Comparative And Historical Essays In Scots Law

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The 'false god' held up in that case was the principle that, in Lord Watson's words, 'no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious'.

I am aware that the phrase 'in aemulationem vicini' was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. The law of Scotland, if it differs in that, is in all other respects the same with the law of England. the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due'.

Although the doctrine may have existed in the jurisprudence and doctrine of the Civil Law systems of the eighteenth century, one could hardly call it systematised there at that time, and indeed in France it has to this day not been codified.

Even in the Civil Law systems where it has now been translated to modern codified provisions, these are typically so bland as to be meaningless without reference to case-law.

There is a series of further, perhaps less well-known, cases in the early years of the twentieth century in which the authority of , a case concerning the delict of conspiracy, again in relation to an industrial dispute.

In the House of Lords, the Lord Chancellor, Viscount Simon, asserted without challenge that, as far as interference with trade was concerned, there was no difference between Scots law and the English law of Tort.

Bankton then drew a distinction between actions which cause direct damage to a neighbour and those which only 'deprive of a benefit': 'There is a great difference between one's suffering damage, and his being precluded from a benefit or conveniency which he was formerly using.' While direct damage was generally actionable, actions which merely deprived of a benefit were not, and that expressly included operations which obstruct a neighbour's light or prospect. act wantonly, with the mere purpose of producing inconvenience and loss to his neighbour but these are all terms which have caused considerable controversy and voluminous discussion in the literature on the Civilian abuse of rights doctrine.

Kames also drew a distinction between actions which caused direct harm to neighbours (which were not permitted and to which malice was not particularly relevant - or relevant presumably only as an exacerbating factor) and those which caused consequential damage. In order to understand what malice meant, and the level of intention required before the landowner was stopped from doing what he chose with his property, the case-law from the same period must be examined.

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