THE DOCTRINE OF ABUSE OF RIGHTS Perspective from a Mixed Jurisdiction E 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. Contents 1. Scots lawyers a-whoring after strange god 3. Aemulatio vicini in the scots institutional writers 4. Aemulatio vicini in the case-law alse od for English law? 6. Mixed urisdictions 7. Comparative conclusions 1. Scots lawyers a-whoring after strange gods we in Scotland have gone a-whoring after some very strange gods. This colourful assertion was made by one of Scotlands most distinguished twentieth-century jurists and comparative lawyers, Sir Thomas Smith, in his inaugural lecture at the University of Edinburgh in 1958. Smith was one of the key figures in the rediscovery of the distinctiveness of Scots law as a mixed legal system, and he devoted much of his writing to uncovering its Civilian elements. Smith s evangelical vision (and graphic turn of phrase) encompassed many areas of private law, but the profanity instanced here was the denial of the principle of aemulatio vicini (or what is popularly but not very happily called abuse of rights). Smith's assumption was that the place of abuse of rights in Scots law should be acknowledged in order to secure a further element of the Civil law tradition Hitherto. Scots law had failed to use the spadework of the Scots Institutional- writers to build a civil
THE DOCTRINE OF ABUSE OF RIGHTS: Perspective from a Mixed Jurisdiction Elspeth Reid(1) 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. Contents 1. Scots lawyers a-whoring after strange gods 2. Rejection of aemulatio vicini: A strange god? 3. Aemulatio vicini in the Scots Institutional writers 4. Aemulatio vicini in the case-law 5. A false god for English law? 6. Mixed jurisdictions 7. Comparative conclusions Notes 1. Scots lawyers a-whoring after strange gods 'Alas . . . we in Scotland have gone a-whoring after some very strange gods.' This colourful assertion was made by one of Scotland's most distinguished twentieth-century jurists and comparative lawyers, Sir Thomas Smith, in his inaugural lecture at the University of Edinburgh in 1958.(2) Smith was one of the key figures in the rediscovery of the distinctiveness of Scots law as a mixed legal system, and he devoted much of his writing to uncovering its Civilian elements. Smith's evangelical vision (and graphic turn of phrase) encompassed many areas of private law, but the profanity instanced here was the denial of 'the principle of aemulatio vicini (or what is popularly but not very happily called 'abuse of rights')'.(3) Smith's assumption was that the place of abuse of rights in Scots law should be acknowledged in order to secure a further element of the Civil Law tradition. Hitherto, Scots law had failed to use the 'spadework' of the Scots Institutional(4) writers to build a Civil
Code in the early nineteenth century, and thus the principles of the evolved Civil Law had not become fully related and systematised Instead the Scots had succumbed to the pressures and blandishments of English legal doctrine' and this had been 'to the detriment of [their law.comparativelawcouldhoweverredresstheresultantdistortions by taking cross-bearings on her position from other so-called "mixed systems'. Thus Smith urged the teachers of the Civil Law in Scottish universities -as the fideicommissaries of the past and fiduciaries for the future's-that they had a' special duty to denounce the strange god and to preach a return to purer doctrine. The first question raised by this rousing rhetoric is whether in fact a doctrine of abuse of rights belongs within the legal tradition of Scotland as a mixed jurisdiction. 2. Rejection of aemulatio vicini: a strange god? The doctrine of aemulatio vicini, bracketed by Smith with abuse of rights encompasses the general principle that no one should exercise what is otherwise a legitimate right in a way which is solely motivated by the de esire ause annoyance to his or her neighbour Typically it is found in the context of neighbourhood law: if, for example, one discovers that a neighbours house is served by a pipe leading under one's own garden, one is not entitled to cut off the supply, even in the absence of a servitude right(easement), when there is no legitimate reason for doing Smith had singled out this particular area of law because of what he saw as the insensitive treatment of aemulatio vicini by the courts over the years: Scots law had been gravely compromised by incautious ad hoc references to“ common law” solutions’.皿 In smith' s account,the difficulties began with the reasoning applied by Lord Watson(a Scottish Law Lord) in the well-known nineteenth-century House of Lords English case, Mayor of Bradford v Pickles. The ' false god held up in that case was the principle that, in Lord Watsons words, no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicic In adopting this principle for English law, their Lordships had been fortified by lord Watson s observation that the aemulatio vicini doctrine had in effect fallen into desuetude in Scots law: 4) I am aware that the phrase in aemulationem vicini was at one time frequent ly, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not at tended with offence or
Code in the early nineteenth century, and thus the principles of the evolved Civil Law had not become 'fully related and systematised'.(5) Instead the Scots had succumbed to the 'pressures and blandishments of English legal doctrine' and this had been 'to the detriment of [their] law'.(6) Comparative law could, however, redress the resultant distortions by taking 'cross-bearings on her position from other so-called “mixed” systems'.(7) Thus Smith urged the teachers of the Civil Law in Scottish universities - as the 'fideicommissaries of the past and fiduciaries for the future'(8) - that they had a 'special duty to denounce the strange gods, and to preach a return to purer doctrine'.(9) The first question raised by this rousing rhetoric is whether in fact a doctrine of abuse of rights belongs within the legal tradition of Scotland as a mixed jurisdiction. 2. Rejection of aemulatio vicini: A strange god? The doctrine of aemulatio vicini, bracketed by Smith with abuse of rights, encompasses the general principle that no one should exercise what is otherwise a legitimate right in a way which is solely motivated by the desire to cause annoyance to his or her neighbour. Typically it is found in the context of neighbourhood law: if, for example, one discovers that a neighbour's house is served by a pipe leading under one's own garden, one is not entitled to cut off the supply, even in the absence of a servitude right (easement), when there is no legitimate reason for doing so. (10) Smith had singled out this particular area of law because of what he saw as the insensitive treatment of aemulatio vicini by the courts over the years: Scots law had been gravely compromised by 'incautious ad hoc references to “common law” solutions'.(11) In Smith's account, the difficulties began with the reasoning applied by Lord Watson (a Scottish 'Law Lord') in the well-known nineteenth-century House of Lords English case, Mayor of Bradford v Pickles. (12) The 'false god' held up in that case was the principle that, in Lord Watson's words, 'no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious'.(13) In adopting this principle for English law, their Lordships had been fortified by Lord Watson's observation that the aemulatio vicini doctrine had in effect fallen into desuetude in Scots law:(14) I am aware that the phrase 'in aemulationem vicini' was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or
injury to the legal rights of his neighbour The law of Scot land. if it differs in that, is in all other respects the same wi th the law of Eng land. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. And when it comes to depriving a nei ghbour of an amenity such as water or light or prospect in the absence of a relevant easement, Mayor of Bradford remains authoritative in English law. The existence of public law controls curbing antisocial developments means that modern cases are much rarer than during the era of rapid industrialisation and urbanisation, but from time to time English litigants are still reminded that there is no absolute rule of law which prevents landowners from using their land in a way which injures a neighbour. And, as is well known, Mayor of Bradford did not end there. The denial of malice as a determining factor--was rapidly carried over from the context of landownership to the economic torts. A year or two later, in the landmark English case of Allen v Floodin(involving a trades union dispute where one group of workers effectively induced an employer to sack another, smaller group of workers), the unfaltering Lord Watson could be found declaring that the law of England does not take into account motive a constituting an element of civil wrong the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due.-- There then followed a string of further English tort cases involvin interference with employment contracts, in which the courts unhesitatingly took up an abstentionist stance, steering clear of any kind of regulatory role over unfair trade practices, even where the actions complained of were patently unfair. 9 In turn, this laissez-faire disregard of malicious motive spilled over into comparable Scots cases. One of the cases noted particularly by Smith 202 was Mackenzie y Iron trades Association. 21 In that case, the first Division of the Court of Session drew upon the reasoning applied in allen v Flood to refuse the claim of an unemployed ironworker against the employers' insurance organisation which had effectively put him on to an employers' blacklist. There is a series of further, perhaps less well-known, cases in the early years of the twentieth century in which the authority of Allen v Flood is accepted more or less without reservation by the Scots courts in order to dismiss claims without regard to the existence of malice. 22 However, the case which has attracted most comments is Crofter Handwoven Harris Tweed Co v Veitch, a case concerning the delict of conspiracy, again in relation to an industrial dispute. In the house of lords. the lord chancellor viscount simon asserted without challenge that, as far as interference with trade was concerned
injury to the legal rights of his neighbour . . . The law of Scotland, if it differs in that, is in all other respects the same with the law of England. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. And when it comes to depriving a neighbour of an amenity such as water or light or prospect in the absence of a relevant easement, Mayor of Bradford remains authoritative in English law. The existence of public law controls curbing antisocial developments means that modern cases are much rarer than during the era of rapid industrialisation and urbanisation, but from time to time English litigants are still reminded that there is no absolute rule of law which prevents landowners from using their land in a way which injures a neighbour.(15) And, as is well known, Mayor of Bradford did not end there. The denial of malice as a determining factor(16) was rapidly carried over from the context of landownership to the 'economic torts'. A year or two later, in the landmark English case of Allen v Flood (17) (involving a trades union dispute where one group of workers effectively induced an employer to sack another, smaller group of workers), the unfaltering Lord Watson could be found declaring that 'the law of England does not . . . take into account motive as constituting an element of civil wrong . . . the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due'.(18) There then followed a string of further English tort cases involving interference with employment contracts, in which the courts unhesitatingly took up an 'abstentionist' stance, steering clear of any kind of regulatory role over unfair trade practices, even where the actions complained of were patently unfair.(19) In turn, this laissez-faire disregard of malicious motive spilled over into comparable Scots cases. One of the cases noted particularly by Smith(20) was Mackenzie v Iron Trades Association. (21) In that case, the First Division of the Court of Session drew upon the reasoning applied in Allen v Flood to refuse the claim of an unemployed ironworker against the employers' insurance organisation which had effectively put him on to an employers' blacklist. There is a series of further, perhaps less well-known, cases in the early years of the twentieth century in which the authority of Allen v Flood is accepted more or less without reservation by the Scots courts in order to dismiss claims without regard to the existence of malice.(22) However, the case which has attracted most comments is Crofter Handwoven Harris Tweed Co v Veitch, a case concerning the delict of conspiracy, again in relation to an industrial dispute. In the House of Lords, the Lord Chancellor, Viscount Simon, asserted without challenge that, as far as interference with trade was concerned
here was no difference between Scots law and the English law of Tort. 23 TB Smith perceived this as a particularly insidious method of subverting Civilian principles by Common law Doctrines' None of these early twentieth-century Scots cases made anything of Civilian principles: all relied substantially upon the reasoning of Allen v Flood and the cases deriving from it. Allen v Flood drew heavily upon the principles stated in Mayor of Bradford, and Mayor of Bradford in turn was premised on Lord Watson's assurance that aemulatio vicini was all but obsolete in Scotland. If that initial premise was mistaken, then it for English I nces for english law, but Scottish courts But was Lord Watson wrong in belittling the significance of the aemulatic vicini doctrine? The answer to that question is not entirely straightforward 3. Aemulatio vicini in the scots Institutional 2o2 writers The civilian credentials of the doctrine of aemulatio vicini are detailed in the seminal article by Professor Scholtens published in the South African Law ournal in the same year as Smith s inaugural lecture quoted in the opening paragraph, 1958. More recently they have been traced he Scots perspective by David Johnson in his essay Owne Neighbours: From Rome to Scotland. Classical Roman law had no coherent doctrine of aemulatio vicini, even in the neighbourhood context, and no general doctrine of abuse of rights. What Johnson has shown is that the rules on aemulatio were built up incrementally, on the basis of Digest sources, by the Glossators and Post-Glossators and by specific reference to the relevance of malicious motive in, for example, the cautio damni infecti and the actio aquae pluviae arcendae. Aemulatio vicini was thus received into Scots law as a doctrine not of classical roman law but of the ius commune There is ample discussion in the Scots Institutional writers of the role of malice or aemulatio. While there is little evidence of an overarching doctrine punishing the abuse of rights in all contexts - as developed later in many Civil Law systems there is plentiful evidence, as noted elow, that malice was considered relevant in the context of neighbour law. Bankton also mentions malice as a determining factor in the context of whether one could be permitted to set up a fair or market close to
there was no difference between Scots law and the English law of Tort.(23) T B Smith perceived this as a 'particularly insidious method of subverting Civilian principles by Common law Doctrines'.(24) None of these early twentieth-century Scots cases made anything of Civilian principles: all relied substantially upon the reasoning of Allen v Flood and the cases deriving from it. Allen v Flood drew heavily upon the principles stated in Mayor of Bradford, and Mayor of Bradford in turn was premised on Lord Watson's assurance that aemulatio vicini was all but obsolete in Scotland. If that initial premise was mistaken, then it is for English lawyers to assess the consequences for English law,(25) but it would seem to follow that Allen v Flood was of dubious relevance to Scotland and should not have been considered authoritative in the Scottish courts. But was Lord Watson wrong in belittling the significance of the aemulatio vicini doctrine? The answer to that question is not entirely straightforward. 3. Aemulatio vicini in the Scots Institutional(26) writers The Civilian credentials of the doctrine of aemulatio vicini are detailed in the seminal article by Professor Scholtens published in the South African Law Journal in the same year as Smith's inaugural lecture quoted in the opening paragraph, 1958.(27) More recently they have been traced from the Scots perspective by David Johnson in his essay 'Owners and Neighbours: From Rome to Scotland'.(28) Classical Roman law had no coherent doctrine of aemulatio vicini, even in the neighbourhood context, and no general doctrine of abuse of rights. What Johnson has shown is that the rules on aemulatio were built up incrementally, on the basis of Digest sources, by the Glossators and Post-Glossators and by specific reference to the relevance of malicious motive in, for example, the cautio damni infecti and the actio aquae pluviae arcendae. (29) Aemulatio vicini was thus received into Scots law as a doctrine not of classical Roman law but of the ius commune. There is ample discussion in the Scots Institutional writers of the role of malice or aemulatio. While there is little evidence of an overarching doctrine punishing the abuse of rights in all contexts - as developed later in many Civil Law systems - there is plentiful evidence, as noted below, that malice was considered relevant in the context of neighbour law. Bankton also mentions malice as a determining factor in the context of whether one could be permitted to set up a fair or market close to
hat of another. 0 Clearly the basic principle was that owners could do what they wished with their own property. Bankton then drew a distinction between actions which cause direct damage to a neighbour and those which only deprive of a benefit:There is a great difference between one s suffering damage, and his being precluded from a benefit or conveniency which he was formerly using. While direct damage was generally actionable, actions which merely deprived of a benefit were not, and that expressly included operations which obstruct a neighbours light or prospect. Kames also drew a distinction between actions which caused direct harm to neighbours (which were not permitted and to which malice was not particularly relevant -or relevant presumably only as an exacerbating factor) and those which caused consequential damage. 3 All of the writers, while conceding that consequential damage was normally not actionable, qualified this general rule to the effect that even consequential damage was not to be tolerated in the presence of malice or envy. In other words -or in the words of the pursuer in Ralston v Pettigrewa5-' the proper place for [aemulatio vicini] is where something has been done, which, though disagreeable, or even pre judicial to a neighbour, yet does not directly encroach upon, or destroy any part of his property. Erskine gave the specific example of a proprietor draining off excessive amounts from a watercourse simply to throw them way and deprive a neighbour, and Erskines editor added in as an example the erection of high walls to block out a neighbours light. D These are both examples which find exact parallels in the French abu of rights case-law The Scots position was summarised in the nineteenth century by bell te the effect that no one is entitled to act wantonly, with the mere purpose of producing inconvenience and loss to his neighbour in aemulationem vicini, and in a later passage, quoted in bradford v Pickles, he noted that whether the harm caused by their actions is direct or consequential, landowners must not act in spite or malice -in aemulationem vicini. 40) These commentaries demonstrate that aemulatio vicini was recognised in Scots law prior to Mayor of Bradford v Pickles. However, they give little indication of how it worked. Hume went some way towards defining malice in terms of malicious and unsocial purpose palpable to the common apprehension, 4 but these are all terms which have caused considerable controversy and voluminous discussion in the literature on the Civilian abuse of rights doctrine. In order to understand what malice meant, and the level of intention required before the landowner was stopped from doing what he chose with his property, the case-law from the same period
that of another.(30) Clearly the basic principle was that owners could do what they wished with their own property.(31) Bankton then drew a distinction between actions which cause direct damage to a neighbour and those which only 'deprive of a benefit': 'There is a great difference between one's suffering damage, and his being precluded from a benefit or conveniency which he was formerly using.'(32) While direct damage was generally actionable, actions which merely deprived of a benefit were not, and that expressly included operations which obstruct a neighbour's light or prospect. Kames also drew a distinction between actions which caused direct harm to neighbours (which were not permitted and to which malice was not particularly relevant - or relevant presumably only as an exacerbating factor) and those which caused consequential damage.(33) All of the writers, while conceding that consequential damage was normally not actionable, qualified this general rule to the effect that even consequential damage was not to be tolerated in the presence of malice or envy.(34) In other words - or in the words of the pursuer in Ralston v Pettigrew (35) - 'the proper place for [aemulatio vicini] is where something has been done, which, though disagreeable, or even prejudicial to a neighbour, yet does not directly encroach upon, or destroy any part of his property'. Erskine gave the specific example of a proprietor draining off excessive amounts from a watercourse simply to throw them away and deprive a neighbour,(36) and Erskine's editor added in as an example the erection of high walls to block out a neighbour's light.(37) These are both examples which find exact parallels in the French abuse of rights case-law.(38) The Scots position was summarised in the nineteenth century by Bell to the effect that 'no one . . . is entitled . . .to act wantonly, with the mere purpose of producing inconvenience and loss to his neighbour in aemulationem vicini',(39) and in a later passage, quoted in Bradford v Pickles, he noted that whether the harm caused by their actions is direct or consequential, landowners must not act in spite or malice - in aemulationem vicini. (40) These commentaries demonstrate that aemulatio vicini was recognised in Scots law prior to Mayor of Bradford v Pickles. However, they give little indication of how it worked. Hume went some way towards defining malice, in terms of 'malicious and unsocial purpose palpable to the common apprehension',(41) but these are all terms which have caused considerable controversy and voluminous discussion in the literature on the Civilian abuse of rights doctrine. In order to understand what malice meant, and the level of intention required before the landowner was stopped from doing what he chose with his property, the case-law from the same period