By Dr Chathuni Jayathilaka and Prof Gwen Seabourne, Centre for Law and Historical Research (University of Bristol Law School)
Although based in England, the Law School is home to experts on a variety of different jurisdictions – for example, Dr Chathuni Jayathilaka, who teaches contract, commercial comparative and Roman law is a specialist on Scots private law and Scots Legal History. She has recently published a monograph entitled Sale and the Implied Warranty of Soundness and here, she explains it to Gwen Seabourne of the Centre for Law and History Research.
GS: So, Chathuni, tell us about your new book (with translation for common lawyers!). It’s about a topic in Scots private law, isn’t it?
CJ: Yes. Sale and the Implied Warranty of Soundness deals with an under-researched area of Scots law: the common law contract of sale. This contract, which still regulates transactions featuring real property (i.e. land) and intangible property, has been subjected to little analysis in the past two centuries. The last book on this topic, Mungo Brown’s A Treatise on the Law of Sale, was published almost 200 years ago, in 1821.
As a result, there are a number of gaps in knowledge in this area. One of the major issues is that the default rules which apply under the Scots common law contract of sale have never been coherently systematised. Another is that it is not clear whether the same default rules applied to all contracts of sale, regardless of whether the property involved was real, personal or intangible. Historically, a number of the default rules developed exclusively through case law featuring one type of property, and there is disagreement about whether such rules apply to transactions featuring other types of property.
GS: What aspect of the contract of sale does your book focus on?
My book examines whether the contract of sale was unified, in the sense that the same default terms applied regardless of the type of property involved. It does this through the study of a specific default term – the implied warranty of quality – and its application across contracts of sale for personal, real and intangible property.
This warranty, which is a guarantee given by the seller that the subject of the sale is not defective at the time of the transaction, was developed exclusively in the context of case law featuring personal property. Historically, there has been considerable debate about whether the warranty applied to contracts of sale for real property. The question of its application to incorporeal property had never been explored. This is the gap that my book seeks to fill. It begins by setting out the substantive content of the warranty; and then in later chapters, it examines the warranty’s application to real property and intangible property.
GS: Sale is clearly a very important transaction. Why do you think this has not been analysed much in the past?
I think there are a couple of reasons. First, Scots private law is generally under-researched. The number of gaps in knowledge far outweigh the number of researchers working in the field of Scots private law. This happens to be one of those areas no one had gotten to yet.
I also think that the lack of research in this area is one of the consequences which flowed from that fact that in 1894, the law governing contracts of sale in Scotland was split. On 1 January 1894, the Sale of Goods Act 1893, a statute which largely codified the existing English common law in that area, came into force in all parts of the UK. In Scotland, this effectively anglicised the law underlying contracts of sale for goods. Contracts of sale for real and intangible property meanwhile continued to be governed by the extant Scots common law. Much of the subsequent academic discussion on sale focuses on the Sale of Goods Act and the case law that developed around it. Comparatively little attention is given to the Scots common law of sale.
GS: How did you go about examining the warranty’s application to real and intangible property, and what did you find?
With both real and intangible property, I began by examining the historical primary and secondary sources on the topic. This meant looking through institutional and other juristic texts to examine their views on the issue; or where they did not overtly express a view, to examine their discussions of the warranty to try and gauge what their view might have been. I also looked for case law on the topic. This last was a bit difficult, because of course, the point is that there were not any known cases in which the warranty was applied to real or intangible property. So, a lot of time was spent systematically looking through the indexes of case reports to try and identify any relevant cases; and searching for terms related to the warranty on databases which contained Scottish cases.
What I found in relation to real property was that institutional and juristic writers either did not address the question of the warranty’s application to this type of property, or if they did, they took differing positions. In examining case law, I discovered that there were a small number of cases featuring latent defects in sales of real property, but that the warranty was not invoked in any of these cases. My next question was why these buyers did not invoke the implied warranty of quality. I looked at a few possibilities and concluded that there were a number of factors which contributed to this, such as a lack of familiarity with the warranty which led its conflation with the implied warranty of title, and the unsuitability of the remedy available under the warranty.
Exploring the question of the warranty’s application to intangible property was a more difficult prospect. In examining juristic texts, I found that there was little discussion of the contract of sale in relation to intangible property, and no discussion whatsoever of the implied warranty of quality in this context. There were no cases dealing with the application of the warranty to intangible property, and only one case in which latent defects are mentioned in the context of a sale transaction featuring intangible property. Given these gaps in the primary and secondary sources, I had to take a more theoretical approach. I chose five specific types of intangible property – goodwill, computer software, shares, copyright and patents – and examined whether the warranty could be of practical use to sale transactions featuring such property. I found that the warranty was not as relevant to intangible property as it was to personal property. The nature of this type of property means that there is less scope for latent qualitative defects to arise. This scope also varies across different types of incorporeal property: the warranty is more relevant to some types than to others.
GS: Tell me about the warranty of soundness – does that come in with livestock sales (lots of the old English cases are about horses)?
Yes, the case law in this area deals overwhelmingly with the sale of defective horses. In fact, so many of the cases I looked at for this project dealt with horses that the editor of this blog (who has the office adjacent to mine) always jokingly asks me how my research on horse law is going.
It is not particularly surprising that so many of the cases deal with horses. Horses had great economic significance in the seventeenth and eighteenth centuries – they provided the dominant mode of transportation and were deeply important to the agrarian economy. They were also expensive enough that litigation was seen as worthwhile when something went wrong with the transaction.
GS: What are the main sources for research like this? What is helpful and difficult about them? It would be interesting to know how they differ from the common law sources our students will know.
There are the usual primary and secondary sources – case law, legislation, juristic texts. There are also sources that a common lawyer might be less familiar with. In Scotland, we recognise an additional source of formal law: institutional writings. These are lengthy treatises which conduct a systematic, comprehensive overview of an area of law. Scots law recognises a number of such institutional writers, the majority of whom were active during the seventeenth and eighteenth centuries.
The sources present a number of difficulties. For example, the older case reports can be sparse, often only stretching to a few lines or half a page. The older reports tend to focus on the parties’ arguments, and then provide the decision –the judges’ reasoning is usually not included. Sometimes, the parties’ arguments are also incomplete, so that two different reports of the same case might appear to slightly contradict one another. This means that with these older cases, you are generally working with an incomplete picture and trying to put the pieces together as best you can.
It can be helpful in these circumstances to track down the Session Papers for the case in question. Session Papers contain the written pleadings in cases which came before the Court of Session. They often contain much more information regarding the facts of the case and the arguments of the parties than the case reports do, so can be valuable. There are practical difficulties in tracking down Session Papers however: many of the collections are not indexed (although this is changing), so the particular case you are looking for might be untraceable. The vast majority of Session Papers are not digitised so they can only be accessed in person: this means travelling to Edinburgh and arranging access with the holding library.
There are other difficulties in this type of research. Older sources can use language or terminology that you are not familiar with, so it can be difficult to work out what is being said. Sometimes, a source you need to consult might be handwritten and you might struggle to parse the handwriting. Other times, a relevant source may be a rare manuscript. During the course of my research, I spent three whole days in the National Records of Scotland, pouring over the Process Papers for a nineteenth century case. The manuscript was rare and so I was unable to make copies of it. Instead, I sat in the special collections reading room over three consecutive days, reading the writing through a magnifying glass one of the librarians had lent me, and transcribing the papers in their entirety so I could analyse them later. Such work can be painstaking and dull at times, but there is also the excitement of the possible ‘treasure’ you may find!
GS: Thank you Chathuni, and we look forward to seeing more of your archival treasure hunts and historical enquiries into Scots law at Centre for Law and History Research events.
Chathuni Jayathilaka is a founding member of the Centre for Law and History Research at Bristol University Law School. This centre highlights the need for historical perspectives in legal scholarship and promotes excellent research (like this!) into the varied histories of law. http://www.bristol.ac.uk/law/centre-for-law-and-history-research/