Missives and Deposit in Scots Law: Diachronic and Comparative Reflections about the Concept of Arrha

Abstract:

A jurisdiction such as the Scottish one, reputedly with solid Roman roots, is practically bereft of the fundamental concept of a deposit in the concluding passage of the missives. Conversely, the relevant ‘ancestor’ (Roman law) has been profoundly permeated, throughout the course of its history, by the notion of an arrha (the earnest) in the conclusion of a contract annexed to the transfer of heritable properties. Moreover, in contemporary times and outwith Scotland, a Continental jurisdiction (the Italian one) is resolutely lingering on the Roman caparra penitenziale while, ironically, the English system (comprehensively ‘un-Roman’ in its formation) has expressly adopted the ‘deposit’ as part of the closing particulars.

These asymmetries, brim-full with inviting legal ingredients, seem, in the present work, to conjure up an intriguing and captivating plot worthy of an Indiana Jones’ film, where the lost treasure can be deemed replaceable, for the distracted reader, by the ancient Roman notion of an arrha, so evidently not inherited by the contemporary Scottish jurisprudence. Ultimately, the contribution engenders the usual unsettling query: in the light of the phenomenology of the arrha so neglected in Scotland in contemporary times, is Scottish law still a mixed legal system or, conversely, a jurisdiction progressively getting closer to the English common law counterpart?