Influence of the European Ius Commune on the Scots law of Succession to Moveables: 1560-1700
Kotlyar, Ilya Andreevich
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The purpose of this thesis is to identify the influence of the doctrines of the Medieval European Ius Commune on the Scots law of moveable succession in the crucial period of its development: from the Reformation to approximately 1700. To this purpose, this research is dealing with the Scottish writings, case law and archival materials, comparing them with the relevant Civilian and Canonistic texts and treatises of Medieval and Early Modern Continental authors. This research specially concentrates on particular fields within the Scots law of succession. In some fields, such as the constitution and form of testamentary deeds and the destinations (tailzies), the Ius Commune influence was quite weak, but even there it is discernible in specific issues. The same can be said of the Scottish attitude to the agreements on future succession (pacta successoria); in this respect, as my thesis shows, Scots law used to have more in common with the Civil law than it has now. On the other hand, the influence of the Continental doctrines was much more noticeable in the fields of the evidential force of last wills and the donations mortis causa. However, beginning from the 1660s, Scottish practice in these fields diverged from the Continental models. This was due to various practical reasons. The regulation of the office of executor in Scotland in the 1500-1700, in many respects, seems to be heavily inspired by the Ius Commune regulation and by English practice of that time. In some respects, Scots practice on the office of executor followed the Ius Commune rules more closely than English practice. In summary, the influence of the Ius Commune on the Scots law of succession in this period was real, due both to the retaining of tradition of ecclesiastical jurisdiction and to the knowledge of doctrine by the judges and litigants. However, this influence was often fragmentary and not properly expressed in the litigation and writings.