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Corpus Juris civiles. Digestion.
ROMAN LAW OF SALE
WITH MODERN ILLUSTRATIONS.
DIGEST XVIII. 1 AND XIX. 1 TRANSLATED
WITH NOTES AND REFERENCES TO CASES
Sale of Goods Bill.
JAMES MACKINTOSH, B.A., ADVOCATE,
LATE SCHOLAR OF EXETER COLLEGE, OXFORD.
T. & T. CLARK, LAW PUBLISHERS.
THE civil law has been so dominant a factor in the develop
ment of the common law of Scotland that, apart from its intrinsic merits, it must always remain an essential part of a liberal professional training in Scots law. Although its influence upon the law of England has been neither so direct nor so considerable, there are signs there also of a growing practical interest in its study, if one may judge from the frequency with which it is referred to in the recent volumes of the Law Reports, and from the higher standard of attainments now enforced at the Universities and by many legal bodies. In many cases candidates for legal examinations are now very properly required, in addition to showing a general knowledge of the traditional and somewhat tedious text-book, the Institutes of Justinian, to profess some special subject as treated in the Digest, and are thus introduced to an acquaintance with the most interesting and characteristic monument of the Roman genius for law.
The principles of the law of sale, as stated in the Titles De Contrahenda Emptione and De Actionibus Empti Uenditi, seemed to me well adapted to serve as a specimen of the remains of the great jurists of the Classical period. Unfortunately the compilers of the Digest, in the hasty execution of their task, threw together the materials that lay to their hands without sufficient regard to subject or to orderly arrangement; there is, therefore, a want of logical sequence in the discussion of topics, and a constant necessity for cross-reference to other titles in the Corpus
Juris relating more or less closely to the same subject. I hope the Notes and the Index will obviate this disadvantage to some extent. I found it would be impossible, within the limits of a short book, to find room for a connected sketch of the whole Roman law of Sale, co-ordinating the chief texts, and filling up the gaps in these two titles. There are many foreign books written on this plan; and English readers may now be referred to Dr. Moyle's Contract of Sale in Roman Law, which appeared as the last sheets of this book were passing through the press.
The attempt at a comparative treatment of the civil and the common law is somewhat of a novelty, but it possesses obvious advantages both from an educational and a practical point of view. I have constantly referred to Pothier's Treatise on Sale, which is still a standard authority in our Courts, and has done more than any other book to give currency to the civil law in modern practice. To facilitate the comparison with English law, I have thought it worth while to print as an Appendix the Sale of Goods Bill, in the shape in which it was introduced in the House of Lords this year, embodying the amendments made in Committee in previous years. This draft code is an ably executed condensation of the common law; and it may be anticipated, after the criticism it has already undergone, that it will receive legislative sanction in the near future without material alteration.
A desire has been expressed by some legal and public bodies that the Bill should be extended to Scotland, but this appears to be a proposal of doubtful expediency, under present circumstances. The application to Scotland of a Bill based exclusively on English case law, with a few saving clauses interjected, would be productive of more confusion than advantage. If the legitimate desire of the mercantile community for an assimilation of the law of sale in the two countries is to be given effect to in a satisfactory manner, it is essential that there should be adequate