Ius Commune Lectures on European Private Law, I The lus Commune Lectures on European Private Law are published under the auspices of the lus Commune Research School. This Research School consists of the Law faculties directed towards research in the field of European Private Law and related subject Maastricht University, Utrecht University and the Catholic University of leuven, and Associated members of the School are the Law faculty of the Free University Amsterdam, the Law Faculty of the Universite de liege and individual members of the University of amsterdam 口sP SCOTS LAW AND THE ROAD TO THE NEW IUS COMMUNE Hector L. MacQueen! Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any source.Readers are permitted to make copies, electronically or prinmted, for person e form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating lassroom use When a Scottish lawyer comes to Utrecht, he thinks at once of his eighteenth-century redecessor, James Boswell, the biographer of Dr Samuel Johnson. Boswell was in a gloomy Professor ofPrivate Law, University of Edinburgh. This paper was first presented in lectures at the Universities of Utrecht and Amsterdam on 27 October and 17 November 1997. In revised form it was subsequently presented at the Joint Study Institute of the American Association of Law Librarians, the British and Irish Association of Law Librarians and the Canadian Association of Law Librarians held in the Faculty of Law, University of Cambridge on 6 September 1998. I am grateful to all those who attended these presentations for stimulating comment and questions
Ius Commune Lectures on European Private Law, 1 The Ius Commune Lectures on European Private Law are published under the auspices of the Ius Commune Research School. This Research School consists of the Law Faculties of Maastricht University, Utrecht University and the Catholic University of Leuven, and is directed towards research in the field of European Private Law and related subjects. Associated members of the School are the Law Faculty of the Free University Amsterdam, the Law Faculty of the Université de Liège and individual members of the University of Amsterdam. SCOTS LAW AND THE ROAD TO THE NEW IUS COMMUNE Hector L. MacQueen1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. When a Scottish lawyer comes to Utrecht, he thinks at once of his eighteenth-century predecessor, James Boswell, the biographer of Dr Samuel Johnson. Boswell was in a gloomy 1Professor of Private Law, University of Edinburgh. This paper was first presented in lectures at the Universities of Utrecht and Amsterdam on 27 October and 17 November 1997. In revised form it was subsequently presented at the Joint Study Institute of the American Association of Law Librarians, the British and Irish Association of Law Librarians and the Canadian Association of Law Librarians held in the Faculty of Law, University of Cambridge on 6 September 1998. I am grateful to all those who attended these presentations for stimulating comment and questions
frame of mind when he arrived in the town to study law at the University in September 1763 and this seems to have quickly turned to depression, as he wrote to Johnson: 2 I arrived at Utrecht on a Saturday evening. I went to the Nouveau Chateau d'Anvers. I was shown up to a high bedroom with old furniture, where I had to sit and be fed by myself. At every hour the bells of the great tower played a dreary psalm tune. a deep melancholy seized upon me. I groaned with the idea of living all winter in so shocking a place.. I sunk quite into despair. I thought that at length the time was come that I should grow mad. I actually believed myself so. I went out to the streets, and even in public could not refrain from groaning and weeping bitterly .. Tortured in this manner I determ ined to leave utrecht i am glad to say that later boswell returned to his studies in Utrecht where he also d to conduct a literary friendship with Belle de Zuylen(perhaps better known as Madame Charriere a novelist in French)and a love affair with the widowed Madam geelvinck I can Iso report that, even though unexciting tunes still ring out from the Dom Kerk, teaching European contract law at Utrecht has been one of the most enjoyable and stimulating experiences of my academic career. Perhaps however one would get closer to Boswells perspective by asking the students whom I taught whether the course drove them out into the city streets to indulge in public as well as private grief Boswells presence in Utrecht reflects a crucial aspect of the history of Scots law. In that history influences from the Common Law of England have been unavoidable from the beginning and waxed particularly strong after the Union of the Parliaments of the two kingdoms, with a common legislature, final court of appeal(the House of Lords), and the familiarity which comes from proximity, accessibility and a common language. But unlike English law, Scots law was also open from the very beginning to what was to become the Continental European ius commune(common law ). The substance of the law was much affected by the universal law of the church(the canon law )and the roman or Civil law taught in the Continental universities at which until the eighteenth century many Scots lawyers underwent their initial legal education. A further effect was that when Scots lawyers wrote treatises on their law, they used the systematics and concepts of the learned laws of Europe, further reinforcing its ius commune characteristics. If this Civilian dimension weakened after the 1707 Union, and in particular from the victorian era on, Scots law nonetheless remains significantly distinct from that of England and in comparative law terms it is correctly classified as a mixed system. 3 In 1924 the distinguished French comparatist Professor Levy Ulmann observed that"Scots law gives us a picture of what will be some day the law of the civilised nations, namely a equally distinguished German comparatists, Professors Zweigert and Kotz, wrote (in the o combination between the Anglo-Saxon and the Continental system'.4 Fifty years later tw translation of Tony Weir) it is clear that Scots law deserves particular attention from comparative lawyers as a special stance of the sym biosis of the English and Continental legal traditions; this may be of some 2J Wain(ed), The Journals of James Boswell 1762-1795(London, 1991), pp 82-83. See also his letter to William Temple, ibid, pp 83-84(Utrecht is a most dismal place) sFor a more detailed survey with literature references see H L Mac Queen, Mixture or muddle? Teachingand research in Scottish legal history,(1997)5 Zeitschrift fair Europaisches Privatrecht 369-84 4H Levy-UImann(trans F P Walton), The law of Scotland, (1925)37 Juridical Review, at p 390
frame of mind when he arrived in the town to study law at the University in September 1763, and this seems to have quickly turned to depression, as he wrote to Johnson:2 I arrived at Utrecht on a Saturday evening. I went to the Nouveau Château d’Anvers. I was shown up to a high bedroom with old furniture, where I had to sit and be fed by myself. At every hour the bells of the great tower played a dreary psalm tune. A deep melancholy seized upon me. I groaned with the idea of living all winter in so shocking a place. . . . I sunk quite into despair. I thought that at length the time was come that I should grow mad. I actually believed myself so. I went out to the streets, and even in public could not refrain from groaning and weeping bitterly. . . . Tortured in this manner I determined to leave Utrecht . . . I am glad to say that later Boswell returned to his studies in Utrecht, where he also managed to conduct a literary friendship with Belle de Zuylen (perhaps better known as Madame Charriere, a novelist in French) and a love affair with the widowed Madam Geelvinck. I can also report that, even though unexciting tunes still ring out from the Dom Kerk, teaching European contract law at Utrecht has been one of the most enjoyable and stimulating experiences of my academic career. Perhaps however one would get closer to Boswell’s perspective by asking the students whom I taught whether the course drove them out into the city streets to indulge in public as well as private grief. Boswell’s presence in Utrecht reflects a crucial aspect of the history of Scots law. In that history influences from the Common Law of England have been unavoidable from the beginning and waxed particularly strong after the Union of the Parliaments of the two kingdoms, with a common legislature, final court of appeal (the House of Lords), and the familiarity which comes from proximity, accessibility and a common language. But unlike English law, Scots law was also open from the very beginning to what was to become the Continental European ius commune (common law). The substance of the law was much affected by the universal law of the church (the canon law) and the Roman or Civil law taught in the Continental universities at which until the eighteenth century many Scots lawyers underwent their initial legal education. A further effect was that when Scots lawyers wrote treatises on their law, they used the systematics and concepts of the learned laws of Europe, further reinforcing its ius commune characteristics. If this Civilian dimension weakened after the 1707 Union, and in particular from the Victorian era on, Scots law nonetheless remains significantly distinct from that of England, and in comparative law terms it is correctly classified as a ‘mixed’ system.3 In 1924 the distinguished French comparatist Professor Lévy Ullmann observed that ‘Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system’.4 Fifty years later two equally distinguished German comparatists, Professors Zweigert and Kötz, wrote (in the translation of Tony Weir): . . . it is clear that Scots law deserves particular attention from comparative lawyers as a special instance of the symbiosis of the English and Continental legal traditions; this may be of some 2 J Wain (ed), The Journals of James Boswell 1762-1795 (London, 1991), pp. 82-83. See also his letter to William Temple, ibid, pp. 83-84 (‘Utrecht is a most dismal place’). 3For a more detailed survey with literature references see H L MacQueen, ‘Mixture or muddle? Teaching and research in Scottish legal history’, (1997) 5 Zeitschrift für Europäisches Privatrecht 369-84. 4H Lévy-Ullmann (trans F P Walton), ‘The law of Scotland’, (1925) 37 Juridical Review, at p. 390
assistance to those who em bark on the great project of the future, namely to procure a gradua approximation of Civil Law and Common Law. 5 However, it is, I think, fair to say that despite these very flattering remarks Scots law has not in fact received much attention from comparative lawyers outside Scotland itself 6 Thus it not altogether surprising to find that, in the recent renaissance of interest in the idea of harmonising and unifying the private law of Europe, perhaps even in the form of a European Civil Code, relatively little attention has been given to Scots law as a potential model for (in the words of Zweigert and Kotz)a gradual approximation of the Civil Law and Common Law. Indeed Scots lawyers themselves seem at times to lack faith in the merits of being a mixed system and to see only a future of gradual assimilation within the Common Law. 7 The first argument which I want to offer today, therefore, is that more heed should be given to the words of Levy Ullmann, Zweigert and Kotz by those following the road to what sometimes described as the new ius commune of Europe Indeed I would go further and should receive attention in this regard. 8 The argument is based upon an analysis of the g suggest that it is not only Scots law, but also the world's other mixed legal systems whi outcome so far of the new ius commune project in which I have been involved myself, namely the Commission on European Contract Law chaired by Professor Ole Lando. The Commission is a private initiative, with a membership drawn from all the legal systems in the European Union. I have been the Scottish representative since 1995, when I succeeded the late Professor W AWilson. The aim of the Commission is the production of a set of rules the Principles of European Contract Law-which will represent an ideal system of contract The intellectual origin of the Principles lies in the successful conclusion in 1980 of the Vienna Convention on the International Sale of Goods (CiSG), which includes a number of rules on general contract law reconciling the conflicting traditions of the Common and the Civil Law. 1o But CISG applies only to sale contracts, and one aim of the Lando commission sK Zweigert and H Kotz, Introduction to Comparative Law, trans T Weir, 3rd edn( Oxford, 1998), p. 204. The statement also appeared in the first and second editions 6But see H David, Introduction a l'etude du droit ecossais(Paris, 1972)and H Weber, Einfihrung in das hottische Recht(Darmstadt, 1978 ). Other non-Scots to write extensively about Scots law include Klaus Lu Cologne)and Peter Birks(Oxford ) Recently Reinhard Zimmermann(Regensburg) and a numberof South African scholars have begun to take a comparative interest in Scots law 7See most recently R Evans-Jones, Receptions of law, mixed legal systems and the myth of the genius of Scots private law,(1998)1 14 Law Quarterly Review (LQr)228-249 8For a recent collection on mixed legal systems see E Orucu, E Attwooll and S Coyle(eds), Studies in Legal Systems: Mixed and Mixing(The Hague, London and Boston, 1996). Note Orucu's comments at ibid, pp 350-51: Mixed systems can be regarded as points of reconciliation and as models of the symbiosis of legal systems. They may even be depicted as the ideal systems" of the future.. They have not yet become the ideal systems of the future as was hoped, however. 9The Principles(henceforth PECL) are only partly published. Part I(Performance, Non-performance and Remedies)appeared in 1995(0 Lando and H Beale(eds ) Principles of European Contract Law Dordrecht, London, Boston, 1995). This Part has now been revised and another Part, dealing with formation, a gency validity, interpretation, contents and effects, has been added and published under the same editorship in late 1999. A final Part Ill is now in preparation 10For the text of CISG see F D Rose(ed), Blackstone's Statutes on Commercial and Consumer Law 1997-8 ( London,1997),pp.468-85
assistance to those who embark on the great project of the future, namely to procure a gradual approximation of Civil Law and Common Law.5 However, it is, I think, fair to say that despite these very flattering remarks Scots law has not in fact received much attention from comparative lawyers outside Scotland itself.6 Thus it is not altogether surprising to find that, in the recent renaissance of interest in the idea of harmonising and unifying the private law of Europe, perhaps even in the form of a European Civil Code, relatively little attention has been given to Scots law as a potential model for (in the words of Zweigert and Kötz) ‘a gradual approximation of the Civil Law and Common Law’. Indeed Scots lawyers themselves seem at times to lack faith in the merits of being a mixed system and to see only a future of gradual assimilation within the Common Law.7 The first argument which I want to offer today, therefore, is that more heed should be given to the words of Lévy Ullmann, Zweigert and Kötz by those following the road to what is sometimes described as the new ius commune of Europe. Indeed I would go further and suggest that it is not only Scots law, but also the world’s other mixed legal systems which should receive attention in this regard.8 The argument is based upon an analysis of the outcome so far of the new ius commune project in which I have been involved myself, namely the Commission on European Contract Law chaired by Professor Ole Lando. The Commission is a private initiative, with a membership drawn from all the legal systems in the European Union. I have been the Scottish representative since 1995, when I succeeded the late Professor W A Wilson. The aim of the Commission is the production of a set of rules - the Principles of European Contract Law - which will represent an ideal system of contract law.9 The intellectual origin of the Principles lies in the successful conclusion in 1980 of the Vienna Convention on the International Sale of Goods (CISG), which includes a number of rules on general contract law reconciling the conflicting traditions of the Common and the Civil Law.10 But CISG applies only to sale contracts, and one aim of the Lando Commission 5K Zweigert and H Kötz, Introduction to Comparative Law, trans T Weir, 3rd edn (Oxford, 1998), p. 204. The statement also appeared in the first and second editions. 6But see H David, Introduction a l’étude du droit écossais (Paris, 1972) and H Weber, Einführung in das schottische Recht (Darmstadt, 1978). Other non-Scots to write extensively about Scots law include Klaus Luig (Cologne) and Peter Birks (Oxford). Recently Reinhard Zimmermann (Regensburg) and a number of South African scholars have begun to take a comparative interest in Scots law. 7See most recently R Evans-Jones, ‘Receptions of law, mixed legal systems and the myth of the genius of Scots private law’, (1998) 114 Law Quarterly Review (LQR) 228-249. 8For a recent collection on mixed legal systems see E Örücü, E Attwooll and S Coyle (eds), Studies in Legal Systems: Mixed and Mixing (The Hague, London and Boston, 1996). Note Örücü’s comments at ibid, pp. 350-51: ‘Mixed systems can be regarded as points of reconciliation and as models of the symbiosis of legal systems. They may even be depicted as the “ideal systems” of the future. . . . They have not yet become the ideal systems of the future as was hoped, however.’ 9The Principles (henceforth PECL) are only partly published. Part I (Performance, Non -performance and Remedies) appeared in 1995 (O Lando and H Beale (eds.), Principles of European Contract Law (Dordrecht, London, Boston, 1995). This Part has now been revised and another Part, dealing with formation, agency, validity, interpretation, contents and effects, has been added and published under the same editorship in late 1999. A final Part III is now in preparation. 10For the text of CISG see F D Rose (ed), Blackstone’s Statutes on Commercial and Consumer Law 1997-8 (London, 1997), pp. 468-85
is to create a system for all contracts in the context of the European Union. A similar objective with regard to the global marketplace has been successfully pursued by Unidroit, the International Institute for the Unification of Law, which published its Principles of International Commercial Contracts in 1994.11 Although the very similar Unidroit and Lando Principles may one day be the basis for the contract law of a unified Europe, that is not their immediate goal. They are also designed to be capable of adoption by contracting parties engaging in cross-border transactions but anxious not to tie them to particular systems for purposes of either the applicable law or dispute settlement. The Principles may thus take effect in international commercial arbitrations. They are also expected to influence law reform in the member states and by the European Community itself, and to be a basis for teaching in the law schools. 12 The work of the Lando Commission is now drawing to a conclusion, and its next to final meeting was in what I hope was the appropriate setting of Edinburgh in January 1999. The time is therefore ripe to examine its results and to consider how far they reflect the position in the Scots law of contract. My approach will be to draw attention to some major rules in the Principles which can be said to approximate to those of the modern Scots law of contract but on which there are significant divisions between the approaches of the Civil Law and the Common Law. I will divide the discussion accord ing to whether the rules are of civilian or Common Law origin A. Rules of civilian origin 1. No consideration-the unilateral promi The Principles state that a contract is concluded if (a )the parties intend to be legally bound and(b) they reach a sufficient agreement. There is no further requirement. (Art 2: 101). Thus the English requirement of consideration(to say nothing of the French cause) plays no part in the Principles, any more than it does in Scots or German law. 13 One consequence in Scots law is the enforceability of the unilateral or gratuitous promise; 14 and likewise the Principles hold that a promise which is intended to be legally binding without acceptance is binding(Art 2: 107) 2. Irrevocable offers and postal acceptances I UNIDROIT, Principles ofIntemational Commercial Contracts( Rome, 1994).See MJ Bonell, An International Restatement of Contract Law: the UNIDROIT Principles of Intemational Commercial Contra cts, 2nd revised ed (Irvington, NY, 1997) 12See H Beale, Towards a law of contract for Europe: the work of the Commission on European Contract Law' in G. Weick(ed), National and European Law on the Threshold to the Single Market(Frankfurt am Main, 1993), idem, The Europeanisation" of contract law,, in R Halson(ed ) Exploring the boundaries ofcontract Dartmouth, 1996), pp 23-47 IFor the comparative position see Zweigert and Kotz, pp. 389-99 I4See most recently WW McBryde, Promises in Scots law,( 1993)42 International and Comparative Lau Quarterly 48-66
is to create a system for all contracts in the context of the European Union. A similar objective with regard to the global marketplace has been successfully pursued by Unidroit, the International Institute for the Unification of Law, which published its Principles of International Commercial Contracts in 1994.11 Although the very similar Unidroit and Lando Principles may one day be the basis for the contract law of a unified Europe, that is not their immediate goal. They are also designed to be capable of adoption by contracting parties engaging in cross-border transactions but anxious not to tie them to particular systems for purposes of either the applicable law or dispute settlement. The Principles may thus take effect in international commercial arbitrations. They are also expected to influence law reform in the member states and by the European Community itself, and to be a basis for teaching in the law schools.12 The work of the Lando Commission is now drawing to a conclusion, and its next to final meeting was in what I hope was the appropriate setting of Edinburgh in January 1999. The time is therefore ripe to examine its results and to consider how far they reflect the position in the Scots law of contract. My approach will be to draw attention to some major rules in the Principles which can be said to approximate to those of the modern Scots law of contract but on which there are significant divisions between the approaches of the Civil Law and the Common Law. I will divide the discussion according to whether the rules are of Civilian or Common Law origin. A. Rules of Civilian origin 1. No consideration - the unilateral promise The Principles state that a contract is concluded if (a) the parties intend to be legally bound and (b) they reach a sufficient agreement. There is no further requirement. (Art 2:101). Thus the English requirement of consideration (to say nothing of the French cause) plays no part in the Principles, any more than it does in Scots or German law.13 One consequence in Scots law is the enforceability of the unilateral or gratuitous promise;14 and likewise the Principles hold that ‘a promise which is intended to be legally binding without acceptance is binding’(Art 2:107). 2. Irrevocable offers and postal acceptances 11UNIDROIT, Principles of International Commercial Contracts (Rome, 1994). See M J Bonell, An International Restatement of Contract Law: the UNIDROIT Principles of International Commercial Contra cts, 2nd revised ed (Irvington, NY, 1997). 12See H Beale, ‘Towards a law of contract for Europe: the work of the Commission on European Contract Law’, in G. Weick (ed), National and European Law on the Threshold to the Single Market (Frankfurt am Main, 1993); idem, ‘The “Europeanisation” of contract law’, in R Halson (ed.), Exploring the Boundaries of Contract (Dartmouth, 1996), pp. 23-47. 13For the comparative position see Zweigert and Kötz, pp. 389-99. 14See most recently W W McBryde, ‘Promises in Scots law’, (1993) 42 International and Comparative Law Quarterly 48-66
The Principles, while stating a general proposition that offers are revocable, allow them to be made irrevocable by an ind ication to that effect(Art 2: 202 ) The Scots law concept of promise allows a party to make offers irrevocable or"firm' by an appropriate statement in th offer. 1 In French law offers are revocable but nonetheless an offeree may have a claim in damages if the offeror abuses his right, while in germany offers are irrevocable unless otherwise stated. Offers are al ways revocable in English law, however, unless the offeree provides consideration. The problems which this limitation creates are overcome to some extent by the distinctive rule of English law, under which a postal acceptance concludes a contract at the time and place of posting rather than when and where it is communicated to the offeror. 16 This rule has also been received into scots law although the scottish law Commission has recommended its abolition in a report published in 1993. 17 Given that the Principles start on the basis that offers are revocable, it has to do something to protect offerees where the parties are not dealing face to face, the solution is to provide that offers can no longer be revoked once the offeree has dispatched an acceptance(Art 2: 202(1), but the contract is not concluded until the acceptance reaches the offeror(Art 2: 205(1) 3. Contracts for the benefit of third parties The Principles follow the Continental and Scots legal systems in recognising that contracting parties may create enforceable rights for third parties by appropriate terms in their contract (Art 6: 110).18 English law by contrast starts from the doctrine of privity, under which only benefit racting parties can acquire rights under a contract, even if they intend to confer a Commission was the need for English law to be brought into harmony with the approach a o pon a third party. The Law Commission of England and Wales produced a report this subject in 1996, recommending the abandonment of privity and the introduction of a stem of third party rights. 19 Signif icantly, one of the reasons for this change given by elsewhere in Europe 4. Performance as the primary right of a creditor The Principles provide a range of remedies for breach of contract, or non-performance, as the Lando Commission has preferred to term the matter. First among them is the aggrieved partys entitlement, or right, to specific performance of the other party's obligation(Art 9: 102(1). Here again the model being followed is that of the Continental systems, 20 and under Scots law too the cred itor's primary remedy is an order for specific implement. 21 In I5WWMcBryde, The Law ofContract in Scotland(Edinburgh, 1987)pp 65, 68-70; The Laws ofscotland Stair Memorial Encyclopaedia(Edinburgh, 1987-1996, henceforth SME), vol 15, para 617 16For all the foregoing see Zweigert and Kotz, pp. 356-64 17Report on Formation of Contract: Scottish Law and the United Nations Convention on Contracts forthe nternational Sale of Goods( Scot Law Com No 144, 1993) 18For third party rights in Scotland see SME, vol 15, paras 824-52; for the Continent Zweigert and Kotz, pp 456-69 Report on Privity of Contract: Contracts for the Benefit of Third Parties ( Law Com No 242, 1996) oZweigert and Kotz, pp. 472-79 G H Tre itel, Remedies for Breach of Contract: a comparative account(Oxford, 1988),pp 43-63(note also pp. 71-74 on mixed systems 2IMcBryde, pp. 509-14 See also A D Smith, "Some comparative aspects of specific implement in Scots law
The Principles, while stating a general proposition that offers are revocable, allow them to be made irrevocable by an indication to that effect (Art 2:202). The Scots law concept of promise allows a party to make offers irrevocable or ‘firm’ by an appropriate statement in the offer.15 In French law offers are revocable but nonetheless an offeree may have a claim in damages if the offeror abuses his right, while in Germany offers are irrevocable unless otherwise stated. Offers are always revocable in English law, however, unless the offeree provides consideration. The problems which this limitation creates are overcome to some extent by the distinctive rule of English law, under which a postal acceptance concludes a contract at the time and place of posting rather than when and where it is communicated to the offeror.16 This rule has also been received into Scots law, although the Scottish Law Commission has recommended its abolition in a report published in 1993.17 Given that the Principles start on the basis that offers are revocable, it has to do something to protect offerees where the parties are not dealing face to face; the solution is to provide that offers can no longer be revoked once the offeree has dispatched an acceptance (Art 2:202(1)), but the contract is not concluded until the acceptance reaches the offeror (Art 2:205(1)). 3. Contracts for the benefit of third parties The Principles follow the Continental and Scots legal systems in recognising that contracting parties may create enforceable rights for third parties by appropriate terms in their contract (Art 6:110).18 English law by contrast starts from the doctrine of privity, under which only the contracting parties can acquire rights under a contract, even if they intend to confer a benefit upon a third party. The Law Commission of England and Wales produced a report on this subject in 1996, recommending the abandonment of privity and the introduction of a system of third party rights.19 Significantly, one of the reasons for this change given by the Commission was the need for English law to be brought into harmony with the approach elsewhere in Europe. 4. Performance as the primary right of a creditor The Principles provide a range of remedies for breach of contract, or non-performance, as the Lando Commission has preferred to term the matter. First among them is the aggrieved party’s entitlement, or right, to specific performance of the other party’s obligation (Art 9:102(1)). Here again the model being followed is that of the Continental systems,20 and under Scots law too the creditor’s primary remedy is an order for specific implement.21 In 15W W McBryde, The Law of Contract in Scotland (Edinburgh, 1987) pp. 65, 68-70; The Laws of Scotland: Stair Memorial Encyclopaedia (Edinburgh, 1987-1996, henceforth SME), vol 15, para 617. 16For all the foregoing see Zweigert and Kötz, pp. 356-64. 17Report on Formation of Contract: Scottish Law and the United Nations Convention on Contracts for the International Sale of Goods (Scot Law Com No 144, 1993). 18For third party rights in Scotland see SME, vol 15, paras 824-52; for the Continent Zweigert and Kötz, pp. 456-69. 19Report on Privity of Contract: Contracts for the Benefit of Third Parties (Law Com No 242, 1996). 20Zweigert and Kötz, pp. 472-79; G H Treitel, Remedies for Breach of Contract: a comparative account (Oxford, 1988), pp. 43-63 (note also pp. 71-74 on mixed systems). 21McBryde, pp. 509-14. See also A D Smith, ‘Some comparative aspects of specific implement in Scots law’