CBE, MA, LLB, LLM, SJD, Dr hc, FRSE
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BiographyEric Clive, formerly Professor of Scots Law in this university, returned to the Law School as a visiting professor after nineteen years as a full time member of the Scottish Law Commission. He was made Honorary Professor in August 2014. His main field of interest is private law, particularly family law, the law of obligations, private international law and, in recent years, European private law. His focus is on law reform. He has a keen interest in legislative drafting. He is one of the joint authors of the draft criminal code for Scotland published by the Scottish Law Commission in 2003. He was the main editor of Part 3 of the Principles of European Contract Law (Lando Commission) and a member of the Study Group on a European Civil Code. He is one of the main editors of Principles, Definitions and Model Rules of European Private Law (the Draft Common Frame of Reference).
Unjustified Enrichment (Honours)
Eric Clive, Bruce McKain, Alistair J. Bonnington and Rosalind McInnes Scots Law for Journalists (W. Green, 2000)
Abstract: An account of those areas of the law of Scotland likely to be of most use and relevance to journalists.
Eric Clive The Law of Husband and Wife in Scotland (4th ed) (W. Green, 1997)
Abstract: The Scottish law on marriage, legal effects of marriage, separation and divorce, termination of marriage by death
Eric Clive, Christian von Bar; Hans Schulte-Nölke Principles, Definitions and Model Rules of European Private Law (Outline edition) (Sellier, 2009)
Abstract: These principles, definitions and model rules of European private law are otherwise known as the Draft Common Frame of Reference (DCFR). This is an outline edition because, unlike the full edition to be published later this year, it does not contain comments and national notes after each model rule. The content covers model rules on contracts, contractual and non-contractual obligations and corresponding rights, specific contracts (such as contracts for the sale of goods or the supply of services), benevolent intervention in another's affairs, non-contractual liability arising out of damage caused to another, acquisition and loss of ownership of goods, proprietary security rights in movable assets and trusts.
Eric Clive, Christian von Bar Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR) (sellier.european law publishers, 2009)
Abstract: This is the full edition of the DCFR, in six volumes and over 6500 pages, which contains not only model rules of European private law but also, in most parts. comments and national notes. It covers not only contract law in a broad sense (contracts and other juridical acts, contractual obligations, remedies for non-performance of contractual obligations; rules for various kinds of specific contracts) but also areas such as unjustified enrichment, benevolent intervention in another's affairs, non-contractual liability for damage caused to another, loss and acquisition of the ownership of goods, proprietary securities and trusts. The work is the independent work of private lawyers (mainly academics) from throughout the European Union co-ordinated by two groups - the Study Group on a European Civil Code and the Acquis Group - and put together and refined by a Compilation and Redaction Team of which Christian von Bar and Eric Clive were joint chairmen.
Eric Clive, Christian von Bar; Hans Schulte-Nölke Principles, Definitions and Model Rules of European Private Law (Interim Outline Edition) (Sellier, 2008)
Abstract: This is an interim outline edition of the Draft Common Frame of Reference on European Private Law submitted to the European Commission in December 2007. It consists of draft rules on contracts and other juridical acts, on obligations and coresponding rights to performance, on various specific contracts and the rights and obligations arising form them, on benevolent intervention in another's affairs, on non-contractual liability for damage caused to another and on unjustified enrichment.
Eric Clive, Ole Lando, Andre Prum, Reinhard Zimmermann Principles of European Contract Law Part 3 (Kluwer, 2003)
Abstract: Text (in the form of a draft code), comment and national notes on topics of European contract law - including plurality of debtors and creditors, assignation, substitution of a new debtor, transfer of contract, set-off, prescription, illegality, coditions and compound interest.
Anne Griffiths, Eric Clive, Jane Scoular, Claire Mcdiarmid, Elaine Sutherland, Margaret L. Ross, Kenneth McK. Norrie, Clare Connelly and Alison Cleland Family Dynamics: Contemporary Issues in Family Law (LexisNexis UK, 2001)
Abstract: Written by a team of Scotland's leading academics, this is an invigorating edited collection dealing with the key issues in family law from a socio-legal and theoretical perspective. It broadens the study of family law beyond case law and legislation by engaging the reader in the current debates surrounding family law. It will be of interest to students, academics and family lawyers both in Scotland and abroad.
Eric Clive 'A General Perspective on the European Commission's Proposal for a Regulation on a Common European Sales Law' (2012) Maastricht Journal of European and Comparative Law p 120
Abstract: An overview of the proposal for a Common European Sales Law and some of the questions to which it gives rise.
Eric Clive 'Termination: The Divorce of Contract Law?' (2009) Revue des contrats Vol 2 pp 919-928
Abstract: It may be helpful to think of termination of the contractual relationship under the Draft Common Frame of Reference as being similar to divorce in its objective, nature and effect on the relationship but dissimilar in its process, grounds and economic consequences. The article explores the parallels and divergences. It also discusses the DCFR's provisions on termination in the light of criticisms of the equivalent provisions in the Principles of European Contract Law (PECL) by French scholars and in the light of recent official French proposals for reform. It concludes that many of the criticisms justifiably made of the PECL provisions do not apply to the DCFR provisions.
Eric Clive 'European Initiatives (CFR) and Reform of Civil Law in New Member States; Differences between the Draft Common Frame of Reference and the Principles of European Contract Law' (2008) Juridica International XIV pp 18 to 26
Abstract: An analysis of the main differences between the Draft Common Frame of Reference (DCFR) and the Principles of European Contract Law (PECL). Introduction; the seven PECL articles omitted from the DCFR; new material in Books IV to X of the DCFR; Acquis Group material in Books II and III; other new material in Books II and III; more definitions; expansion of some rules; verbal clarifications; other drafting changes; more transparent structure; expanded and updated national notes.
Eric Clive 'An Introduction to the Academic Draft Common Frame of Reference' (2008) ERA - Forum Vol 9 Supplement 1 pp S13 to S31
Abstract: An introduction to the DCFR, background, time schedule, the interim outline edition, scope of DCFR, structure, relationship to Principles of European Contract Law (PECL) and other instruments, some differences from PECL, criteria for assessment of DCFR, conclusion.
Eric Clive, Ferguson, Pamela 'Unravelling the Enigma: A Reply to Professor Farmer' (2002) Scottish Law & Practice Quarterly Vol 7 page 81
Abstract: Responds to some points made by Professor Lindsay Farmer on the draft criminal code for Scotland
Eric Clive 'The 1996 Hague Convention - A Proposal for Simplification' (2002) Family Law 131
Abstract: Proposes a simplification of the current United Kingdom rules on jurisdiction in matters relating to children - building on the rules in the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children.
Eric Clive 'Making Law in Scotland: From APS to ASP' (1999) Edinburgh Law Review Vol 3 pp131-150
Abstract: This article is the revised text of the fourth Wilson Memorial Lecture, delivered at the Old College, University of Edinburgh, on 17 December 1998. It argues that Acts of the Scottish Parliament (ASPs) need not be, and in some respects cannot be, the same in form and style as those of the United Kingdom Parliament. There is no point in going back to the form and style of pre-Union Acts of the Parliament of Scotland (APS), but there is a need for early consideration of such matters as the enacting formula, the short title, the long title, the extent provision and duration provisions. The form of Bills also needs to be considered before bad precedents become established. The main criterion should be the convenience of the ultimate users of the legislation. So far as style is concerned, the start of a new legislative tradition ought to boost existing trends towards simpler language and grammatical structures and more gender-neutral drafting. The powers of the Scottish Parliament would be well-suited to the enactment of codifying legislation.
Eric Clive 'Time to Reflect on the Right to Reject' in Louise Gullifer and Stefan Vogenauer (eds) English and European Perspectives on Contract and Commercial Law: Essays in Honour of Hugh Beale (Hart Publishing, 2014) 131-151
Abstract: This Chapter argues that the way in which the 'right to reject' is used in the sales law of the United Kingdom is confused, confusing and regrettable. It mixes up different kinds of right and different types of rejection. It uses words in inappropriate ways and focuses on the wrong element in the buyer's remedies. It complicates the law unnecessarily and leads to incoherence and misleading assumptions.
Eric Clive 'Interpretation of Contracts in European Private Law' in Luigi Moccia (eds) The Making of European Private Law: Why, How, What, Who (Sellier European Law Publishers, 2013) 181 - 190
Abstract: Assessment of the rules on interpretation in the proposed Common European Sales Law
Eric Clive 'European Harmonization and the Draft Commn Frame of Reference' in Morten M Fogt (eds) Unification and Harmonization of International Commercial Law (Walters Kluwer, 2012) 205 - 222
Abstract: An assessment of different possible methods of harmonisation of European commercial law
Eric Clive 'The Lasting Influence of the Lando Principles' in Michael Joachim Bonell, Marie-Loise Holle, Peter Arnt Nielsen (eds) Liber Amicorum Ole Lando (DJOf Publishing, 2012) 69 - 84
Abstract: An assessement of the influence of the Principles of European Contract Law (PECL), including their influence on the Draft Common Frame of Reference and the proposed Regulaltion on a Common European Sales Law
Eric Clive 'Multi-party relationships in the DCFR' in Vincent Sagaert; Matthias Storme; Evelyne Terryn (eds) The Draft Common Frame of Reference: national and comparative perspectives (Intersentia, 2012) 135-146
Abstract: An analysis of the DCFR's rules on representation, stipulations in favour of athird party, plurality of debtors and creditors; assignment and other changes of parties.
Eric Clive 'Restraints on Freedom of Testation in Scottish Succession Law' in M. Anderson and E. Arroyo i Amayuelas (eds) The Law of Succession: Testamentary Freedom (Europa Law Publishing, 2011) pp. 241-256
Abstract: An analyis of the present law of Scotland on restraints on testamentary freedom and proposals for reform
Eric Clive 'Codification of the Criminal Law' in James Chalmers, Fiona Leverick, Lindsay Farmer (eds) Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press, 2010) 54-69
Abstract: The state of play on the question of codification of the criminal law of Scotland.
Eric Clive 'Interpretation' in Hector MacQueen, Reinhard Zimmermann (eds) European Contract Law: Scots and South African Perspectives (Edinburgh University Press, 2006) 176-202
Abstract: This chapter evaluates whether the Principles of European Contract Law (PECL) are predominantly civil law, predominantly common law, or mixed. It considers the PECL rules on interpretation from this point of view and examines whether they are acceptable, and how they compare with the rules in Scots and South African law. The chapter specifically provides an interpretation of the PECL rules in Articles 5:101 and 5:102. DOI:10.3366/edinburgh/9780748624256.003.0007
Eric Clive, Dale Hutchison 'Breach of Contract' in Kenneth Reid, Reinhard Zimmermann, Daniel Visser (eds) Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (Oxford University Press, 2004)
Abstract: A comparative account of the law on remedies for breach of contract in Scotland and South Africa.
Eric Clive 'The Scottish civil code project' in Hector MacQueen, Antoni Vaquer, Santiago Espiau (eds) Regional Private Laws and Codification in Europe (Cambridge University Press, 2003) pp 83- 101
Abstract: An examination of the case for, the prospects for, and the difficulties of, codifying Scottish private law.
Eric Clive 'The Principles of European Contract Law and draft European Civil Code' in Santiago Espiau Espiau, Antoni Vaquer Aloy (eds) Bases de un derecho contractual Europeo: bases of a European contract law (Tirant lo Blanche, 2003) pp 543-576
Abstract: An examination of the drafting of the Principles of European Contract Law and an attempt to derive from it some lessons for future work on a draft European civil code
Eric Clive 'Marriage and cohabitation' in Anne Griffiths, Eric Clive, Jane Scoular, Claire Mcdiarmid, Elaine Sutherland, Margaret L. Ross, Kenneth McK. Norrie, Clare Connelly and Alison Cleland (eds) Family Dynamics: Contemporary Issues in Family Law (LexisNexis UK, 2001) pp. 129-149
Abstract: Considers questions of legal policy concerning marriage and heterosexual cohabitation. Should a modern law regulate marriage and cohabitation and, if so, how?
Eric Clive 'Interpretation' in Reinhard Zimmermann (eds) A History of Private Law in Scotland, II: Obligations (Oxford University Press, 2000) 47-73
Abstract: This chapter focuses on the interpretation of law, focusing on the two dominant influences-civilian and English law-that were assumed to have played great influences in concluding Scottish law. It clarifies that there is no struggle between the civilian and English common law approaches in the doctrinal history of the Scottish law on the interpretation of juridical terms. The Scottish law instead, was supported first by references to civilian texts and later by the references to Scottish and English cases wherein no substantive change occurred. The chapter also traces the development of the Scottish law on interpretation from the institutional writers of the 17th and 18th centuries to the present day. DOI:10.1093/acprof:oso/9780198299288.003.0002
Eric Clive 'The New Hague Convention on the Protection of Adults' in Sarcevic and Volken eds (eds) Yearbook of Private International Law (Kluwer Law International in assoc'n with Swiss Institute of Comparative Law, 2000) Pp 1- 24
Abstract: Analysis of the Convention, including in particular some of the aspects which gave rise to difficulty in its negotiation
Eric Clive 'The Role of the New Protection of Children Convention' in Sharon Detrick, Paul Vlaardingerbroek (eds) Globalization of Child Law (Kluwer Law International, 1999) pp53-62
Abstract: Analysis of Hague Convention of 1996 on jurisdiction, applicable law and the recognition and enforcement of judgments concerning children
Eric Clive 'A Scottish Civil Code' in Hector MacQueen Scots Law into the 21st Century: Essays in Honour of W. A. Wilson (W. Green / Sweet & Maxwell, 1996) pp.82-91
Abstract: Arguments for and against a Scottish civil code
Notes and Reviews
Eric Clive 'The Concept of Habitual Residence' (1997) Juridical Review pp137
Abstract: Argues for a non-technical approach to the concept of habitual residence, concentrating on the requirements implicit in the two words "habitual" and "residence".
Papers and Presentations
Eric Clive 'Jurisdiction and the recognition and enforcement of judgments in matters relating to children - a proposal for simplification' presented at United Kingdom Family Law Conference, London
Abstract: A plea for the complexity of overlapping rules in the Family Law Act 1986, Brussels II and the proposed EU Council Regulation to be replaced by a simpler system based on the Hague Convention on Children of 1996.