should be consolidated in statutory form. From the writer's perspective, it would be desirable if the law of hire of corporeal moveables formed part of the Eighth Programme, since it is comprised of a mixture of Scots common law, the Consumer Credit Act 1974 and the Supply of Goods and Services Act 1982 and sometimes the rules appear to overlap. The writer would also note that the contract of hire is one of the nominate contracts included within the DCFR – Book IV, Part B.

The consultation ends on 31st July 2009, so there is still plenty of time to make a contribution to the debate.

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