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Jurisdiction under study and Legal Traditions encompassed
The jurisdiction under consideration in this study is of Scotland in United Kingdom. Scotland was the first to develop a principle of common law wherein any court that has got the jurisdiction to hear a claim can refuse to do so. This refusal by the court is on the basis that the court believes that another court that falls in another state also possess jurisdiction o hear this case and also is capable to render better justice under the circumstances. This concept developed by Scotland jurisdiction has been called Forum non conveniens. This law has been familiar to civil law courts. These civil law courts are generally required by the countries where that operate to hear an action although they have the privilege to suspend it. Forum non conveniens has been adopted by Quebec and Louisiana after Scotland. Forum non conveniens has come out to be so popular that it may be accepted throughout the common law world. Forum non conveniens has been regarded as one of the most civilized of all the legal principles. However, the acceptance of Forum non conveniens in civil law jurisdictions still is a matter to be observed.
Modern Scotland is a mixed jurisdiction which means that Scotland jurisdiction has laws that are derived from more than one legal tradition such as the civil law, common law, Islamic Law etc. Scotland derives its laws from both the civil law tradition and the common law tradition. Mixed jurisdiction is a legal system where in Romano Germanic tradition has been suffused by Anglo American law to some degree, as per the definition provided by Robin EVANS JONES. Scotland is a legal system which exhibits features of both the Civilian Law and the English Common law traditions and that to a very large extent. A variety of different mixtures of legal systems exist in the world today. Scotland is one example where in the legal systems encompasses historically distinct elements however the same legal institutions.
Civil law is a legal tradition and has its origin in Roman law and subsequently was developed in continental Europe and around the world. Civil law is highly structures and a systematic tradition. Civil law relies upon declarations of generic and broad principles which often ignore the details. Common law on the other hand is a legal tradition that was developed in England in the 11th century. The principles of the common law appear in the judgments for most of the part and that also in the higher courts.
Common law principles also appear in relation to some particular factual situations which arises in deputes that the courts have adjudicated. Common law is generally much detailed in all the proscriptions as compared to the Civil law. Moreover, common law is the foundation of private law which is not only confined to England, Wales and Ireland but also in the United States of America states, 9 states in Canada, and also in most of the colonized countries which received the common law during their colonization era under British government. The colonized countries have perceived the common law as independent states also being a part of the British Commonwealth.
Scotland jurisdiction has received Roman law and has retained it. This retention of the Roman law has been without the benefit from codification. However, continental Europe received the Roman law but retained it after codification which was imposed mainly by the victories of Napoleon and also followed by the influence of the civil code of France in the year 1804. Scotland law has been sub divided into 4 periods as feudal period, Dark Age, Roman period and modern period. The feudal period and the influence of Roman Catholic Canon law had great influence over the Scotland jurisdiction. In the modern period, the laws prevalent in Scotland have been increasingly being influenced by the English Common law. Moreover English statutory law also has a great impact on Scotland jurisdiction especially in the area of labor law, commercial laws and also administrative laws.
Major Sources of law
In Scotland, the doctrine of judicial precedent has been accepted. The lawyers in Scotland have looked to English case laws and the literature available. Moreover, the European Union law also has a major influence upon the Scottish jurisdiction and laws. The influence of European Union law has been mostly felt after the year 1973.
The civilian legal heritage has been found to be still very strong in Scotland. This is very much evident in the structure of the Scottish law. Also, this impact is evident in the terminology and the content of the Scotland laws. Some examples to quote from the Scottish law are the terms used such as obligations, hypothecs, corporeal and incorporeal moveables, quasi-contract, prescription, moveables and immoveables, servitudes, delict and many more. The prevalence of Latin can also be seen predominantly in the Scotland law. Some examples to illustrate this are such as condictio indebiti, jus quaesitum tertio, forum non conveniens, arrestment ad fundandam jurisdictionem, negotiorum gestio and many more. Moreover the deductive methods used for legal reasoning derived from the general principles as applied to particular applications also demonstrate the predominance of civilian law.
The Scottish law in true sense is a mixed legal system due to the diversity in the main sources for its present day form. The main sources, as have been discussed earlier, are feudal law, Roan law, English Common Law (which impacted in some part) and the statues. It has also been described by the authors that the Scottish law is a distinct legal system. However, Scottish law is far from an original legal system. This is because the Scottish law has not been developed independently without the influence of external factors. There is quite a little which is native to the country. Most of the arts of the laws in Scotland have been contributed by other legal systems. The distinct nature of Scotland law is due to the process that the Scottish law makers have followed over the past centuries. This was done by forming a coherent body of law derived from all the sources.
An author Robin Evan Jones also concluded a similar statement regarding the Scottish law. He has pointed out that the civil law tradition in Scotland has been under danger constantly now. The danger arises from the influential English Common law. The English Common law is experiencing a constantly ongoing reception of its laws. The English Common Law is continuously influencing the Scottish lawyers and judges.
To add to this, the Scottish legal education has also intended to limit the study of its civil law to only Roman law. This has lead to the ignorance of the modern day developments in the Scottish Civilian legal system. The Scottish Civilian legal system is also not easily assessable to the jurists in Scotland.
Extent to which promises as to the future are enforceable
To compare the extent to which promises are enforceable in the Scottish jurisdiction and Islamic law (as Common law is embodies in the Scottish law), a case of the Contract law has been undertaken and comparison will be made between the Scottish law and the Islamic Law based upon Contract law.
In law, Contract is a legal binding agreement that is enforceable in a court of law. Thus a contract is an exchange of promises such that any breach to these promises will lead the law to interfere and a remedy will be found for the breach.
In Scottish law, a contract is created by a bilateral agreement. This is distinguished from unilateral promise, which is characterized as a distinct and enforceable species of obligations. The requirements of consideration are existing in the English law are not applicable under the Scottish jurisdiction. Thus in Scottish legal system, it is possible to have a gratuitous contract which is a contract where in only one of the parties have some obligations towards the other party. The other party or parties may or may not have any kind of obligation towards the first party which is having these obligations. To illustrate this, in Scotland a contract between two parties can be entered into such as one party will perform services to the other party in exchange of no obligation from the second party. It should be noted that not all declarations that are made by one person to another will become a promise. This promise may or may not be enforceable under Scottish law. To be specific, a declaration of intention will not be considered as a promise. Neither will be any testament or a will nor an offer from one party to another will be considered as a promise in Scottish law. In the Common law, a promise has to be backed by a writ or an oath in order to be proved. In the year 1995, after the enactment of Requirements of Writing (Scotland), a promise made in the jurisdiction of Scotland need only be written on a paper for evidence in only certain situations. The first situation is the creation, transfer, extinction or variation of an interest in land as per the requirement of Writing (Scotland) Act of 1995. Moreover, a gratuitous unilateral obligation can be written to treat as evidence. This has an exception where in an obligation that is undertaken in the course of some business cannot be written to treat as evidence. This section in the Requirement of Writing (Scotland) Act has sparked a lot of debate among the academicians. The main confusion is the description of the terms ‘Unilateral' and ‘Gratuitous'. In the opinion of most of the academicians, the inclusion of these two terms has an intention from the drafters side such that these words can be depicted in different sense as and when required. This will enable some of the promises to be unilateral but not gratuitous. These points have been specifically discussed by many authors.
The initial source of Islamic contract law on the other hand, is the holy Quran. Islamic contract law on the other hand recognizes two forms of contracts. These forms are the express contracts and ‘contract by conduct' as is described in the common law also. Islamic law presupposes the offer making between two or more parties in either oral way or in written form or by conduct. The acceptance of the offer made to the party in Islamic law is considered as the creation of the contract. In addition, Islamic law forces that the parties between or among which the contract exists must be competent. In Islamic law, similar to the Common law, there is a provision for requirement for consideration. Consideration has an analogous meaning that implies to whatever the parties give in exchange to each other or in performance to their promise. The concept detailing the requirement of consideration implies a bargain or the value that is given ion exchange of the value received. Consideration is required to be lawful under Sharia. This clause makes the exchange of forbidden goods and services illegal and also unenforceable. Some examples of these exchanges are the sale of alcohol, pork and also lending money which has an implication of riba. It has been observed that the Islamic law of Contract has its objectives that are similar to the ones of the common law or the civil law which is termed as enforcement of promises such as the Scottish law. But Islamic law does not allow the contract which Sharia disallows. The evolution of the Islamic law has continued with the progress of Muslim societies in the field of commerce and industry. It would not be worthwhile to look for a doctrine similar to the Western law of contract while studying Islamic law. However, besides all this, the development of the Islamic Contract law has kept its pace with the development of the newer forms of transactional needs as time has grown.
Two Sharia doctrines that are cardinal to it have guided the development of the Islamic Contract law throughout the history. These doctrines are the Riba and Gharar. Riba is an increase which is sought through illegal means such as robbery, bribery, profiteering, fraudulent trading etc. Riba include economic selfishness and many more types of sharp practices including the practices that are international in scope. Riba has remained vital for many centuries except that many different schools have interpreted in different ways. Gharar on the other hand, includes prohibitions that apply to all range of commercial activities and also aleatory contracts. Gharar doctrine becomes applicable in case the subject matter of price, contract or both are determined in advance and also are fixed.
Western law of Contract has originated from the moral theology. This moral theology dates back to Christian and pre Christian eras. The moorings of the moral theology were cut off from the past. However, in the 18th and the 91th centuries, the moral theology was supplanted by the secular theories of autonomy of will and also the consideration to the social utility. To understand the foundational kinship between Islamic and Western laws of contract, many studies have been conducted such as those of the Berman. According to Berman, as society moves inevitable into the future. But the society does this by moving backwards with the eyes set on past.
The overriding principles of Sharia are expected to continue to guide the direction of the Islamic contract law. The doctrines of riba and gharar have always continued to draw lively debates in the Islamic societies and will always happen to be asserted in case a matter of dispute is put up before the Sharia courts.
Business Organizations in Scotland Jurisdiction
The principal governing legislation in Scotland jurisdiction for formation of any company or corporation is found tin Companies Act of 1985. The main features of the Scottish law includes that the Directors of any company can be individuals and also corporate entities. Every company needs to have at least one director who will be the ‘natural person' and not a corporate entity. No residency or nationality restrictions are applicable to the directors. A company secretary on the other hand can be either a company or an individual. All companies are required to have at least one subscriber or shareholder at the time of its incorporation. All companies are required to have a registered office within English territory.
Among the duties of the directors, it is required by the Scottish jurisdiction that at least one individual over the age of 18 has to act as the director of the company. The directors of the company will form the decision making body of the company which will be called the Board of Directors. This entity is liable for all the laws in the Scottish jurisdiction and can be sued. The directors will have a duty to care for the interests of the share holders so as to act in the best interest of the company. The concept of a company as a fully separate legal entity to the board of Directors is accepted in the Scottish law. The board of Directors of the company are liable to be prosecuted in case any of their moves or intentions are not found appropriate I the interest of the shareholders and common man.
Under Scottish law, there need only be one shareholder or subscriber. The company generally has two or more directors after registration of the company. The nominal share capital of the company is the potential amount of shares that a company has available with it for future use. The issued share capital is the amount of shares a company issues out of its potential nominal share capital. The term nominal is used here for any company's shares because the true value of the shares depends upon the factor that how much a third party or even an existing share holder is willing to pay for the company shares at any given point in time. All the shares of a company with a specific nominal value must have had at least that nominal value paid. In case required, a company may partly pay for the share issued to add the flexibility of the payment options. Generally, two types of shares are allowed in Scottish jurisdiction. These share can be either ordinary or preference shares. Preference shares provide benefits over and above those share holders possessing ordinary shares. A Memorandum of Association of any company will aim to set out what the company may do. Annual general meetings are mandatory for the companies to to review their performance and also assist the board of directors in taking decisions. The ultimate control of the company will reside in the hands of the share holders. But for the decisions for the day to day operation, the decision of the Board of Directors will be final. All companies are bound by their corresponding Memorandum of Articles of Association. However, in case required, meetings can be called by the share holders in case the majority of the share holders wish to do so. Registered address of the company is the address where the company is officially located and also where all the official documents arrive. This address will not be required to be the one where the operations of the company are carried out. Also, a copy of company's official books is required to be at the registered office of the company. This is for the benefit of both the share holders and any other stake holders or any interested party. Powers of Attorney are the documents granted by the board of Directors in favor of the third parties.
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