Commercial Law C18CL

Introduction
This module will be taught by Zeenat
Beebeejaun.
Resume : MRPharmS (London, UK)
GDL (London, UK)
LPC (London, UK)
LLM - Commercial Law (London, UK)
 Launched in March 2013 of which I am
the Founder/CEO

www.pearlegaluae.com

Specialised in Commercial Law

- Company Law
- Intellectual Property & Patent
- Company Incorporation
- Entertainment Law
- Contract Review
Module overview

Part 1 An introduction to Scots Law

Part 2 Contract Law

Part 3 - Law of Agency

Part 4 Delict
Reading
G Black et al Business
Law in Scotland 2nd edition:
Chapters 1, 2, 4, 9, 10, 15.

The recommended reading

for each part of this module
will be covered in the tutorials
so please do attend!!
Plagiarism
As per HW rules, disciplinary action will be taken.

This applies to all forms of assessment.

Further info can be obtained at

www.hw.ac.uk/registry/Discipline.php

www.
hw.ac.uk/registry/resources/PlagiarismJiscNote.pdf

www.hw.ac.uk/registry/resources/PlagiarismGuide.p
df
Assessment
Exam (70%)
Course work submitted online via Vision
(30%)
A little bit of geography
Part 1. The Scottish Legal System

Historical Aspects:
Few legal systems can boast of a heritage quite as rich or diverse as the
Scottish. Built on foundations one thousand years old, it has been
drawn selectively from a wide variety of sources the independence
of Scots law has been assiduously guarded since the time of David I.
Even after Union with England in 1707, the Scottish legal system
retained its own distinctive character

Scottish Legal System Can Be Traced Back to the Iron Age

 Part 1. The Scottish Legal System
20th Century
Growing importance of 'precedent' and the expansion of statute into fields
previously governed by 'common law'.

Scottish legal system has moved further from the continental schools of legal
thought and this of course has left the field open to increased English legal
influence.

Legislation from the Westminster Parliament now expanded into almost every
area of traditional public and private law, with previously unregulated areas now
falling subject to closer statutory based control.

Establishment of The Scottish Parliament. The Scottish Parliament is a

unicameral Parliament and is based at Holyrood in Edinburgh. The Parliaments
power to legislate is confined to those matters not reserved to the Westminster
Parliament.
 Part 1. The Scottish Legal System
European Aspects
Post WWII (1939-1945) the UK joined the 'European Economic Community' in 1973. This
organisation was established via The Treaty of Rome 1957 in an attempt to safeguard both peace,
and economic stability throughout a war ravaged Europe.
Over the time this organisation has transformed itself from an economic entity based on the
desires of a single market (the ability to trade without restriction and penalty) to a political union
with an ever expanding jurisdiction over its member states.

Important Dates include:

The Treaty of Maastricht (7th February 1992) which came into force on the 1st November 1993,
established ' The European Union' whereby the EEC was integrated into a broader political and
institutional framework.
Part 1. The Scottish Legal System
The Human Rights Act 1998
It also became mandatory for any member state of the EU to enact national laws as per the
European Convention on Human Rights and Fundamental Freedoms.
The UK then introduced those rights in : The Human Rights Act 1998 and The Scotland Act 1998.
Example of Convention Rights:There are sixteen basic rights in the Human Rights Act,

all taken from the European Convention on Human Rights.

ARTICLE 6 -RIGHT TO A FAIR TRIAL
You have the right to a fair and public hearing within a reasonable period of time. This applies to both criminal charges against
you, or in sorting out cases concerning your civil rights and obligations. Hearings must be by an independent and impartial tribunal
established by law. It is possible to exclude the public from the hearing (though not the judgement) if that is necessary to protect
things like national security or public order.
If it is a criminal charge you are presumed innocent until proved guilty according to law and have certain guaranteed rights to
defend yourself.
Part 1. The Scottish Legal System
The nature of law
the body of principles and rules by which a society governs the conduct of its members and

.
institutions

The Classification of Law

Public law is concerned with those rules of law that relate to the state and the operation of
the bodies that govern the state. The area of public law is further subdivided into
Constitutional law, which comprises the rules that regulate the structure and broad functions
of the executive, legislative and judicial bodies that make up the organisation of the state;
Administrative law, which regulates the detail of the functions and powers of the various
organs of the state and the matters over which the state exercises control;
Criminal law, which consists of the legal rules relating to criminal conduct, that is conduct
which the state wishes to suppress and which is therefore prepared to punish.
Part 1. The Scottish Legal System
Private law is concerned with the legal rights and duties of individuals and organisations,
such as companies that are treated as persons for the purposes of the law. Like public law,
private law is also divided into subcategories.

The law of persons

The law of things
The law of obligations
The law of actions
Part 1. The Scottish Legal System
Formal Sources of Scots Law

Legislation
Judicial Precedent/Case Law
Authoritative Writings
Custom
Equity
Part 1. The Scottish Legal System
Legislation
Europe
Effectively there are four types of European Legislation that have binding force: Treaties
(primary legislation), Regulations, Directive and Decisions (secondary legislation)

Westminster
The UK Parliament
Legislation enacted by the UK parliament is known as a statute. This represents the will of
the highest law-making power in the UK the Queen in Parliament.

Note that the scope for Scotland only acts of the UK Parliament has been greatly reduced
by the advent for the newly devolved Scottish Parliament, which post 1998 has the
exclusive right to legislate for Scotland in a number of areas (i.e. those not reserved to
the UK Parliament)
Part 1. The Scottish Legal System
Scotland
The opening sentence of the first section of The Scotland Act 1998 declares "There shall be
a Scottish Parliament
The establishment of the new Scottish government is via the concept of 'Devolution' i.e. the
delegation of power from a central government to the local bodies concerned.
This means that the UK parliament retains the power to legislate on all matters both reserved and
devolved (The Scotland Act 98 section 28(7))
Examples of Reserved Matters include: Constitutional, UK Foreign Policy, Immigration and
Nationality, Legislation concerning Employment law etc.
Examples of Devolved Matters include: Health, Education and Training, Housing, Prisons,
Police and Fire services and Law and Home affairs, including the public prosecution
service, the courts and most aspects of criminal and civil law.
Part 1. The Scottish Legal System
Judicial Precedent

The second most important source of law after Legislation is referred to as 'Judicial Precedent' or
more commonly 'Case Law'. The underlying principle is that the court of law, when faced with a
decision which has previously been made by another court of higher status, will normally be 'bound' by
it. In formal Latin the principle is known as Stare Decisis or standing by decisions.
In order to be binding the decision must come from a senior court of higher status in the hierarchy of
courts.

At the top of the hierarchy comes the European Court of Justice whose decisions bind all the courts
and tribunals of the UK (although it reserves the right to depart from its own decisions).

The highest court in the UK, the UK Supreme Court, will only hand down binding precedents for
Scotland insofar as they relate to the interpretation of UK statutes or cases which come on appeal
from the highest civil court in Scotland i.e. the Court of Session.
Part 1. The Scottish Legal System
Authoritative Writings
Institutional writings are a source of Scots Law. They do provide authoritative statements of our legal
rights and duties. They are a source of the law because the courts have accorded them that status.
It is important to note that even these authoritative writings do not prevail against any subsequent
statute or precedent.

Custom
It has been used to describe a former trade practice which has become statutory or absorbed into
case law or
To show how the parties in agreeing the terms of a contract choose to incorporate a well-recognised
and understood principle of their trade.

Equity
Equity, as used in Scots Law can be considered as 'The Principle of Fairness'.
Court Hierarchy
Part 1. The Scottish Legal System
The Criminal Legal System
Criminal:
Justice of the Peace Courts
the lowest in the hierarchy of criminal courts were established via The Criminal Proceedings etc.
(Reform) (Scotland) Act 2007. They replaced District Courts on a phased basis and are administered
by the Scottish Court Service.
The common types of offences this court deals with include breach of the peace, assault, vandalism,
theft (but not housebreaking), speeding, TV licensing and electricity fraud and other miscellaneous
road traffic offences.
The Justice of the Peace Court can be described as a 'lay court' in that it is a justice of the peace
(who is generally a lay person or in other words not legally qualified) who sits. However the justice will
normally sit alongside a legally qualified clerk.
The exception to this may be found within Glasgow where there is stipendiary magistrates who are
legally qualified and have the same summary criminal jurisdiction and powers of a sheriff.
Part 1. The Scottish Legal System
The Sheriff Court
The Sheriff Court is generally regarded as the busiest court within the Scottish System, since it deals
with both Criminal and Civil matters

Since 1975 Scotland has been divided into six Sheriffdoms.

Summary Procedure
In summary cases the sheriff sits alone and decides both on points of law and questions of fact. In
addition to a full range of statutory orders available to him, the sentencing power of a sheriff when
sitting summarily extends to imposing of fines or a term of imprisonment.

Solemn Procedure
Solemn procedure is reserved for more serious offences. It is more costly, time consuming and
imposes harsher penalties. In solemn cases the sheriff sits with a jury of 15 people drawn from the
local community. The role of sheriff is to preside over the court and act as a judge of law, whereas the
jury alone decides questions of fact.
Part 1. The Scottish Legal System
The High Court of Justiciary

Established in 1672
Its jurisdiction extends to the whole of Scotland, including its territorial waters and outside Scotland in
relation to murder or culpable homicide by a Scottish subject.
The High Court may deal with all nature of crimes but it has 'Exclusive Jurisdiction' over the most
serious crimes e.g. rape, murder, treason and serious drug offences
Proceedings are conducted by the Lord Advocate or the Solicitor-General, (but generally on a day-to-
day basis it will be Advocate-Depute.
It sits as both a court of first instance and as a court of appeal
As a trial court it sits with one judge (normally a Lord/Lady Ordinary) and a jury of 15. The number of
jurors reflects the requirement that criminal matters must be judged 'Beyond Reasonable Doubt'.
Maximum penalties which the high court may impose is life imprisonment
Part 1. The Scottish Legal System
The Civil Court Structure
Sheriff Court - Civil
Types of cases heard by sheriff in civil capacity, may include Domestic/Family matters, Contractual
Disputes etc. effectively issues which are 'Private' in nature
Examples of remedies that the sheriff may grant include
Petitionary remedies i.e. for payment, delivery or implement of contract.
Declarators (except for nullity of marriage, and other status actions, but including divorce).
Part 1. The Scottish Legal System
1. Ordinary Actions
Ordinary cause procedure is not a distinct process defined in statute rather it is the standard for of
process and procedure carried out in any civil case brought in the sheriff court which cannot be taken
as a summary cause.

2. Summary Causes
Summary cause procedure was introduced to simplify and speed up court actions brought in respect
of relatively small amounts of money. Actions for payment of money, actions relating to heritable and
moveable property etc.

3. Small Claims
These were introduced in 1988 via The Small Claims (Scotland) Order 1988 and allow certain
actions up to 3,000. The procedure is designed to be simple and a less formal affair. It is intended to
encourage the parties to appear on their own behalf rather than being represented by a lawyer
Court of Session
Scotlands 'Supreme' Civil Court, located in Edinburgh and with Jurisdiction over the
Whole of Scotland.
The court is divided into The 'Inner House' and The 'Outer House', the former being
divided into the first and second division.
Part 1. The Scottish Legal System
The UK. Supreme Court
It is an independent institution, presided over by twelve independently appointed judges, known

as Justices of the Supreme Court.

The Supreme Court was officially opened at the start of the legal year in October 2009.
The final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales
and Northern Ireland
The Supreme Court hears appeals from the following courts in each jurisdiction:
England and Wales
The Court of Appeal, Civil Division
The Court of Appeal, Criminal Division
(in some limited cases) the High Court
Scotland
The Court of Session
Northern Ireland
The Court of Appeal in Northern Ireland
Part 1. The Scottish Legal System
The Legal Profession
Effectively we can split the legal profession into the day to day practitioners and the decision
makers.

Practitioners
Solicitor.
May be considered as general practitioners of law
Solicitors generally work within partnerships or as sole practitioners

Notary Public.
Main role is to bear witness to and certifying the validity of certain legal
documents
Part 1. The Scottish Legal System
Solicitor Advocate.
practicing solicitors, who by additional training and experience have applied for and been
granted rights of audience in one or more of the Supreme Courts.

Advocate.
These legal professionals are collectively referred to as the bar. The bar is a
specialised branch of the profession who have the rights of audience in all Scottish Courts.
Most advocates operate within the Faculty of Advocates, based in Parliament House in
Edinburgh.
Part 1. The Scottish Legal System
Queens Counsel.
This title is awarded to advocates and solicitor-advocates with at least 13years experience, considered
to have achieved distinction in full-time practice. Taking Silk or becoming a QC is seen as the gift of
the Monarch and is exercised through the First Minister upon recommendation by the Lord Justice-
General.

Advocates Deputes.
These professionals are advocates, employed by the Crown Office and Procurator Fiscal Service to
prosecute cases in The High Court. Advocate Depute, together with the Lord Advocate and Solicitor
General comprise Crown Counsel.
Part 1. The Scottish Legal System
Decision Makers
Judiciary
Judges in Scotland are drawn from the legal profession, the exception being Justices of The Peace.
Most appointments are made by the Monarch and are on the recommendation of the First Minister via
the advice of The Lord President and the Judicial Appointments board for Scotland.

Justice of the Peace.

Members of the general public and local community who are appointed by the Scottish government.

Sheriffs.
To be appointed a sheriff a person must be and have been an advocate or solicitor for at least

.
10years Once appointed a sheriff may remain in office until the compulsory retirement age of
70years old.
Part 1. The Scottish Legal System

Sheriff Principal.
Each Sheriff Principal presides over a particular Sheriffdom and carries out a number of administrative

functions in regard to the courts in that Sheriffdom.

Judges of the Supreme Courts of Scotland.

Those eligible for appointment include experienced advocates, usually QCs or a sheriff principal,
sheriff or solicitor-advocate with a minimum of 5 years experience.

A judge of the Supreme courts may resign at any time and must retire upon reaching the age of 70.
Part 1. The Scottish Legal System
Law Officers.
Lord Advocate
The Lord Advocate is the senior law officer in Scotland .
The Lord advocate effectively fulfils 4 main legal roles. These include being the head of the Crown
Office and Procurator Fiscal Service, being in charge of the system of prosecution and investigation of
deaths, being the chief legal advisor to the Scottish government and further will represent the Scottish
Executive in civil proceedings and represents the public interest in a range of statutory and common
law civil functions.

Solicitor General
This position represents the deputy of the Lord Advocate in the prosecution service. In the absence of
the Lord Advocate he will take over full responsibility for the exercise of the functions of the Lord
Advocate.
Part 1. The Scottish Legal System
Procurators Fiscal
Area and District Procurators Fiscal work within the Crown Office and Procurator Fiscal Service. They
prosecute crimes locally in the lower courts throughout Scotland on behalf of the Lord Advocate.

Advocate General
This office is a direct result of devolution. The Advocate General advises the UK government on
issues of Scots Law with respect to UK legislation and governance not devolved to Holyrood under
The Scotland Act 1998.
The Advocate General also has statutory functions under the Act relating to ensuring the devolved
institutions act intra vires. It is possible for the Advocate General to refer Bills of the Scottish
Parliament to the Supreme Court of the United Kingdom for decisions on their competence. Further he
is also given notice of any devolution issues raised in the courts and can intervene in such cases as
necessary.