Scottish Law Commission Eighth Programme of Law Reform

On 8 June in this blog David Cabrelli helpfully summarised the projects which the Scottish Law Commission were intending to include in their Eighth programme of law reform.  He also noted the suggestions they had received.  Today is the last day for comments.  This blogger posted some comments today, one of which is reproduced below (comments do not appear immediately on the SLC site).  For the rest of us, there's still time to upload a request for the SLC to consider your "pet hate" in Scots Law! 

"I would also strongly support the suggestion that the Commission consider criminal law relating to partnerships.  The root of the difficulties experienced by the Crown in Balmer & ors v Her Majesty’s Advocate [2008] ScotHC HCJAC 44 was s38 of the Partnership Act 1890.  The extent of this section is subject to an unacceptably high degree of doubt.  This was illustrated very clearly by Lord Reed in Duncan v The MFV Marigold PD145 & ors 2006 CSOH 128, 2006 SLT 975.  We are simply not clear on the powers of the partners following dissolution of the partnership.  Are the powers simply a continuation of agency power, or do they mean that the partnership has some residual existence? The section has been interpreted as permitting some new transactions, for example, the sale of partnership assets, even though that seems to conflict with the actual wording of the section.  As suggested by Lord Reed, there may be a difference between the law of Scotland and England here, which is to be avoided in an area such as partnership.  The doubt surrounding s38 has contributed to the difficulties in prosecuting partners, but it is also causing unacceptable difficulties in commercial law in seeking to assess what partners are and are not entitled to do in the context of winding up the partnership.  Of course, these difficulties could have been avoided if the scheme suggested by the Scottish Law Commission in their report of 2003 had been enacted, but we continue to wait (possibly in vain?) for progress on that front."  

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