Date: Mon, 30 Apr 2007 13:23

From: Donald Macdonald

Subject: Small but perfectly formed cases

Regarding the discussion recently about cases which have had disproportionately large influence in comparison to their brevity: from a Scottish perspective the case which takes the biscuit (or oatcake) has to be Stirling v Earl of Lauderdale (1733), on unjustified enrichment. The report was "condictio indebiti sustained to one who paid errore juris". That's it. Its unparalleled brevity helped Lord Brougham, in a subtly nuanced (and obiter) rant in two Scottish House of Lords appeals in 1830 and 1831, to dismiss the decision as flawed, and foist the "no restitution for error in law" rule on Scotland. Conversely, again its brevity encouraged academic writers in the 1990s, and subsequently the Court of Session in the Morgan Guaranty case in 1995, to go behind the report and examine the printed pleadings (preserved in the National Register of Archives and in Advocates' Library) to unearth the civilian arguments in the case and demonstrate clearly that the report was correct and represented the true state of Scots law at that time (and then to revert to that position in line with the recent trend in other jurisdictions).

Ross Macdonald
University of Dundee

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