Perspectives on Contract Theory from a Mixed Legal System

摘要

In this article it is argued that Scottish contract theory retains distinctive features which are not shared with the Common Law. The origins of this theory lie in the ‘mixed' nature of its contract law, a mixture established principally through the writings of Stair. That mix is not merely the traditional mix of Roman and Common Law typical of mixed legal systems, but a mix also of natural law ideas with a respect for the rational and free choices of the parties. Respect for free will is seen not just in certain contractual rules such as the absence of a requirement of consideration, but in the existence of a separate obligation of unilateral promise. It is argued that the nature of Scottish contract theory lends itself more easily to defence of the will theory, and that there has been an absence of enthusiasm for the adoption of competing theories of contract in Scotland. It is suggested by way of conclusion that some of the benefits provided by the Scottish structure could be of use to future development of the Common Law, albeit that the Common Law has typically shown itself averse to legal borrowings from its nearest neighbour.