IntroductionAll legal systems are the product of different influences. In this paper the legal systems of three jurisdictions are to be examined, with each of these states a hybrid of the Civil Law and Common Law legal traditions. These are the legal systems of Scotland, the Philippines, and the State of Louisiana in the United States. In particular, their similarities and differences are to be explored in this paper, particularly in the fields of property, contract, torts, and restitution.
The Scottish Legal SystemScotland has a legal system that is considered as a mixed or hybrid jurisdiction, which means that it exhibits, to an extensive degree, characteristics of both Civil and English Common Law legal traditions. The modern mixed legal system in Scotland is usually the product of the choice over a long period of time of what is best from the Civil and Common Law. Some scholars see “mixed” legal systems to be better than a legal system drawn exclusively from any one of these traditions. Civil law came to Scotland through a process called “reception”.
This is due to the influence that French (and later, Dutch) legal scholars, all trained in the Civil Law Tradition, had on early Scottish lawyers.
Because of the gap between Civil Law, which was taught in schools and indigenous law, which was actually applied in courts, Scottish law gradually began to adopt Civil Law principles and it is this process that is known as reception. Reception has caused several legal scholars to opine that Scots law is regarded as a system that is superior: “Scottish legal system is of peculiar excellence and enjoys a mysterious superiority to that found in all other jurisdictions.” In the words of Lord Cooper, it is the product of a long process of “critical picking and choosing, simplifying, adapting and rationalising” from the great legal traditions.
To this end, the Scottish legal system is unique. The Scot legal system is a small jurisdiction sitting between the two pillars of Western legal tradition. It has ancient basis in Roman law and grounded in uncodified civil law dating back to the Corpus Juris Civilis and it also features elements of common law with medieval sources. Therefore, it can be said that Scotland has a “mixed” legal system, comparable to that of South Africa, Louisiana, the Philippines, and Quebec. Because of this characteristic, the Scottish legal system can be considered in part separate from that of England and Wales. It has its own court system, which uses different terminology and a separate legal profession.
The Scottish legal system is in part separate from that of England and Wales. It has its own court system, which uses different terminology and a separate legal profession. The principal law officer is the Lord Advocate. The Court of Session is the supreme civil court, subject to appeal to the House of Lords, with most civil jurisdictions being dealt with in the sheriff courts. The supreme criminal court is the High Court of Justiciary, the lower courts are the sheriff courts and district courts. Part of this separate legal system is that Scotland has different laws on property than the rest of the United Kingdom.
Philippines Legal SystemThe Philippines can be considered as a bastard child of Asia. For three centuries, Spanish rule cemented property relations under the tenets of civil law, which the Spaniards adopted from Napoleonic France. After the United States seized control of these Islands in 1898 by virtue of the Treaty of Paris, the colonizers reshaped the legal system into one that mimicked the Anglo-American principle of common law. As a result, the Philippines can be considered as an area of mixed jurisdiction. Although civil law principles primarily govern; precedents, common law principles, and custom supplement the law of the land.
Louisana Legal SystemThe Territory of Orleans was sold by France to the United States when Napoleon sought to increase his war coffers in his quest to conquer Russia. Although the Code of Napoleon was enacted after what is now known as the Louisiana Purchase, most in what is now the State of Louisiana found disfavor with the Anglo-American legal system.This disfavor led the Legislature of the Territory of Orleans in 1806 to mandate that Louisiana would henceforth be governed by Romanist and Spanish Civil Law. At the time, Spanish Law was largely uncodified.
To resolve the confusion, the Legislature of the Territory of Orleans digested and codified the laws in force at the time, albeit with a few modifications. This became known as the Louisiana Civil Code of 1808. This was inspired largely by the Napoleonic Code. However, nothing in the Louisiana Civil Code of 1808 was mentioned about the role of precedent. As a result, when Louisiana became a State, it absorbed common law principles as well, which led many commentators to describe Louisiana as “a civil law island in a common law sea.”
PropertyThe Scottish view on Property is rather restricted: Property in Scots law is the largest right that a person can have in a thing. This is in contrast with the view held in other jurisdictions, especially with regard to ownership. In Scots law, land can never be owned in the sense of an owner. What are afforded are rights that may or may not be exclusive as against others. Ownership, as the concept is known and comprehended in other jurisdictions, is exercised against personal property and not against realty. As such, when speaking of the rights contemplated by such ownership in Scots law, the same is referred to as absolute interests in land.
This can be traced partly to the feudal form of land ownership that existed in Scotland until 2003 such that Scots land law had oft been described as one of the most feudal systems of landholding still in existence, and as such the concept of land ownership is closer to the concept of state ownership and territory as against private ownership, through which an aristocracy may have been said to be established.
In 2003 the Land Reform (Scotland) Act entered into effect and though converting the underlying legal principles to post-feudalistic times, it has since come into criticism by virtue of the requirement of sale to make its provisions effective and, in the words of one critic, “half of Scotland has been off the market for over 100 years.”
On the other hand, Philippines and Louisiana laws on Property are concerned with that body of law that governs all matter susceptible of appropriation, including the rights and obligations that flow therefrom. This is a legal concept inherited from the traditions of the Spanish Civil Code and the American concept of property. Because of this difference in the scope of the notion of property, the parallel structures with regard to the law on property are found in different areas of the Philippine Civil Code and may or may not necessarily relate to the discussion on Property per se.
Some writers have noted that this difference in attitude reflects on the advice given by legal counsel to property owners in these jurisdictions. In Scots law, as the only rights one may exercise over property are rights that must be granted by law, barristers and solicitors tend to be more conservative when dealing with an ambiguity or vacuum in the law and argue that the right does not exist. In contrast, in Louisiana and in the Philippines, which is influenced by the American concept of property, an ambiguity or vacuum in the law will be interpreted by legal scholars there more favourably toward the property-owner and points toward the existence of the legal right.
However, and as noted by some legal scholars, this difference in approach does not diminish from the scope of the rights granted. Subject to some exceptions, all jurisdictions grant the right to possession of the property from the sky to the center of the earth as well as a right to everything above the surface. The extent of the Scots law is explained by writers in this manner:
Scots law, like American law, states that initially a landowner has the right to exclusive possession from the sky to the center of the earth; he has a common-law right to everything above the surface, and to all minerals and other substances in a strict vertical line between his surface and the center of the earth.
Large writes that another area of significant deviation results from the difference in constitutional restrictions on the legislative power in Scotland as compared to that of Louisiana and the Philippines, and as such there lie differences in the principles of: (1) regalia; (2) land tenure; (3) recording title to land; and (4) control of land use and development.
Regalia refers to the rights that the sovereign retains in private property. In Scotland, the sovereign (the Crown) reserves rights over precious metals (i.e. gold and silver), and by legislative fiat, over coal which belongs to the National Coal Board. All other minerals are said to belong to the owner of the land on which it is found. Included in the concept of minerals on property are rights to fish wild fish on riparian property, which Scots law considers as inherent in ownership.
On the other hand, in Philippine law, all minerals, even if found on private property, belong to the State. Article XII, Section 2 provides, “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.” As such, there is no distinction between precious metals and other metals that may be retrieved from the soil.
There is no parallel concept in Louisiana law, or in American law in general.
The holding of private land under Scots law is based on the Regalian Doctrine, which mandates that all land belongs to the King, and each landholder’s right derives from a grant made by the King, with the grant of such land referred to as a ‘feu’. However, there originally was no limit to the number of new grants that may be made by the feu-holders. Therefore, the actual possessors of the land were many stages removed from those feu-holders who received the grant from the King. This feudal nature of the system persisted until the passage of Land Reform (Scotland) Act 2003. This mandated not only the registration of property, but also enabled those who actually possessed the land to purchase the same. 
As regards recording title to land, title registration is governed by Land Registration (Sc.) Act 1979, which establishes a title registration system and the Land Register of Scotland, administered by the Keeper of the Registers. Decisions of the Keeper as regards registration may be appealed to the Lands Tribunal for Scotland, whose decisions in turn may be appealed to the Court of Session.
However, this registration is not compulsory on the interest-holder in land, and the holding of title is not compulsory and as such, entry of the transaction into the Register of Sasines, which is equivalent to symbolic delivery in Scots law, is sufficient to transfer title by symbolic delivery. As such, registration with the Land Register of Scotland does not, by itself, conclusively establish title in a person.
Philippine law recognizes the Regalian doctrine as part of its Spanish heritage. However, as the Philippines is a Republic, all lands not covered by title are considered as belonging to the sovereign, which in this case, is the State. In the Philippines, title registration confers rights on the title-holder such as indefeasibility of title.
As regards land control use and development, Scots law grants greater power to Parliament to expropriate property for public use because of the nature of the power vested in Parliament. In Large’s words, “courts lack the power to declare statutes unconstitutional as takings of property, Parliament has much greater power to effect its purposes relating to land use without worrying about whether the Act will be voided because it impinges unduly on property values.”
On the other hand, in Philippine law, expropriation is governed by the Philippines Constitution which mandates that just compensation must be paid upon the taking of private property, and that the judiciary has the power of judicial review over all acts of government, including the taking of private property. As such, the courts may set aside expropriation acts that may be found to be unjust or illegal.
Section 4 of the Louisiana Constitution similarly provides for the payment of just compensation for any taking of private property for public purpose:
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.
Contract LawIn Scots law, a contract is formed when an offer meets an unequivocal acceptance. This is then considered as a legally binding obligation. A promise can also be considered as a legally binding obligation, as no consideration is required before the same can be said to be legally binding. Further, a contract is deemed to embody all the terms and conditions agreed to in the negotiation of the contract, but extrinsic evidence may be presented to prove terms and conditions that are merely implied under the contract.
Under the Contract (Scotland) Act, if there is a declaration in the same contract that the terms and conditions do represent the intentions of the parties, then there can be no extrinsic proof to prove deviation from the terms and conditions as written in the contract. Applying Scots law on contracts therefore to sales of land, a contract for the purchase of land is complete upon the receipt of the buyer’s written offer with the subsequent written acceptance of the solicitor or agent of the seller.
In case the contract is breached, the offended party may choose to use self-help (such as suspending future obligations under the contract) or seek redress from courts of law by having a judge order that the obligation be fulfilled, with damages to the offended party. In any case, actions arising from breach must be instituted within five years.
There are then two classes of defective contracts in Scotland: void and voidable contracts. Void contracts are said to not exist, as there is a factor that prevents its formation. On the other hand, when the contract is voidable, the contract is said to have been procured through questionable means, which may be challenged in court. In general, for the contract to be invalid there must be either force and fear, fraud, facility and circumvention (that is, taking advantage of the weakened mental state of another), undue influence, and error, which refers to that degree of mistake that affected the ability of one or both parties to contract.
Philippines law follows a restricted view of contracts found in the Spanish Civil Code which we have preserved. In its derivative sense, the word “contract” (cum traho) simply means an agreement or convention. It must be noted, however, that a contract is not exactly synonymous with a convention. Contracts are limited exclusively to those agreements which produce patrimonial obligations. It is clear that “convention” is the genus; “contract” is the specie.
A contract may be defined as a juridical convention manifested in legal form, by virtue of which one or more persons bind themselves in favor of another or others, or reciprocally, to the fulfillment of a prestation to give, to do, or not to do. From the very definition of a contract, it is evident that two parties must exist for a contract to exist. This must be added to the requirements of consent, object certain, and cause.
Consequently, a person cannot enter into a contract with himself. As such, Philippine law mandates that no contract is present unless these three requisites concur: consent of the contracting parties; object certain which is the subject matter of the contract; and cause of the obligation which is established.
Vices of consent in a contract may be divided into two kinds: vices of the will, which comprehends mistake, violence, intimidation, undue influence, and fraud; and vices of declaration, which comprehends all of the forms of simulation of contracts. The presence of any of these vices makes a contract voidable in Philippines law.
As to objects of the contract, as a general rule, all things or services may be the object of contracts. However, it is essential that the following requisites must concur:
· The object should be within the commerce of men. In other words, it should be susceptible of appropriation and transmissible from one person to another.
· The object should be real or possible; in other words, it should exist at the moment of the celebration of the contract, or at least, it can exist in the future.
· The object should be licit; it should not be contrary to law, morals, good customs, public order or public policy.
· The object should be determinate, or at least determinable as to its kind.
Any object not falling under the enumeration that is subject of a contract renders that contract void in Philippines law.
Finally, the cause is the why of the contract or the essential reason which moves the contracting parties to enter into the contract. It is the immediate, direct or more proximate reason which explains and justifies the creation of an obligation thorough the will of the contracting parties.
In this jurisdiction, cause and consideration are used interchangeably. However, cause of causa is a broader concept in civil law than the consideration in common law jurisdictions.
Cause must not be confused with the object of a contract. The cause for each contracting party is the prestation or the promise of a thing or service by the other, while the object of the contract is the thing or service itself. The legality or illegality of the motives behind the cause will not affect the existence of a contract. However, the motive may be regarded as the cause when the contract is conditioned upon the attainment of the motive of either of the contracting party. In other words, motive becomes cause when it predetermined the purpose of the contract.
Louisiana follows the Philippine view of a contract, and defines it as an agreement by two or more parties whereby obligations are created, modified, or extinguished. Absence of or lack of legal capacity will void a contract.
Laws of Delict and RestitutionThere are two basic notions about wrongs: first, a wrong-doer must pay because he has done wrong, and an innocent person damaged must be made whole (reparation).
In Scotland, there must be fault or breach before one may be made liable for harm. As a result, one must be able to point toward a specific legal obligation or right that has been infringed before one may sue for delicts. This strict view in general has led Scots law to make void provisions in a contract that require a buyer contracting for the sale of property to have the contract voided or nullified before he may take action against the seller.
This has led some writers to opine that “the law of delict, and especially the law of negligence, often have the feeling of the common law, although a common law which has itself been influenced by civil law ideas.” The leading case in this field is Donoghue v. Stevenson, a decision of the House of Lords, which holds that those who may be affected by the actions of an individual has standing to sue in tort.
Scots enrichment law, on the other hand, focuses on returning parties to their pre-exchange position. As a broader concept, it covers the legal principles of payment by mistake, quasi-contract, and quantum meruit. This derives from the common law principle that injury is the sole cause of action. Wrongful acts are not actionable as long as there was no damage done. In many cases, a verdict can only give nominal damages, which is equivalent to losing the suit. If a penal element is recognized, it comes none too often.
Philippines law, as in all Civil Law countries that trace its Penal Codes to Spain, makes a distinction between delicts (delitos) and quasi-delicts (quasi-delitos). Delicts, strictly speaking are covered under criminal law in the Philippines and refer to wrongs arising out of criminal felonies. Quasi-delicts, on the other hand, refer to harm arising from negligence and are a more proper analogue to the concept of delicts in Scots law. The difficulty of torts in Philippines law is brought about by the overlapping fields of liability. In US law, the tort spectrum is so large that it operates as a catch-all for liabilities that may otherwise be unclassified. Because Philippines law requires that there be positive identification of a legal obligation in a general law, the scope of quasi-delicts is necessarily limited. Under Philippines law, “whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict.”
As regards quasi-contracts, a whole section in the Philippine New Civil Code is dedicated to the topic in Philippines law, which recognizes the same as a separate source of legal obligations. As a general rule, two general kinds of quasi-contracts are recognized: solutio indebiti, where a person unduly delivers a thing through mistake to another who has no right to demand the same; and negotiorum gestio, where a person voluntarily takes charge of the agency or management of the business or property of another without any power or authority from the latter.
Negotiorum Gestio is defined in Philippines law as a quasi-contract that should not be performed for profit. If the property is abandoned or neglected and if the manager is not authorized by the owner, a quasi–contract arises. Any person who voluntarily takes charge of the agency or management of the business or property of another shall continue the same until the termination of the affair and its incidents (the owner demands he stops); or if he requires the owner to substitute if he is a position to do so. If the property is not abandoned, all acts and contracts entered into by the officious manager shall be unenforceable.
Solutio indebiti, on the other hand, refers to an instance where something is received when there is no right to demand it, and it was unduly delivered through mistake, generally involves a mistake in fact. However, a mistake of law is allowed if the mistake is brought about by the construction or application of a doubtful or difficult question of law.
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 Herman, S. 2004, Book Review: A History Of Private Law In Scotland. by Kenneth Reid & Reinhard Zimmermann. Oxford University Press 2000. Volume I (552 pages), Volume II (748 pages), Tulane Law Review, vol. 78 pp. 1755 Evans-Jones, R. 1998, Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law, Law Quarterly Review, pp. 228-249 Because of the failure of early Scottish institutions of higher learning to institute effective legal training, the first Scottish lawyers had to travel to France (and later to the Netherlands) for their legal education. See Robinson, O.F., Fergus, T.D, and Gordon W.M., 1985 Introduction to European Legal History, pp. 377 supra note 2. Brian D. Osborne and Ronald Armstrong (1996) at p. 100. — Scotch Obsessions Evans-Jones, supra note 2. Scots Law – Wikipedia, the free encyclopedia, Available at http://en.wikipedia.org/wiki/Scots_Law McGonigle, Ryan, The Role of Precedents in Mixed Jurisdictions: A Comparative Analysis of Louisiana and the Philippines, Vol. 6.2 Electronic Journal of Comparative Law, (July 2002), at http://www.ejcl.org/62/art62-1.html (last accessed October 9, 2004), citing Cesar Lapuz Villanueva, Comparative Study of the Judicial Role and Its Effect on the Theory of Judicial Precedents in the Philippine Hybrid Legal System, (65 Phil.L.J. 42, 42 ) [hereinafter McGonigle, Role of Precedent] Art. 8, New Civil Code. McGonigle, Role of Precedent, citing Shael, Herman, et. al. The Louisiana Civil Code: A Humanistic Appraisal, (unpublished manuscript, Tulane Law School), in The Role of Precedents in Mixed Jurisdictions Mixed Jurisdictions: A Comparative Analysis of Louisiana and the Philippines. Marshall, E. 1982 General Principles of Scots Law.. Id. Law Scotland, Dictionary of Scottish Land Law Terms, Available at http://www.scottishlaw.org.uk/lawscotland/abscotslawland.html Large, D. The Land Law Of Scotland–A Comparison With American And English Concepts, 17 Envt’l L. 1 (1986) Who owns Scotland? www.whoownsscotland.org.uk Large, D. The Land Law Of Scotland–A Comparison With American And English Concepts, 17 Envt’l L. 1 (1986) Id. Id. Id. Id. Id. Land Reform (Scotland) Act 2003. 1979 Stat. ch. 33 The Register of Sasines was established in 1617. 17 Envt’l L. 1 Id. Article VIII, Section 1. Philippine Constitution Douglas, S. 2006, An Insight Into Scots Contract Law and Other Obligations. Contract (Scotland) Act 1995 Under the Requirements of Writing (Scotland) Act 1995, all contracts for the sale of land must be evidenced in writing and may be signed by or on behalf of each party. Douglas, S. An Insight Into Scots Contract Law and Other Obligations (2006) Id. Id. Art. 1317, Philippines New Civil Code Art. 1906, Louisiana Civil Code Art. 2176, Philippines New Civil Code