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Sender:
John Blackie
Date:
Thu, 16 Nov 2006 12:53:34
Re:
U2

 

Eachan (Hector), and everyone.

For the record Scotland and South Africa still preserve the action (originally developed by canonists), the actio spolii, which enables a possessor (not just an owner, and not just a bona fide possessor either) to get the thing back. It is designed as a speedy remedy applying the maxim "spoliatus ante omnia restituendus". In South Africa it is solely for that as the Mandament van Spolie. In Scotland, where it is called spuilzie (pronounced spooly!) it also includes an enrichment remedy in that the deprived possessor is entitled to a sum which is the maximum that could have been earned from the asset in the period during which the other party had possession (known as "violent profits"). (There is some doubt as to exactly on what basis this is calculated.) Earlier spulzie cases in Scotland are typically ones where there was some forcible taking, but a more modern view (See Reid, Property) is that deprivation without consent of the former possessor is enough. In Scotland, furthermore, it applies not only to situations of deprivation of possession of moveables, but also is applicable to land. (There is an artificial rule with certain urban property that the party is entitled to twice the normal rent.) The availability of this attractive action may be the reason why "vindication" was not often discussed in earlier cases, or writing, since there were until the early nineteenth century, loads of spuilzie actions. There are relatively few modern cases, but it is, I understand, sometimes used by lawyers in terrorem.

 

John

Professor John W G Blackie
Professor of Law
University of Strathclyde
Direct tel: +44 (0)131 202 6481
The Law School, University of Strathclyde, Level 3, Lord Hope Building, 141 St James Road, Glasgow G4 0LT

 

-----Original Message-----
From: Hector MacQueen
Sent: 15 November 2006 20:50
Subject: Re: [RDG] [Fwd: Re: [RDG] U2]

And even the insular Scotch ...


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