Hector MacQueen has been a member of the Edinburgh Law School staff since 1979, having also taken his LL.B and Ph.D at Edinburgh. Appointed to the Chair of Private Law in 1994, he was Dean of the Law School 1999-2003, and Dean of Research and Deputy Head of the College of Humanities and Social Science in the University 2004-2008. He was on leave of absence January 2010-September 2017, having taken up an initially part-time appointment as a Scottish Law Commissioner on 29 September 2009. Between October 2017 and March 2018 he split his time between completing his Commission projects and teaching in the Law School, and is now back full-time at the latter.
Professor MacQueen has previously held visiting appointments at Cornell University in the USA, the University of Utrecht in the Netherlands, and Stetson University College of Law (‘Florida’s first law school’). He has been a Fellow of the Royal Society of Edinburgh since 1995 and was elected a Fellow of the British Academy in 2006. He currently chairs the Law section of the Academy, and is also a cross-member in Medieval Studies. Professor MacQueen was President of the Society of Legal Scholars 2012-2013 and Vice-President (Humanities) of the RSE 2008-2011.
Professor MacQueen wrote the 1989 centenary history of Heriots Cricket Club, a work enthusiastically reviewed by no less than Alexander McCall Smith in chapter 6 of his novel, Love Over Scotland (2006).
Professor MacQueen's research and teaching focus on three major areas: (1) the history of law; (2) the private law of obligations; and (3) intellectual property. His work is generally centred on Scots law, but emphasises the significance of the comparative and especially the European context for a full understanding of the ‘mixed’ Scottish system and its future as well as its past development. It also argues that ‘mixed systems’ can help us understand the likely trajectory of European private law in the future.
In the history of law, Professor MacQueen has worked mainly on the medieval period. His doctoral research led ultimately to Common Law and Feudal Society in Medieval Scotland (1993, reprinted in 'classic' edition with preface and critical introduction 2016). He has continued to build on that foundation since in a series of articles. Where the 1993 book focused most on the period 1250-1500, subsequent specifically medieval work has gone further back into the 12th century, highlighting the significance of canon as well as English law in Scottish developments, and considering links between royal and purely local justice in ever greater depth. The intention is finally to produce another book interpreting the pre-1250 period in detail. Also springing from the medieval research is an interest in how the period is treated in post-medieval times, with a central theme being its contribution to Scottish perceptions of legal distinctiveness (Scottish legal nationalism). A series of articles has highlighted in particular the contribution of Lord Cooper of Culross in the mid-20th century. A short book on Scottish legal nationalism is planned, pulling together the articles already published and adding to them the results of further research. Professor MacQueen’s legal history work has also encompassed the Literary Directorship of the Stair Society (1999-2016) and he was elected as the Society's Vice-President in 2017. He was Chair of the Scottish Medievalists Conference (2007-2011) and of the Scottish Records Advisory Council 2001-2008, and is a Vice-President of the Scottish Text Society (Council member since 1993). He is a Corresponding Fellow of the American Society for Legal History, and a member of the Law School’s Centre for Legal History.
Professor MacQueen’s work in obligations is mainly concerned with the law of contract and unjustified enrichment. He is the author or co-author of standard student texts on these subjects, and is also the Scottish editor of Atiyah’s Sale of Goods (10th, 11th, 12th and 13th edns, 2001, 2005, 2010, 2016). Professor MacQueen also recast the relevant chapters of the general textbook Gloag & Henderson’s Law of Scotland (14th edn, 2017) (of which he has been a General Editor since the 11th edition).
Three inter-related strands have developed his research in obligations: (1) membership of, first, the Lando Commission on European Contract Law (1995-2003) and then the Co-ordinating Committee of the Study Group on a European Civil Code (SGECC) from its inception in 1999 to its conclusion in 2008, which in turn led to involvement in the Co-PECL Common Frame of Reference project on European patrimonial law (here he worked especially on sales and services contracts as well as mandate, trusts and donation); (2) engagement with the law of other ‘mixed’ jurisdictions, notably South Africa and Louisiana; and (3) consideration of the impact of human rights on private law as a result of the Human Rights Act 1998 and the Scotland Act 1998. The work also draws on historical and comparative approaches, especially in collaborations with David Sellar. Professor MacQueen’s standing in comparative studies led to his election as a Vice-President of the World Society of Mixed Jurisdiction Jurists in 2002.
As a Scottish Law Commissioner, Professor MacQueen led the Commission’s review of Scottish contract law. This has led so far the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 and the Contract (Third Party Rights) (Scotland) Act 2017, plus the following Commission Discussion Papers and Reports (of which he was the principal author):
Discussion Papers on Interpretation (2011), Formation of Contract (2012), Third Party Rights in Contract (2014); Penalty Clauses (2016); and Remedies for Breach of Contract (2017)
Reports on Execution in Counterpart (2014), Third Party Rights in Contract (2016); Formation, Interpretation, Remedies for Breach of Contract, and Penalty Clauses (2018).
Joint projects with the Law Commission for England & Wales led to the Third Parties (Rights against Insurers) Act 2010, the Consumer Insurance (Disclosure and Representations) Act 2012, the Consumer Protection (Amendment) Regulations 2014, the Insurance Act 2015, Parts 1 and 2 of the Consumer Rights Act 2015, Part 5 of the Enterprise Act 2016, and the Intellectual Property (Unjustified Threats) Act 2017.
In intellectual property Professor MacQueen is now focusing on the legal history of the subject in Scotland since 1707, particularly copyright. Previously copyright and design law were his principal areas of interest in contemporary law, although he also carried out research on common law aspects of the subject such as passing off and breach of confidence. He was the first Director (2002-2007) of the AHRC Research Centre in Intellectual Property and Technology Law (SCRIPT). With Centre colleagues Charlotte Waelde, Graeme Laurie and Abbe Brown, Professor MacQueen helped to produced the first two editions of the innovative student text Contemporary Intellectual Property: Law and Policy (2007, 2010; now in 4th edn 2016). Research on copyright concentrated mainly on the development of the law in the digital environment, criticising the apparent expansion of exclusive rights but also considering the extent to which copyright could or should be replaced by contract in this context. His best-known work on design law is Copyright, Competition and Industrial Design (2nd edn, 1995).
Many aspects of Professor MacQueen’s interest in legal history, the law of obligations and intellectual property came together thanks to collaboration in and beyond the SCRIPT Centre in work on the protection of privacy as an aspect of personality rights. Professor MacQueen’s expertise in intellectual property is recognised, not only in his long-standing membership of the Law Society of Scotland Working Party on the subject, but also in his service on the DTI Intellectual Property Advisory Committee (2003-2005), as Scottish Representative on the UK Justice Ministry Advisory Panel on Public Sector Information (2004-2011), and as a member of the Intellectual Property Institute Advisory Council of Experts (1999-2009), the Legal Advisory Board of Creative Commons UK, and Intellectual Property Specialist Accreditation Panel of the Law Society of Scotland (1998-2017). Professor MacQueen was an invited member of the RSA group which produced the Adelphi Charter on Creativity, Innovation and Intellectual Property in 2005, and played a leading role in the British Academy Review of Copyright and Research in the Humanities and Social Sciences (2006).
Professor MacQueen has successfully supervised numerous doctoral students in all his areas of interest (especially copyright): 21 have gained their PhDs. His present leave of absence means that he is not currently taking on any new supervisions. Professor MacQueen has examined 23 PhDs at other universities in the UK and abroad, as well as numerous Masters research theses. He has been an external examiner of taught undergraduate and postgraduate programmes at Dundee, Strathclyde, Aberdeen, Glasgow, the National University of Ireland, Sheffield, London School of Economics, Robert Gordon’s Aberdeen, Queen’s University Belfast and Manchester.
He also has an active interest in legal education, and has published an introductory guide to the study of Scots law, now in its 5th edition edited by Megan Dewart (2016). He was examiner in Contract, Quasi-Contract and Delict in the Faculty of Advocates (1997-2016). He has been an invited external assessor of teaching and research quality at the Universities of Cork (2006) and Luxembourg (2008) and at the City University of Hong Kong (2018), and was a member of the Law Society of Scotland Law Schools Accreditation Panel (2001-2009).
Contract (Honours) (Course Organiser)
Contract and Unjustified Enrichment (Ordinary) (Course Organiser)
Contract Law in Europe (LLM)
Lords and Vassals in Medieval Scotland (Honours) (Course Organiser)
Pablo Letelier 'The link between the parties to enrichment claims in English and French law'
Books and Reports
Hector MacQueen, Lord Eassie, Gloag and Henderson: The Law of Scotland, (W Green, 2017)
Abstract: A survey of the Scottish legal system and Scottish private and commercial law as at 1 January 2017.
Hector MacQueen, Joe Thomson, Contract Law in Scotland, (Bloomsbury Professional, 2016)
Hector MacQueen, Christian Twigg-Flesner, Rick Canavan, Atiyah and Adams' Sale of Goods, (Pearson, 2016)
Abstract: A new edition of a classic textbook on the law of and relating to sale of goods. HLM's contribution is as Scottish editor covering Scots law dimensions of the subject.
Hector MacQueen, Andrew R C Simpson, Common Law and Feudal Society in Medieval Scotland: Classic Edition, (Edinburgh University Press, 2016)
Abstract: This is a reprint of the author's book first published in 1993, with a new preface by the author explaining the intellectual context in which it was written, and a critical introduction by Andrew R C Simpson (Aberdeen University) assessing the debate generated by the book since its publication.
Hector MacQueen, Miscellany VII, (Stair Society, 2015)
Hector MacQueen, Ian D Willock, Robin M White, The Scottish Legal System, (Bloomsbury Professional, 2013)
Abstract: The Scottish Legal System sets out to present the legal system and law of Scotland as a unique and constantly changing human enterprise' and places the Scottish legal system in its broader political and social contexts. This is achieved by covering not only the central aspects of the system, such as the courts and the legal profession, but also the border areas with constitutional law and jurisprudence. This well established text provides an up-to-date treatment of all significant developments affecting the Scottish legal system.
Hector MacQueen, Unjustified Enrichment, (W. Green, 2013)
Abstract: Provides all the necessary information required for developing a basic understanding of unjustified enrichment. Designed as a study and revision tool, this guide approaches the subject in a clear and uncomplicated way.
Hector MacQueen, Lord Eassie, Gloag and Henderson: The Law of Scotland, (W. Green, 2012)
Hector MacQueen, William Forbes, The Institutes of the Law of Scotland, (Edinburgh Legal Education Trust, 2012)
Abstract: William Forbes was the first holder of the Regius Chair of Civil Law at the University of Glasgow. His Institutes of the Law of Scotland, published in two parts in 1722 and 1730, has long since been unobtainable and known only to specialists. The present volume thus makes available for the first time since the eighteenth century a work of considerable interest and importance. Forbes’ Institutes fills a gap in our knowledge of Scots law between the writings of Stair and Mackenzie towards the end of the seventeenth century and those of Bankton and Erskine in the middle of the eighteenth. It also makes more accessible the content of Forbes’ much larger and wholly unpublished work, A Great Body of the Law of Scotland (of which the Institutes is largely a summary), which has lain almost unread in Glasgow University Library but is now available online. Forbes intended the Institutes as a definitive statement of private and criminal law at a time when, following the 1707 Union, they might appear to be under significant threat. There is still much which can be learned from it today.This edition contains an Introduction by Professor Hector MacQueen.
Hector MacQueen, Studying Scots Law, (Bloomsbury Professional, 2012)
Abstract: Studying Scots Law provides a highly readable account of the educational and training requirements for entry into the Scottish legal profession and provides essential information on law courses throughout Scotland as well as giving useful advice on study skills. Studying Scots Law provides law students with an invaluable source of reference throughout their studies. Contents includes: The Scottish Legal System - the law in Scotland; The Scottish Legal Profession; Entering the Profession - Courses; The university stage; Alternatives to the law degree; The Diploma in Legal Practice; Professional Training; Continuing legal education; Studying; Lectures, tutorials and seminars; Private study; Researching the law; Essays and examinations; Homily and epilogue; Appendices.
Hector MacQueen, Charlotte Waelde, Graeme Laurie, Abbe Brown, Contemporary Intellectual Property: Law and Policy, (Oxford University Press, 2010)
Hector MacQueen, John N. Adams, Atiyah's Sale of Goods, (Pearson, 2010)
Abstract: Authoritative, influential yet accessible to students this textbook addresses one of the most important aspects of commercial law. Its enduring role as the definitive guide to the law surrounding the sale of goods cements its position as the market leading text for undergraduate and postgraduate students alike.Uniquely, key differences between Scots and English law in this area are highlighted throughout equipping the reader with a thorough understanding of the regulatory regimes governing the sale of goods in both jurisdictions.
Hector MacQueen, Unjustified Enrichment, (W. Green, 2009)
Abstract: An introductory student text on the Scots law of unjustified enrichment.
Hector MacQueen, Miscellany VI, (Stair Society, 2009)
Hector MacQueen, Joe Thomson, Contract Law in Scotland, (Tottel Publishing, 2007)
Abstract: Introductory student survey of Scots contract law
Hector MacQueen, Lord Coulsfield, Gloag and Henderson: The Law of Scotland, (Thomson/W Green, 2007)
Hector MacQueen, Charlotte Waelde, Intellectual Property: The Many Faces of the Public Domain, (Edward Elgar, 2007)
Abstract: As technological progress marches on, so anxiety over the shape of the public domain is likely to continue if not increase. This collection helps to define the boundaries within which the debate over the shape of law and policy should take place. From historical analysis to discussion of contemporary developments, the importance of the public domain in its cultural and scientific contexts is explored by lawyers, scientists, economists, librarians, journalists and entrepreneurs. The contributions will both deepen and enliven the reader's understanding of the public domain in its many guises, and will also serve to highlight the public domain's key role in innovation. This book will appeal not only to students and researchers coming from a variety of fields, but also to policy-makers in the IP field and those more generally interested in the public domain, as well as those more directly involved in the current movements towards open access, open science and open source.
Hector MacQueen, Graeme Laurie, Abbe Brown, Contemporary Intellectual Property: Law and Policy, (Oxford University Press, 2007)
Abstract: The book offers an original perspective on intellectual property law. Beyond providing a thorough and up-to-date account of intellectual property law, the text examines the complex policies that inform and guide modern IP law at the domestic (including Scottish), European and international levels. The focus is on contemporary challenges to intellectual property law and policy.
Hector MacQueen, Reinhard Zimmermann, European Contract Law: Scots and South African Perspectives, (Edinburgh University Press, 2006)
Abstract: This book sets out initially to test the claim that, as combinations of civil and common law influences, the mixed systems of contract law in Scotland and South Africa have anticipated the content of the Principles of European Contract Law (PECL), concluded and published in 2003 by the unofficial Commission on European Contract Law. The studies go much further, however. Current official moves towards a European contract law within the European Union lend the critiques of PECL offered in this book an especial urgency and significance. A European contract law is nearer to reality than ever before, and mere policy critiques of that possibility are no longer enough. Technical and substantive assessments of PECL are also essential. This book provides just such assessments from the perspective of Scots and South African contract lawyers, and is offered to the European debate without prejudice as to the deeper policy questions. At the same time it may help to inform Scots and South African lawyers about the substance of international developments in the field, and suggest ways in which their still-vigorous and vital national laws may continue to be developed to remain in step with the needs of the present day.
Hector MacQueen, Miscellany Five by Various Authors, (Stair Society, 2006)
Abstract: Collection of essays on Scottish legal history.
Hector MacQueen, P. S. Atiyah, J. N. Adams, The Sale of Goods, (Pearson Longman, 2005)
Abstract: The latest edition of this book gives a full and critical account of the law of sale of goods in the United Kingdom. This eleventh edition has been brought up to date with legislative and common law changes that have taken place over the last four years. In particular, it covers the changes brought in by the new Consumer Guarantees Directive which has required substantial amendment to the Sale of Goods Act 1979. It also incorporates new material on software sales law and e-commerce law. Reflecting the increasing divergence of Scots and English law in this area, this edition again includes a treatment of the law as it applies in Scotland.
Hector MacQueen, Charlotte Waelde, Tinsley Lockhart, A Report on Digital Copyright Management in the Cultural Heritage Sector, (AHRB Research Centre for Studies in Intellectual Property and Technology Law, 2004)
Abstract: Findings of research undertaken between 2002 and 2004 in the Scottish cultural heritage sector.
Hector MacQueen, Studying Scots Law, (LexisNexis Butterworths, 2004)
Abstract: Studying Scots Law provides an account of the educational and training requirements for entry into the Scottish legal profession. The text outlines the functions of solicitors and advocates within the context of the Scottish Legal System. Studying Scots Law provides essential information on law courses throughout Scotland as well as giving useful advice on study skills, providing law students with a source of reference throughout their studies. Appendices include useful addresses and details on funding.
Hector MacQueen, Unjustified Enrichment, (Thomson/W Green, 2004)
Abstract: Introductory work on the Scots Law of Unjustified Enrichment.
Hector MacQueen, Charlotte Waelde, The Scope of Copyright, (Intellectual Property Institute, London, 2003)
Abstract: Considers the scope of copyright in the light of the digital revolution and raises issues about the future shape of the law requiring further investigation and reflection.
Anne Griffiths, Christina Ashton, David Brand, James Chalmers, Vic Craig, Stuart Cross, Valerie Finch, Alasdair Gordon, Hector MacQueen, Fundamentals of Scots Law, (Thomson/W Green, 2003)
Abstract: Fundamentals of Scots Law is a clear and comprehensive account of a broad range of the legal areas studied by students studying Scots law, or law as part of another course in Scotland. Included are chapter summaries, further reading lists and sample examination questions and answers.
Hector MacQueen, Charlotte Waelde, Audio-Visual Performers' Rights in the UK, (World Intellectual Property Organisation, 2003)
Abstract: Information on United Kingdom Relating to the Study on Transfer of the Rights of Performers to Producers of Audiovisual Fixations
Hector MacQueen, Charlotte Waelde, Information on United Kingdom Relating to the Study on Transfer of the Rights of Performers to Producers of Audiovisual Fixations, (World Intellectual Property Organisation, 2003)
Abstract: A technical report to investigate the protection given under UK Law to performers' of literary, dramatic, musical and/or artistic works.
Hector MacQueen, Antoni Vaquer, Santiago Espiau, Regional Private Laws and Codification in Europe, (Cambridge University Press, 2003)
Abstract: The development of European private law with particular reference to regional laws (such as those of Catalonia and Scotland) and codification.
Alan Boyle, Andrea Loux, Hector MacQueen, Christopher Himsworth, Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR, (Hart Publishing, 2002)
Abstract: Essays analysing the impact of the Human Rights Act 1998 in Scots law, with comparative reference to other systems. Includes essays on the Human Rights Act and Scotland Act, human rights and the law of crime, property, employment, family and private life.
Hector MacQueen, Miscellany IV, (Butterworths for The Stair Society, 2002)
Abstract: Volume 49 of the Stair Society series: a collection of essays on various aspects of the history of Scots law.
Hector MacQueen, Lord Hope of Craighead, M. B. Wise, S. P. L. Wolffe, A. R. W. Young, Parker Hood, Laura J. Dunlop, James Wolffe, David Johnston, Gloag & Henderson: The Law of Scotland, (W Green, 2001)
Hector MacQueen, Timothy H. Lim, Calum M. Carmichael, On Scrolls, Artefacts and Intellectual Property, (Sheffield Academic Press, 2001)
Abstract: The book is a collection of essays on various legal issues arising in connection with the editing and publication of the Dead Sea Scrolls, in particular the decision of the Israeli courts in Qimron v Shanks (2000).
Timothy Lim, Hector MacQueen, Calum M. Carmichael, On Scrolls, Artefacts, and Intellectual Property, (Sheffield Academic Press, 2001)
John W. Cairns, Hector MacQueen, Learning and the Law: A Short History of Edinburgh Law School, (Privately Published by the Faculty of Law, 2000)
Abstract: This describes the history of the Faculty of Law from 1707 to 2000, with lists of professors noting significant events and inlcuding extracts from reminiscneces of former studnts.
Hector MacQueen, Joe Thomson, Contract Law in Scotland, (Butterworths, 2000)
Hector MacQueen, The Reform of Civil Justice, (Edinburgh University Press, 1998)
Hector MacQueen, Innovation, Incentive and Reward: Intellectual Property Law and Policy, (Edinburgh University Press, 1997)
Hector MacQueen, Peter G. B. McNeill, Anona May Lyons, Atlas of Scottish History to 1707, (Scottish Society of Medievalists, 1996)
Hector MacQueen, Scots Law into the 21st Century: Essays in Honour of W. A. Wilson, (W. Green / Sweet & Maxwell, 1996)
Abstract: Bill Wilson, who was Lord President Reid Professor of Scots Law at the University of Edinburgh, died in 1994. This collection is dedicated to Bill Wilson's memory: it develops themes of his writings and teaching as well as being memoir and bibliography of his books and articles. A team of leading academic lawyers analyse the current state of Scots law and its future prospects.
Hector MacQueen, The Laws of Scotland: Stair Memorial Encyclopaedia, (Butterworths and the Law Society of Scotland, 1996)
Hector MacQueen, Copyright, Competition and Industrial Design, (Edinburgh University Press, 1995)
Abstract: This edition relates the history and assesses the limitations of copyright law from its inception in 1709, through the 1959 and 1988 Acts, to the present. Detailing some of the seminal cases in the development of copyright law, this is a jargon-free guide to a complex area of law.
Hector MacQueen, Common Law and Feudal Society in Medieval Scotland, (Edinburgh University Press, 1993)
Hector MacQueen, Money Laundering, (Edinburgh University Press, 1993)
Abstract: Officialy defined as the illegal acquisition and retention of another person's proceeds from drug traffiking, terrorism and other serious crimes the topic of money laundering is examined in this volume. Dealing specifically with issues raised by the new Criminal Justice act 1993; money laundering under EC and international law, and considers how financial institutions, the law and the police can tackle the problem.
Hector MacQueen, Albert Kiralfy, New Perspectives in Scottish Legal History, (Frank Cass, 1984)
Hector MacQueen, 'The future of unjustified enrichment in Scotland ', (2018), Restitution Law Review, Vol 25
Abstract: Noting that Goff & Jones has not had much impact in the Scottish courts, this paper shows that in enrichment law Scotland has not developed so much as a mixed as a Civilian system. But there have been two distinct phases in its development: the first blending Canonist ideas of restitutio with the Roman condictiones; the second, beginning towards the end of the twentieth century, using the model of German law as it has developed since the BGB came into force in 1900. Recent criticism of German law from within that system compels reconsideration of the Scottish approach, but the paper argues that in an uncodified system the force of the critique is much less and that, far from becoming fragmented, Scots enrichment law is acquiring a new sophistication. It is acknowledged that the law on unwinding failed contracts might still benefit from fresh analysis and approaches, while English law in general should not be lost to sight in Scotland.
Hector MacQueen, 'Magna Carta, Scotland and Scots Law ', (2018), Law Quarterly Review, Vol 134, pp 93-115
Abstract: The article is essentially an attempt to explain why, almost alone in the early modern English-speaking legal world, Scots lawyers gave no particular standing to Magna Carta, the great English medieval charter of liberties, either before or after the Anglo-Scottish Union of 1707. The article discusses a case in 1904 where an argument that Magna Carta affected the Crown's prerogative fishing rights in Scotland was rejected by the Court of Session, and also comments on the significance of the contribution made to the understanding of the charter by the Glasgow law professor W S McKechnie in his book on the subject (1904; 2nd edition 1914). But, as the article demonstrates, it is certain that Magna Carta was at its most important for Scotland in the year of its creation (1215), and that that importance probably did not long outlive King John (died 1216).
Hector MacQueen, 'Quo Vadis? ', (2017), Juridical Review, Vol 2017, pp 9-20
Abstract: Discussion of the state of the Scottish legal system post-Brexit and the 2014 independence referendum, as well as in the light of renewed uncertainty about the future of the Anglo-Scottish Union.
Hector MacQueen, 'Alan Ferguson Rodger 1944-2011 ', (2016), Juridical Review, Vol 2016, pp 255-290
Abstract: A reprint of a tribute to Lord Rodger of Earlsferry first published in Biographical Memoirs of Fellows of the British Academy 12 (2013) 361-401. The essay explains and discusses Lord Rodger's contribution to legal scholarship and public life.
Hector MacQueen, 'The Sophistication of Unjustified Enrichment: A Response to Nils Jansen', (2016), Edinburgh Law Review, Vol 20, pp 312-325
Hector MacQueen, 'Unilateral Promises: Scots Law Compared with the PECL and the DCFR', (2016), European Review of Private Law, Vol 24, pp 529-552
Abstract: This contribution compares the recognition of a general concept of unilateral promises, binding without acceptance by the promisee, in Article 2:107 PECL and Article II.-1:103 DCFR with the equivalent Scottish rule. The significance of this comparison is that the rule in question is significantly wider than that found in most other European legal systems, which tend to recognise only limited categories of unilateral promises or to impose a requirement of acceptance. Despite an authoritative restatement of the law by Lord President Gill in Regus (Maxim) Ltd v Bank of Scotland plc  CSIH 12, the Scottish courts have generally approached the concept in a restricted and restrictive way, although at least occasionally allowing it a role even in commercial cases. The decision of the UK Supreme Court in the Scottish appeal Royal Bank of Scotland v Carlyle  UKSC 13 poses a significant challenge to such caution, and the judges’ self-imposed restrictions are also inconsistent with the DCFR’s approach. On the other hand, the Scottish experience suggests that the DCFR’s requirement that notice of the promissory statement must reach the promisee to make it effective except when the statement is a public declaration may in turn be too demanding. It is also suggested, in opposition to a suggestion by Professor Martin Hogg, that from both the DCFR and the Scottish experience the conduct of the recipient after the statement is made may be relevant to the question of whether the statement can be treated as a binding promise.
Hector MacQueen, Charles Garland, Lauren Smith, 'Law Reform in the Scottish Parliament ', (2016), Scottish Parliamentary Review, Vol 3, pp 3-47
Abstract: A description and analysis of the progress of the Legal Writings (Counterparts and Delivery) (Scotland) Bill through the Scottish Parliament in 2014 and 2015, as the first Bill to be passed under the special Scottish Law Commission Bills procedure in the Parliament's Delegated Powers and Law Reform Committee. There is also comparison with the equivalent Westminster procedure for Law Commission Bills, and discussion of the prospects for the Succession (Scotland) Bill, introduced in June 2015 and passed in February 2016 as the second Bill under the new Scottish procedure.
Hector MacQueen, 'A Second Chamber for the Scottish Parliament? ', (2015), Scottish Affairs, Vol 24, pp 432-451
Abstract: In the light of renewed interest about a second chamber for the Scottish Parliament, this paper (a revised version of one first published in 2003) discusses the reasons why such a chamber might be thought necessary, in particular protection from the ‘tyranny of the majority’; the roles played by a second chamber in initiating as well as revising and reviewing legislation; and representing a territory's constituent regions. The paper next analyses how such ‘second chamber functions’ are currently discharged in the Scottish Parliament, suggesting that these are not yet adequate or sufficiently strong. The paper concludes by assessing the form a second chamber might take, including its size, its election/appointment, and qualifications for membership.
Hector MacQueen, Charles Garland, 'Signatures in Scots Law: Form, Effect and Burden of Proof', (2015), Juridical Review, pp 107-34
Hector MacQueen, 'Robin Evans-Jones, UNJUSTIFIED ENRICHMENT VOLUME 2: ENRICHMENT ACQUIRED IN ANY OTHER MANNER ', (2015), Edinburgh Law Review, Vol 19, pp 147-150
Hector MacQueen, Charles Garland, Lauren Smith, 'The Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 ', (2015), Scots Law Times, pp 111-119
Hector MacQueen, 'The War of the Booksellers: Natural Law, Equity and Literary Property in Eighteenth-Century Scotland', (2014), Journal of Legal History, Vol 35, pp 231-257
Abstract: This article analyses the case of Hinton v Donaldson (1773) in which thejudges of the Scottish Court of Session refused to follow their English brethrenin recognizing an author’s right of property outside the Statute of Anne(1710). The decision must be understood against the background of distinctnotions of common law and equity in Scots law, drawn from the Natural lawtradition of the European jus commune. At the same time the decision revealsdeveloping strands of Enlightenment thought and concepts of the judicialrole in relation to legislation.
Hector MacQueen, 'Geoffrey Wallis Steuart Barrow, 1924-2013: A Memoir', (2014), The Innes Review, Vol 65, pp 1-12
Abstract: A memorial tribute to Professor Geoffrey Barrow, analysing his contribution to the historiography of medieval Scotland, especially in the period 1100-1300, and commenting on some recent criticism.
Hector MacQueen, 'Lord Rodger: Jurist then Judge', (2014), Cambridge Journal of International and Comparative Law, Vol 3, pp 11-29
Abstract: An assessment of the extent to which Lord Rodger of Earlsferry's judicial technique deployed methods and approaches first developed in his Roman law scholarship under the influence of David Daube and Tony Honore at Oxford.
Hector MacQueen, 'The War of the Booksellers: Natural Law, Equity, and Literary Property in Eighteenth-Century Scotland', (2014), Journal of Legal History, Vol 35, pp 231-57
Abstract: This article analyses the case of Hinton v Donaldson (1773) in which the judges of the Scottish Court of Session refused to follow their English brethren in recognizing an author's right of property outside the Statute of Anne (1710). The decision must be understood against the background of distinct notions of common law and equity in Scots law, drawn from the Natural law tradition of the European jus commune. At the same time the decision reveals developing strands of Enlightenment thought and concepts of the judicial role in relation to legislation.
Hector MacQueen, 'Invincible or Just a Flesh Wound?: The Holy Grail of Scots Law', (2014), Legal Information Management: Journal of the British and Irish Association of Law Librarians, Vol 14, pp 2-14
Abstract: This paper, by Hector MacQueen, assesses the current state of Scots law and the Scottish legal system, arguing that as a small legal system which cannot be self-contained it is inevitably in a state of crisis, from which, however, it will not be rescued by Scotland becoming independent. Whatever happens after the referendum concerning Scottish Independence on 18 September 2014, the law is in need of active legislative reform, possibly codification, while the courts must become more positive in the attraction of business rather than, as it sometimes seems, seeking to push it away. Mere defence of the status quo will end in disablement and defeat.
Hector MacQueen, 'Alan Ferguson Rodger 1944-2011 ', (2013), Biographical Memoirs of Fellows of the British Academy, Vol XII, pp 361-401
Hector MacQueen, Dot Reid, 'Fraud or Error: A Thought Experiment?', (2013), Edinburgh Law Review, Vol 17, pp 343-69
Hector MacQueen, 'A Friendship in the Law: David Daube and T.B. Smith', (2013), Tulane Law Review, Vol 87, pp 811
Abstract: This Article is a study of the relationship between two academic lawyers of the twentieth century, David Daube and Sir Thomas Broun Smith, with particular focus on their period as colleagues at Aberdeen University in Scotland in the early 1950s. The Article also considers their position in relation to the then-recent experience of World War II and Nazi Germany. It highlights the importance of the relationship for the development of modern academic law in Scotland. The Appendices publish the texts of relevant correspondence between the two men.
Hector MacQueen, 'Change of Circumstances: CISG, CESL, and a Case from Scotland', (2012), Journal of International Trade Law and Policy, Vol 11, pp 300-05
Abstract: Purpose – The purpose of this paper is to present a critical analysis of the concept of 'change of circumstances' as a justification for judicial revision of contracts.Design/methodology/approach – The study analyses international legal texts on the subject in the light of a decision of the Inner House of the Court of Session in Scotland, Lloyds TSB Foundation for Scotland v. Lloyds Banking Group plc  CSIH 87 (currently subject to appeal to the UK Supreme Court).Findings – Whatever the merits of a change of circumstances doctrine, the Lloyds case does not provide a good example for its application.Research limitations/implications – The scope of a change of circumstances doctrine should be tested by further comparative study.Originality/value – This is the first consideration of the Lloyds case in an international and comparative context.
Hector MacQueen, Martin Hogg, 'Donation in Scots Law ', (2012), Juridical Review, pp 1-24
Abstract: This article provides an analysis of the nature of donation in Scots Law, and considers matters such as the formation and constitution of donative acts, the obligations and remedies of the parties, revocation of donative acts, and mixed donations. It also considers the relationship between donation and promise in Scots law.
Hector MacQueen, Charles Garland, Afson Barekat, Emma Boffey, 'The Proposed Common European Sales Law ', (2012), Scots Law Times, pp 65-70
Abstract: An analysis of the European Commission's proposals for reform of European contract law.
Hector MacQueen, 'Faulty Goods, Rejection and Connected Lender Liability ', (2011), Edinburgh Law Review, Vol 15, pp 111-15
Abstract: Analysis of Douglas v Glenvarigill Co Ltd 2010 CSOH 14 and Durkin v DSG Retail Ltd  CSIH 49.
Hector MacQueen, 'Colin Kidd, Union and Unionisms: Political Thought in Scotland, 1500-2000 ', (2010), Edinburgh Law Review, Vol 14, pp 151-53
Martin Hogg, Hector MacQueen, 'Melville Monument Liability: Some Doubtful Dicta', (2010), Edinburgh Law Review, Vol 14, pp 451-55
Abstract: This analysis piece examines the recent decision of the Inner House of the Court of Session in Khaliq v Londis  CSIH 13 on the subject of liability for wasted pre-contractual expenditure.
Hector MacQueen, 'Abandoned, Orphaned or Property for Ever?: Copyright, Prescription and Personal Bar', (2010), Edinburgh Law Review, Vol 14, pp 97-102
Abstract: Considers the House of Lords decision in Fisher v Brooker  UKHL 41 from a Scots law point of view.
Hector MacQueen, 'The Common Frame of Reference in Europe ', (2010), Tulane European and Civil Law Forum, Vol 25, pp 177-95
Abstract: Discusses the origins of the Draft Common Frame of Reference and assesses the need for further work in particular areas, taking as an example the subject of restitutionary damages for non-performance of a contract. Also assesses the possible relevance of the DCFR in work on African legal unity.
Hector MacQueen, 'The Google Book Settlement ', (2009), International Review of Intellectual Property and Competition Law, Vol 40, pp 247-249
Hector MacQueen, 'Martin J Doris, Dispute Avoidance and European Contract Law: Dealing with Divergence ', (2009), Edinburgh Law Review, Vol 13, pp 353-55
Hector MacQueen, 'Towards Utopia or Irreconcilable Tensions?: Thoughts on Intellectual Property, Human Rights and Competition Law', (2007), ICFAI Journal of Intellectual Property Rights, Vol 6, pp 66-78
Hector MacQueen, 'Searching for Privacy in a Mixed Jurisdiction ', (2006), Tulane European and Civil Law Forum, Vol 21, pp 73-97
Abstract: Considers the choices to be made by Scots law if it is to give adequate protection to privacy as required by Article 8 of the European Convention on Human Rights. Should it adapt the law of confidential information (borrowed from English law) or the civilian actio iniuriarum? Recent case law is reviewed and some unanswered questions considered.
Hector MacQueen, Charlotte Waelde, 'UK Copyright Law in the Digital Environment: Report to the XVIIth International Congress of Comparative Law, July 2006 (Response to Questionnaire III.B)', (2006), Electronic Journal of Comparative Law, Vol 10
Abstract: This paper reports on the position in the United Kingdom with regard to copyright in the digital environment. UK law recognises temporary reproduction and public communication as exclusive rights of the copyright owner. Copyright exceptions and limitations have received only limited (although by no means insignificant) adjustment as a result of the Copyright Directive 2001. It is not completely clear whether exceptions and limitations can be contractually excluded: the general position is probably that they can be, but there is a growing list of circumstances in which it is not possible. Technical protection and digital rights management systems are given protection.
Hector MacQueen, 'Reform of Archival Legislation: A Scots Perspective', (2005), Journal of the Society of Archivists, Vol 26, pp 201-14
Abstract: A discussion of the principles underlying regulation of national archives, comparing the position in Scotland and Ireland, and surveying the approach to reform in the former.
Hector MacQueen, 'Legal Nationalism: Lord Cooper, Legal History and Comparative Law', (2005), Edinburgh Law Review, Vol 9, pp 395-406
Abstract: Considers the linkages between Lord Cooper's analysis of Scottish legal history and his view of the importance of comparative law for modern Scots law development.
Hector MacQueen, 'Unjustified Enrichment in Mixed Legal Systems ', (2005), Restitution Law Review, Vol 13, pp 21-33
Abstract: Compares unjustified enrichment laws of Israel, Louisiana, Quebec, South Africa and Scotland; also considers enrichment chapter by Study Group on a European Civil Code.
Hector MacQueen, 'Towards Utopia or Irreconcilable Tensions?: Thoughts on Intellectual Property, Human Rights and Competition Law', (2005), SCRIPTed, Vol 2, pp 453-466
Hector MacQueen, ''My Tongue is my Ain': Copyright, the Spoken Word and Privacy', (2005), Modern Law Review, Vol 68, pp 349-77
Abstract: This article shows how under the present legislation in the UK copyright may exist in speech, in particular in interviews and conversations, provided that the words are recorded and constitute an original work. The argument is illustrated and supported by reference to reported cases from throughout the common law world, as well as to news stories and interviews with individuals ranging from Lord Denning to Michael Jackson. Issues arising from the collection of oral history are also discussed. It is further argued that, in addition to the internal analysis of copyright itself, such protection for the spoken word can be justified by the privacy and personality interests of speakers in the use of what they say.
Hector MacQueen, 'Reform of Archival Legislation: A Scots Perspective', (2005), Scottish Archives, Vol 11, pp 1-12
Abstract: Updated account of progress in Scotland towards comprehensive archival legislation, taking account of digitisation, FoI and other current issues.
Hector MacQueen, 'Reform of Archival Legislation: A Scots Perspective', (2005), Irish Archives: Journal of the Irish Society for Archives, Vol 10, pp 4-13
Abstract: An overview of progress towards Scottish archival legislation to autumn 2004.
Hector MacQueen, Charlotte Waelde, 'From Entertainment to Education: The Scope of Copyright', (2004), Intellectual Property Quarterly, Vol 3, pp 259-83
Abstract: Considers scope of copyright in the light of the digital revolution and raises issues about the present and future shape of the law. Argues that modern reform so far driven by needs of entertainment industries, but questions whether these reforms are equally appropriate in the educational context.
Hector MacQueen, 'Protecting Privacy: Campbell v MGN Newspapers', (2004), Edinburgh Law Review, Vol 8, pp 420-23
Abstract: Considers implications for privacy law of Campbell v MGN Newspapers  UKHL 53.
Hector MacQueen, 'Contract, Delict and the Bill of Rights: A Perspective from the United Kingdom', (2004), South African Law Journal, Vol 121, pp 359-94
Abstract: A critical comparison of the application of human rights in private law in South Africa and the UK.
Hector MacQueen, 'Protecting Privacy ', (2004), Edinburgh Law Review, Vol 8, pp 249-54
Abstract: Analysis of Wainwright v Home Office
Hector MacQueen, 'From Napster to Grokster: Decentralised File-Sharing not Copyright Infringement', (2003), E-L@w Review, pp 6-7
Hector MacQueen, 'Trade Secrets and Freedom of Speech: A Californian Perspective on Unscrambling DVDs', (2003), E-L@w Review, pp 3-7
Hector MacQueen, 'Scotland and a Supreme Court for the UK? ', (2003), Scots Law Times, pp 279-82
Abstract: Critical analysis of the Government's Consultation Paper on a supreme court for the UK replacing the present jurisdictions of the House of Lords and the Judicial Committee of the Privy Council.
Hector MacQueen, 'Mixing it?: Comparative Law in the Scottish Courts', (2003), European Review of Private Law, Vol 11, pp 735-53
Abstract: While one might expect Scotland as a mixed legal system to be comparative in its approach, there is little evidence of this to be found in the courts. Foreign case law referred to by the courts tends to stem from other Anglophone countries. Apart from the ECHR, other foreign decisions are virtually absent from citations in Scottish courts. But the significance of comparative law, it is finally argued, cannot be measured by analysis of citations alone.
Hector MacQueen, 'Looking Forward to a Mixed Future: A Response to Professor Yiannopoulos', (2003), Tulane Law Review, Vol 78, pp 411-18
Abstract: Argues that it is contrary to the spirit of mixed legal systems to analyse them on the basis that one part of the mix is good and another bad.
Hector MacQueen, 'Madster and Madster: File-sharing and Copyright Infringement Again', (2003), E-L@w Review, pp 8-9
Hector MacQueen, 'Scots Law News ', (2003), Edinburgh Law Review, Vol 7, pp 279-80
Hector MacQueen, 'Tears of a Legal Historian: Scottish Feudalism and the ius commune', (2003), Juridical Review, pp 1-28
Abstract: The extent to which the feudal land law of Scotland was a product of external influences from England and continental Europe, including the medieval ius commune, has sometimes been overlooked. The aim of this article will be to highlight some of the evidence for this external influence and to assess the potential for further research on the subject. The material considered ranges from the feudal charters of twelfth-century Scotland to the learned analysis of feudal law by Thomas Craig c. 1600. The whole is underpinned by reflection upon the thesis of Susan Reynolds that feudalism and feudal law are essentially late-medieval and later academic constructs, having little relationship to the realities of medieval landholding.
Hector MacQueen, 'Scots Law News ', (2003), Edinburgh Law Review, Vol 7, pp 143-46
Hector MacQueen, 'Scots Law News ', (2003), Edinburgh Law Review, Vol 7, pp 1-4
Hector MacQueen, 'Human Rights and Private Law in Scotland: A Response to President Barak', (2003), Tulane Law Review, Vol 78, pp 363-78
Abstract: Discusses the domestication of the ECHR as a result of the Human Rights and Scotland Acts 1998.
Hector MacQueen, 'Scots Law News ', (2002), Edinburgh Law Review, Vol 6, pp 143-45
Hector MacQueen, 'Scots Law News ', (2002), Edinburgh Law Review, Vol 6, pp 269-70
Hector MacQueen, 'Expectations of the Law in 12th and 13th Century Scotland ', (2002), Tijdschrift voor Rechtsgeschiedenis, Vol 70, pp 279-290
Abstract: Considers the influence of the church and the canon law in the development of the Scots common law between 1100 and 1250, arguing that the interplay between these influences and those of English law and native custom, helped produce a distinctive system of law in medieval Scotland.
Hector MacQueen, 'Scots Law News ', (2002), Edinburgh Law Review, Vol 6, pp 1-4
Hector MacQueen, 'Laws and Languages: Some Historical Notes from Scotland', (2002), Electronic Journal of Comparative Law, Vol 6
Hector MacQueen, 'Editorial ', (2001), Edinburgh Law Review, Vol 5, pp 269-72
Hector MacQueen, 'Editorial ', (2001), Edinburgh Law Review, Vol 5, pp 127-29
Hector MacQueen, 'Editorial ', (2001), Edinburgh Law Review, Vol 5, pp 1-3
Hector MacQueen, 'Scots and English Law: The Case of Contract', (2001), Current Legal Problems, Vol 54, pp 205-29
Abstract: The article argues that the Scots law of contract exemplifies the mixed nature of the system and that it is the product, not of the Common Law dimension overwhelming the Civilian one, but of a genuine and critical interaction between the two.
Hector MacQueen, 'The Copyright and the Information Society Directive ', (2001), E-L@w Review, pp 4-7
Abstract: An analysis and assessment of the Directive and its impact upon the law of copyright.
Hector MacQueen, 'Mixed jurisdictions and convergence Scotland ', (2001), International Journal of Legal Information, Vol 29, pp 309-22
Abstract: The paper discusses the role to be played by mixed systems in the convergence of European private law, taking Scotland as its exemplar.
Hector MacQueen, 'Andrew Burrows, Understanding the Law of Obligations (Oxford: Hart Publishing, 1998) ', (2000), Edinburgh Law Review, Vol 4, pp 234-36
Hector MacQueen, Nils Jansen, Lena Olsen, Carolina Vicente E. Cunha, Willibald Posch, Luisa Antoniolli Deflorian, 'House of Lords (opinions of the Lords of Appeal for Judgement in the case Kleinwort Benson Ltd. v. Lincoln City Council and others) 29 October 1998 ', (2000), European Review of Private Law, Vol 8, pp 335-83
Abstract: [Scottish perspective at pp. 352-57]The facts of Kleinwort Benson Ltd v. Lincoln City Council will become clear from the following case notes. The case has attracted quite some attention in England. This is not only because it includes the final speech on the law of restitution by Lord Goff of Chievely, it also raises some highly interesting questions. How should interest rate swaps with local authorities be judged? When should recovery for mistake of law be allowed? Do judicial decisions act retrospectively?It is especially the latter question which is a central point in the discussion of the case in the ensuing case notes. Foreign observers obviously are baffled by the fully retrospective effect which the majority accords to judicial change. Is not this against the whole idea of precedent in the common law?For further reading as to English comments one may consult M. BRIDGE, Restitution and Retrospective Law; J.M. FINNIS, ‘The Fairy Tale's Moral’,  115 Law Quarterly Review 170–175; L. SMITH, ‘Restitution for Mistake of Law’, Restitution Law Review 1999, 148–158.
Hector MacQueen, 'International Exhaustion of Trade Marks Rights: A Scottish Contribution to the Debate', (2000), Intellectual Property Quarterly, Vol 4, pp 357-66
Hector MacQueen, 'Scots Law and the Road to the New ius commune ', (2000), Electronic Journal of Comparative Law, Vol 4
Hector MacQueen, 'Editorial ', (2000), Edinburgh Law Review, Vol 4, pp 127-28
Hector MacQueen, 'Michael Furmston, Takao Norisada and Jill Poole, Contract Formation and Letters of Intent (Chichester: John Wiley & Sons, 1998) ', (2000), Edinburgh Law Review, Vol 4, pp 122-24
Hector MacQueen, 'Editorial ', (2000), Edinburgh Law Review, Vol 4, pp 1-2
Hector MacQueen, 'Editorial ', (1999), Edinburgh Law Review, Vol 3, pp 1-2
Hector MacQueen, 'Editorial ', (1999), Edinburgh Law Review, Vol 3, pp 269-71
Hector MacQueen, 'Intellectual Property in a Peripheral Jurisdiction ', (1999), Computers and Law, Vol 10, pp 30-35
Hector MacQueen, Laura Macgregor, 'Specific Implement, Interdict and Contractual Performance ', (1999), Edinburgh Law Review, Vol 3, pp 239-46
Hector MacQueen, 'Scots Law and the Road to the New ius commune ', (1999), Law Librarian, Vol 30, pp 19-25
Hector MacQueen, 'Copyright in Cyberspace: Shetland Times v Wills', (1998), Journal of Business Law, pp 297-99
Hector MacQueen, 'Quis custodiet?: The Scotland Bill, Human Rights and the Judges', (1998), Scotland Forum, pp 8-9
Hector MacQueen, 'Concrete Solutions to Liability: Changing Perspectives in Contract and Delict', (1998), Arbitration: Journal of the Chartered Institute of Arbitrators, Vol 64, pp 285-91
Hector MacQueen, 'Andrew Burrows and Ewan McKendrick, Cases and Materials on the Law of Restitution ', (1998), Edinburgh Law Review, Vol 2, pp 125-26
Hector MacQueen, 'The Scotland Bill and Private Law ', (1998), Scotland Forum
Hector MacQueen, 'Editorial ', (1998), Edinburgh Law Review, Vol 2, pp 1-2
Hector MacQueen, 'Judicial Reform of Private Law ', (1998), Scottish Law & Practice Quarterly, Vol 3, pp 134-58
Hector MacQueen, 'Copyright, the Internet and the Shetlands ', (1998), Edinburgh Law Review, Vol 2, pp 241
Hector MacQueen, 'Diritto Privato Europeo. Ed by Nicolò Lipari (Padua: CEDAM, 1997) ', (1998), Edinburgh Law Review, Vol 2, pp 374-374
Hector MacQueen, 'Assignation and Breach of Contract ', (1997), Scottish Law & Practice Quarterly, Vol 2, pp 114-22
Hector MacQueen, 'Mixture or Muddle?: In Defense of Revisionism in Scottish Legal History', (1997), Zeitschrift für Europäisches Privatrecht, pp 359-84
Hector MacQueen, 'Editorial ', (1997), Edinburgh Law Review, Vol 1, pp 153-54
Hector MacQueen, 'Remedies for Breach of Contract: The Future Development of Scots Law in its European and International Context', (1997), Edinburgh Law Review, Vol 1, pp 200-26
Abstract: This paper, first presented on 21 October 1995 at a joint seminar of the Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, considers the future development of the law in this area, first by considering its history and current state in comparative terms and drawing the conclusion that it is characterised by a mixture of Civilian and Common Law elements; second, by comparing Scots law with the provisions on breach contained in recently published proposals for a harmonised law of contract (the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract law prepared by the Lando Commission, and the draft code for the United Kingdom prepared on behalf of the English Law Commission by Harvey McGregor in the late 1960s) and in international conventions on the sale of goods. Although Scots law emerges reasonably well from this exercise, there are a number of points to be taken on board in any future reform, as well as some insights into important underlying principles.
Hector MacQueen, 'Third Party Rights in Contract: English Reform and Scottish Concern', (1997), Edinburgh Law Review, Vol 1, pp 488-493
Hector MacQueen, 'Remoteness and Breach of Contract ', (1996), Juridical Review, pp 295-303
Abstract: It has become generally accepted that the law of Scotland that, in cases arising from breach of contract, the two-fold test established in English decision in Hadley v. Baxendale is applicable. While the English courts have tended of late to conflate the two-fold test into a single text, MacQueen argues that this is not necessarily the approach of the Scottish courts.
Hector MacQueen, 'Editorial ', (1996), Edinburgh Law Review, Vol 1, pp 1
Hector MacQueen, Alan Peacock, 'Implementing Performing Rights ', (1995), Journal of Cultural Economics, Vol 19, pp 157-175
Abstract: The purpose of this contribution is to move the study of performing rights forward and away from discussion of matters of principle to matters of implementation. Our procedure is to identify the chronological steps which have to be taken by composers or their representatives in ensuring that their property right can be exploited, resulting in payment for performances. At each step we shall attempt to offer observations, based principally but by no means solely on UK experience, on both the economic and legal issues that arise. The first stage in the exploitation of copyright is to create a work in a discernible form. In music this has traditionally taken the form of a score. However, today most popular music will take the form of a taped performance. This is followed by critical discussion of the term of copyright protection and whether a monopoly is created in respect of performing rights. In addition to performing rights, account has also to be taken of performers' rights, raising issues of where copyright protection ends and performers' rights begin. The second stage of exploitation is publication, promotion and performance of the work, a matter so complex that it has necessitated the establishment of collective organisations of authors and publishers to be effective. Policy issues arise about the relations between the members of such organisationsinter se, and between the organisations and users, and these are illustrated by a number of examples from the history of the British Performing Right Society. Disputes led to the establishment of specialist tribunals in the UK and elsewhere, and there have also been investigations of collecting societies by the British and EC competition authorities. The global market for music means that such issues transcend national frontiers, and there is some discussion of how performing rights are enforced internationally. The paper concludes by identifying a number of major issues: whether or not collecting societies operate against the consumer interest (it is suggested, generally not); the extent to which ‘serious’ music is or should be subsidised by diversion of the income of the collecting societies in its support; and the possible extension of collective copyright administration into other fields, against the background of ever-increasing cross-border activity in cultural matters generally.
Hector MacQueen, 'Regiam Majestatem, Scots Law and National Identity ', (1995), Scottish Historical Review, Vol 74, pp 1-25
Alan Bundy, H. MacQueen, 'The New Software Copyright Law ', (1994), The Computer Journal, Vol 37
Hector MacQueen, 'A Scottish Case on Unregistered Design Right ', (1994), European Intellectual Property Review, pp 86-87
Hector MacQueen, 'Unjustified Enrichment and Breach of Contract ', (1994), Juridical Review, pp 137-66
Hector MacQueen, 'Extending Intellectual Property: Producers v Users', (1994), Northern Ireland Legal Quarterly, Vol 45, pp 30-45
Hector MacQueen, 'Trans-national Legal Education in Edinburgh ', (1993), European Review of Private Law, Vol 1, pp 327-30
Hector MacQueen, 'Protecting Software: Copyright or sui generis', (1993), International Journal of Law and Information Technology, Vol 1, pp 236-47
Hector MacQueen, 'Unjustified Enrichment in Scots Law ', (1992), Journal of Business Law, pp 333-34
Hector MacQueen, 'Keeping it Scottish: Change in Scottish Legal Profession and Legal Education', (1992), Law Librarian, Vol 23, pp 192-99
Hector MacQueen, 'Scots Law in Historical Perspective ', (1991), Law Librarian, pp 85-93
Hector MacQueen, 'Restrictive Covenants (Scotland) ', (1990), Journal of Business Law, pp 341-45
Hector MacQueen, T. D. Fergus, John W. Cairns, 'Legal Humanism in Renaissance Scotland ', (1990), Journal of Legal History, Vol 11, pp 40-69
Hector MacQueen, 'Design Right and Semiconductor Topographies ', (1990), Journal of the Law Society of Scotland, Vol 35, pp 422-24
Hector MacQueen, 'Desuetude, the cessante maxim, and trial by combat in Scots law ', (1986), Journal of Legal History, Vol 7, pp 90-97
Hector MacQueen, 'Pleadable Brieves, Pleading and the Development of Scots Law ', (1986), Law and History Review, Vol 4, pp 403-22
Abstract: Until recently there was a depressing consensus about Scottish legal history in the medieval and early modern periods. It was accepted that in the twelfth and thirteenth centuries the Scots had gone some way to building a legal system on the model found in contemporary England, involving the holding of courts in the localities by sheriffs and justiciars on ayres, the use of royal writs or brieves to commence litigations, and the determination of cases by juries or assizes. The fullest account of Scottish law, Regiam Majestatem, was based on the twelfth century English text Glanvill. The wars and other skirmishes with England which began in 1296 and continued into the sixteenth century brought an end to the development of the ‘Scoto-Norman’law and legal system however. Cut off from its basic inspiration and lacking either a central court structure or a legal profession, Scots law regressed throughout the later middle ages. Demands for better justice led the king by the end of the fifteenth century to establish a group of royal councillors to hold judicial sessions or sittings at which such complaints might be heard. The councillors—the lords of council and session—might be either ecclesiastics or laymen; the former were more numerous and possessed greater legal skills. The procedure of the emerging court thus followed that of the ecclesiastical courts and the substantive law which developed was also canonical and civilian in character. By the mid-sixteenth century the Session was established as the main civil court in Scotland and Scots law had made a fresh start, severed from its original roots.
Hector MacQueen, A. Borthwick, 'Three Fifteenth Century Cases ', (1986), Juridical Review, pp 123-51
Hector MacQueen, A. D. M. Forte, 'Contract Procedure and Formation and the Battle of the Forms ', (1986), Journal of the Law Society of Scotland, Vol 31, pp 224-29
Hector MacQueen, 'A Copyright Anomaly Revealed ', (1985), Journal of the Law Society of Scotland, pp 198-99
Hector MacQueen, 'Mackenzie's Institutions in Scottish Legal History ', (1984), Journal of the Law Society of Scotland, Vol 29, pp 498-501
Hector MacQueen, 'The Wee McGlen Case: Representations of Scottishness, Passing Off and Unfair Trading', (1983), European Intellectual Property Review, pp 18-20
Hector MacQueen, 'Dissasine and Mortancestor in Scots Law ', (1983), Journal of Legal History, Vol 4, pp 21-49
Hector MacQueen, W. J. Windram, 'The Sources and Literature of Scots Law: A Select Critical Bibliography, 1936-1982', (1983), Journal of Legal History, Vol 4, pp 1-20
Hector MacQueen, 'The Monopolies Commission and the Scottish Factor ', (1982), Journal of Business Law, pp 316-19
Hector MacQueen, 'The Brieve of Right in Scots law ', (1982), Journal of Legal History, Vol 3, pp 52-70
Hector MacQueen, 'Private law's revolutionaries Authors, codifiers and merchants?' in Sarah Worthington, Graham Virgo, Andrew Robertson (ed.) Revolution and Evolution in Private Law (Hart Publishing 2018) 31-49
Abstract: Has there ever really been a revolution in private law, never mind the law of obligations? This chapter approaches that question by first considering the relationship between law and revolution in general as set out by the late Harold J Berman. In rejecting Berman’s view that Roman law was not in its own right part of the Western legal tradition, I suggest rather that the Roman jurists provided many of that tradition’s foundational concepts, especially in private law and obligations. These included juristic presentation of private law as a unified whole comprising three subjects: persons (the actors in law), things (put simply, their property and obligations), and actions (the means by which they could claim property and obligations from others). As Berman recognised to a limited extent, these concepts played a further role in legal development from the Middle Ages to the present, not just in juristic writings, but also in association with the ecclesiastical and political revolutions on which Berman focused most. For example, the tripartite division of private law is to be found in all post-revolutionary codifications achieved or attempted from the French Revolution on, including those in the USA. The use made of Roman concepts did however change over time, and it is here, if anywhere, that we may detect revolution rather than evolution inside the law itself. Within obligations, a general understanding of contract as comprising all agreements had its roots in Roman texts; but Roman law itself had never taken the idea very far as a tool for legal analysis. Instead it was developed in juristic writing from the sixteenth century on, in part responding to the realities of contemporary commerce which had long ceased to correspond with the Roman categorisations of particular contracts. The argument therefore is that if the development of private law can be characterised as revolutionary at any point, then the revolutionaries included those who wrote about law in a systematic manner, the codifiers whose work followed on from political revolutions, and the merchants whose business needs otherwise left the law behind.
Hector MacQueen, 'Delivery of deeds and voluntary obligations ' in Andrew Steven, John MacLeod, Ross Anderson (ed.) Nothing so Practical as a Good Theory (Avizandum Publishing 2017) 102-118
Abstract: A study of recent developments in the law of delivery of deeds, in particular the statutory recognition of electronic delivery of both paper and electronic documents. The paper considers further reform of the law of delivery in the light of the changes already made, and explores its significance in the formation of voluntary obligations by way of offer and acceptance (in particular the postal acceptance rule), unilateral promise and third-party rights in contract.
Hector MacQueen, Stephen Bogle, 'Private autonomy and the protection of the weaker party Historical' in Stefan Vogenauer, Stephen Wetherill (ed.) General Principles of Law (Hart Publishing 2017) 269-296
Hector MacQueen, 'Pragmatism, precepts and precedents Commercial law and legal history' in Andrew Simpson, Scott Styles, Adelyn Wilson, Euan West (ed.) Continuity, Change and Pragmatism in the Law (Aberdeen University Press 2016) 10-42
Abstract: This study in honour of the late Angelo Forte begins with his work on the history of the development of commercial law in Scotland. It starts from the observation that his evidence base needs to be expanded so that his conclusions can be tested more widely. While he focused on insurance and bills of exchange, and these are obviously important commercial subjects, they are perhaps not at the absolute heart of commercial law. Instead it is suggested that the core of the subject is the law of sale and that nearly everything else in commerce revolves around sales. It is also an important point that bills of exchange and insurance were unknown to Roman law and (especially insurance) were relatively modern developments in 1700. The question of where these two subjects fitted into the Roman structure of contracts which Scots law certainly had received by Stair’s time was one of the difficult questions of the late seventeenth and eighteenth centuries in Scotland. A further line of enquiry is what was happening in the eighteenth and early nineteenth centuries to the many other mercantile contracts in Scots law, notably sale and hire (location). Similar kinds of shift and conflict between the established Scottish common law and mercantile custom or the law merchant are apparent in these areas too. The argument takes a little further Fortes basic point that in mercantile matters Scots law was developed through understandings of a ius gentium and a law merchant for which the most readily available (but not the only) evidence was the decisions of the English courts; a development which however became, despite resistance, a recognition of those decisions as authorities rather than simply evidence of some wider general norms.
Hector MacQueen, 'Implementation by statute What the future holds?' in Matthew Dyson, James Lee, Shona Wilson Stark (ed.) Fifty Years of the Law Commissions (Hart Publishing 2016) 201-214
Abstract: An analysis of law reform by statute implementing Law Commission Reports, with especial reference to the Law Commission Bills procedures at Holyrood and Westminster.
Hector MacQueen, 'Performance rights in music Some perspectives from economics, law and history' in Ilde Rizzo, Ruth Towse (ed.) The Artful Economist (Springer International Publishing 2016) 113-131
Abstract: This paper discusses the liberal economic approach to problems of copyright law espoused by Alan Peacock, in particular in relation to performing rights in music. His contribution showed a man of independent mind, not at all afraid to disagree with the established wisdom or to draw conclusions that surprised those for and with whom he worked. In the spirit of an argument amongst friends, the paper analyses the extent to which Peacock’s view of the economics of copyright resembled or differed from those who had gone before, including David Hume and Arnold Plant. It is suggested that the approach was another example of Peacock’s rejection of William Baumol’s analysis of the economics of the performing arts as always bound to require public subsidy. Peacock showed that composers and their publishers adjusted their positions to the demands of the market and also generated significant revenue for themselves in meeting consumer demand, in particular through collective action by way of membership organisations such as the Performing Right Society. In the 1970s he also advocated the imposition of a levy on blank media enabling private copying of content, an issue which has recently returned to the fore in debates about further copyright reform to meet the digital challenge. The paper concludes with some comments on Peacock’s reluctance to extend his economic analysis to more general questions about copyright law and policy.
Hector MacQueen, 'Reforming Third Party Rights in Contract: a Scottish Viewpoint ' in Lena Peters (ed.) Eppur si muove: The Age of Uniform Law – Festschrift for Michael Joachim Bonell, to celebrate his 70th birthday (UNIDROIT 2016) 1066-1086
Abstract: An analysis of the Scottish Law Commission's proposed reform of the Scots law of third party rights in contract set in a mainly European comparative perspective (including the English Contracts (Rights of Third Parties) Act 1999, the UNIDROIT Principles of International Commercial Contracts, and the Draft Common Frame of Reference). The paper shows how basic doctrinal analysis reveals that Scots law has never been quite on a coherent footing, which explains why it has been found awkward, if not impossible, to apply in practice. How these difficulties will be met by the proposed reforms is then set out in some detail.
Hector MacQueen, 'Literary Property in Scotland in the Eighteenth and Nineteenth Centuries ' in Isabella Alexander, H Tomas Gomez-Arostegui (ed.) Research Handbook on the History of Copyright Law (Edward Elgar 2016) 119-138
Abstract: A survey of copyright history in Scotland from c.1707 to c.1900, with particular emphasis on the eighteenth century.
Hector MacQueen, 'Reply to Shawn J Bayern "The nature and timing of contract formation" ' in Larry A DiMatteo, Martin Hogg (ed.) Comparative Contract Law (Oxford University Press 2015) 109-113
Hector MacQueen, 'Contract Formation between Distant Parties The Scottish Experience' in Larry A DiMatteo, Martin Hogg (ed.) Comparative Contract Law (Oxford University Press 2015) 90-108
Hector MacQueen, Alan Borthwick, 'Another Fifteenth-century Case ' in Hector MacQueen (ed.) Miscellany VII (Stair Society 2015) 133-162
Hector MacQueen, '"It's in the Post!" Distance Contracting in Scotland 1681-1855' in Frankie McCarthy, James Chalmers, Stephen Bogle (ed.) Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie (Open Book Publishers 2015) 47-71
Hector MacQueen, 'Alan Peacock Dissenting The Problem of Devolution' in Ray Perman (ed.) Alan Peacock Dissenting (The David Hume Institute 2015) 15-21
Hector MacQueen, 'Tame Magnates? The Justiciars of Later Medieval Scotland' in Stephen Ian Boardman, Julian Goodare (ed.) Lords and Men in Scotland and Britain, 1300-1625 (Edinburgh University Press 2014) 93-120
Hector MacQueen, Elizabeth Cooke, 'Law Reform in a Political Environment The Work of the Law Commissions' in David Feldman (ed.) Law in Politics, Politics in Law (Hart Publishing 2013) 141-54
Abstract: The authors survey the links between Government (in the UK and Scotland) and Law Commission programmes and proposals for law reform, analysing recent developments and the politics which inevitably underpin the relationships involved.
Hector MacQueen, 'The Law of Obligations in Scots Law ' in Reiner Schulze, Fryderyk Zoll (ed.) The Law of Obligations in Europe (Sellier 2013) 213-44
Hector MacQueen, 'Ae fond kiss A private matter?' in Andrew Burrows, David Johnston, Reinhard Zimmermann (ed.) Judge and Jurist (Oxford University Press 2013) 473-488
Abstract: The paper, a contribution written in honour of the late Lord Rodger of Earlsferry, discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between the poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges appearing in the court. The paper assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.
Hector MacQueen, 'Europeanisation of Contract Law and the Proposed Common European Sales Law ' in Larry A DiMatteo, Severine Saintier, Keith Rowley (ed.) Commercial Contract Law (Cambridge University Press 2013) 529-58
Abstract: A critical overview of the proposed Common European Sales Law (CESL) together with a historical comparison with the harmonisation/unification of sale of goods law in the United Kingdom by the Sale of Goods Act 1893.
Hector MacQueen, 'Public Law, Private Law, and National Identity ' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 168-99
Abstract: This chapter reflects on the relationship between private law and national identity, and on the related problem of the continuities and discontinuities between legal and political nationalism. Scotland provides an exceptionally fertile ground to investigate those connections, as the Scottish legal system survives as a relatively autonomous body of law more than three centuries after the disappearance of the Scottish state into the United Kingdom. The chapter traces the way in which the defenders of the distinctiveness of Scots law have conceived of its relationship with political nationalism on the one hand, and national identity in a more cultural register on the other. It concludes by offering a contribution to the debate on the role that even a relatively apolitical brand of law might play in the construction of national identities.
Hector MacQueen, Barbara Dauner-Lieb, Peter W Tettinger, 'Specific Performance and Right to Cure ' in Gerhard Dannemann, Stefan Vogenauer (ed.) The Common European Sales Law in Context (Oxford University Press 2013) 612-46
Abstract: A comparison of the CESL regime on the remedies of specific performance and right of cure with the positions of English, German and Scots law. Hector MacQueen was grateful to be appointed an honorary English lawyer for the purpose of writing this chapter!
Hector MacQueen, 'The War of the Booksellers Hinton v Donaldson' in John P. Grant, Elaine E. Sutherland (ed.) Pronounced for Doom (Avizandum 2013) 178-94
Abstract: An account of the background, the parties, the lawyers and the judges in the great 1773 case on literary property which decided that in Scotland (unlike England) the law was based only on statute. The House of Lords in England followed suit the next year, giving copyright law a legal character which it has retained down to the present day.
Hector MacQueen, 'Third Party Rights in Contract ' in Lei Chen, C.H. (Remco) van Rhee (ed.) Towards a Chinese Civil Code (Brill 2012)
Abstract: This chapter provides a comparative and historical study, ranging across civil law and common law systems, of the problems and pitfalls of codification with special reference to China and Scotland and the law of third party rights in contract. It provides arguments for the inclusion of a provision on this subject in the Chinese Contract Law and for a statutory modernization to rescue Scots law from the position of being, as one critic has put it, stuck in the seventeenth century. The chapter discusses the codification of third party rights in Scotland, Hong Kong and China. In third party rights codification, risk is inherent, not just in codifying, but in legislating generally. An aspect of the risk of fixation is the ‘disconnect’ which can open up between the text and what happens in court and in practice. The other possible hazard is incompleteness.
Hector MacQueen, 'A Post-Positivist Outlook from the Thistle ' in Neil Walker (ed.) MacCormick's Scotland (Edinburgh University Press 2012) 3-24
Abstract: The paper argues that Scottish-ness emerges constantly in Neil MacCormick's writings in the same way as it did in his conversation and teaching, naturally and appropriately to the point under discussion, and as un-self-consciously as is ever possible in the act of serious writing. Sometimes the point of departure is Scotland in some aspect or other (usually political), and quite frequently what MacCormick wanted to say was about and for Scotland; but it was all part of a wider picture in the end, at least European in its overall scope and ambition. Scottish-ness is thus part of the texture, the woof and warp, of MacCormick’s work: not to be over-emphasised, but, equally, not to be overlooked or under-played.
Hector MacQueen, 'Legal Afterword ' in Hector MacQueen (ed.) Scottish Formularies (Stair Society 2011) 361-74
Abstract: Commentary on the significance of the formularies and process by brieve in Scottish legal history.
Hector MacQueen, 'Gain-based Damages for Breach of Contract and the DCFR ' in Rui Pinto Duarte, Marta Tavares de Almeida, Assunção Cristas, Jose Lebre de Freitas (ed.) Estudos em Homenagem ao Professor Doutor Carlos Ferreira de Almeida (Almedina, Portugal 2011) 447-58
Abstract: Assesses the extent to which the DCFR recognises gain-based claims on breach of contract.
Hector MacQueen, 'Intellectual Property and the Common Law in Scotland c1700-c1850 ' in Catherine W. Ng, Lionel Bently, Giuseppina D'Agostino (ed.) The Common Law of Intellectual Property (Hart Publishing 2010) 21-43
Abstract: Discusses the development of patents and copyright in Scotland from the 1707 Union with England to the abolition of the countries' separate patent systems in the 1850s, and explores how Scottish jurists integrated the subject within their analyses of property law and personality rights.
Hector MacQueen, 'David Daube and T B Smith ' in Ernest Metzger (ed.) David Daube (Traditio Iuris Romani, Glasgow 2010) 11-36
Abstract: A study of a friendship that lasted for nearly 40 years.
Hector MacQueen, 'The scrolls and the legal definition of authorship ' in Timothy H. Lim, John J. Collins (ed.) The Oxford Handbook of the Dead Sea Scrolls (Oxford University Press 2010) 723-748
Abstract: This article presents the facts and decision in Elisha Qimron v. Hershel Shanks; some general remarks on copyright law; and the Issues re-ventilated in Dr. Lionel Sawkins v. Hyperion Records Ltd. The fundamental copyright issue in the Dead Sea Scrolls case was what constituted authorship. The discussion agrees with Jane Gisburg's claim that reconstructive editorial work is that of an author. It also notes that the existence of copyright in an edited text does not enable the right-holder to ‘lock up scholarship’ or prevent access to the material. The very act of publication precludes this, since copyright law does not bar anyone from reading, and the work may be used for private study and research, or quoted from for purposes of criticism and review, so long as that amounts to fair dealing.
Hector MacQueen, 'Illegality and immorality in contracts Towards European principles' in Arthur S. Hartkamp, Martijn W. Hesselink, Ewoud Hondius, C. Mak, Edgar Du Peron (ed.) Towards a European Civil Code (Kluwer Law International 2010) 555-70
Abstract: Discusses origins of PECL provisions on this subject and their translation into the DCFR, analyses their content and purpose, the relationship to property and unjustified enrichment, and compares with other possible solutions, notably that of the Gandolfi contract code.
Hector MacQueen, 'The King's Council and Church Courts in Later Medieval Scotland ' in Harry Dondorp, Jan Hallebeek, Tammo Wallinga, Laurens Winkel (ed.) Ius Romanum - Ius Commune - Ius Hodiernum (Scientia Verlag, Amsterdam & Aalen 2010) 277-87
Abstract: Analysis from printed records of the relationship between spiritual and temporal jurisdictions in Scotland 1466-1503.
Hector MacQueen, 'Lawyers' Edinburgh 1908-2008 ' in Andrew G. Fraser (ed.) Book of the Old Edinburgh Club (Old Edinburgh Club 2010) 27-53
Abstract: Considers the physical setting for legal practice and education in Edinburgh in 1908 and compares that with the situation a century later. A contribution to the 2008 centenary celebrations of the Old Edinburgh Club.
Hector MacQueen, 'Law and Economics, David Hume and Intellectual Property ' in Nick Kuenssberg (ed.) Argument Amongst Friends (The David Hume Institute 2010) 9-14
Abstract: While David Hume never discussed the notion of intellectual property, his ideas about property suggest that he would have resisted the idea that IP is property. Instead, like Adam Smith and Lord Kames, he would have seen IPRs as privileges granted for (and limited by) the public interest. Such recent measures as the Digital Economy Act 2010, founded on the rhetoric equiparating unauthorised file-sharing with theft, would have been rejected as conceptually wrong as well as insufficiently considered on empirical grounds.
Hector MacQueen, 'Prava a poviinosti prodavajiciho a kupujiciho ' in Jan Dvorak, Jin Svestka, Lubos Tichy (ed.) Sborník statí z diskusnich fór o rekodifikaci obcanskeho práva (Eva Rozkotova: IFEC, Prague 2009) 126-44
Abstract: Critical comparison of the draft new Czech Civil Code provisions on the rights and duties of sellers and buyers with the relative provisions of the Draft Common Frame of Reference and the UK Sale of Goods Act.
Hector MacQueen, 'Appropriate for the Digital Age? Copyright and the Internet' in Lilian Edwards, Charlotte Waelde (ed.) Law and the Internet (Hart Publishing 2009) 183-225
Abstract: Assesses changes to copyright law both actual and prospective in the light of the demands created by the Internet and the phenomenon of Web 2.0.
Hector MacQueen, 'A Hitchhiker's Guide to Personality Rights in Scots Law, Mainly with Regard to Privacy ' in Niall Whitty, Reinhard Zimmerman (ed.) Rights of Personality in Scots Law (Dundee University Press 2009) 549-588
Abstract: Considers the need to develop the law of privacy in Scotland, suggesting in particular the analogical use of statutes such as the Protection from Harassment, Regulation of Investigatory Powers, Data Protection and Copyright Acts.
Hector MacQueen, 'Unjustified Enrichment, Contract and Subsidiarity ' in Vernon Valentine Palmer, Elspeth Christie Reid (ed.) Mixed Jurisdictions Compared (Edinburgh University Press 2009) 322-54
Abstract: A comparative study of the relationship between unjustified enrichment and contract in Louisiana and Scots law, critically analysing the utility of the concept of subsidiarity as a means of determining the relationship between the two branches of law.
Martin Hogg, Hector MacQueen, 'Scottish Jurisdictional Notes ' in John Cartwright, Martijn Hesselink (ed.) Precontractual Liability in European Private Law (Cambridge University Press 2009)
Abstract: This volume analyses thirteen cases, from the perspective of sixteen national European legal systems, in order to explore the legal nature of the precontractual phase and the liability which may follow a break-off of precontractual negotiations. The precontractual phase is difficult to characterise and analyse in either legal or practical terms. The negotiating parties have begun their journey together, but they are not yet in the relationship - the contract - which is their aim. The negotiations may fail after a lengthy period in which either party may have incurred significant expenses and invested time and effort. The break-off of the negotiations may come as a shock to one party where the negotiations were far advanced, or at least where there was nothing to suggest that they were not likely to lead to their fruition in the contract. The disappointed party is therefore likely to seek a remedy.
Hector MacQueen, 'Contract and consensus Two Scottish cases' in Essays in Honour of Konstantinos D. Kerameus (Ant. N. Sakkoulas / Bruylant 2009) 827-36
Abstract: Discusses the cases of W S Karoulias SA v Drambuie Liqueur Co Ltd (No 2) 2005 SLT 813 and Moyarget Developments v Mathis  CSOH 136 and how they would have been decided under the Principles of European Contract Law.
Hector MacQueen, 'Scotland's First Women Law graduates An Edinburgh centenary' in Hector L. MacQueen (ed.) Miscellany VI (Stair Society 2009) 221-65
Abstract: A study of the lives of the two women who in 1909 became the first of their sex to graduate LLB, set in the context of the development of women's role in the legal profession in the 20th century.
Hector MacQueen, 'Towards Utopia or Irreconcilable Tensions? Thoughts on Intellectual Property, Human Rights and Competition Law' in Manoj Kumar Pattaniak (ed.) Human Rights and Intellectual Property (Icfai University Press 2008) 22-39
Abstract: Reprint of article originally published in SCRIPT-ed 2(4) 2005.
Hector MacQueen, 'Reinhard Zimmermann and Scots Law ' in Antoni Vaquer (ed.) European Private Law Beyond the Common Frame of Reference (Europa Law Publishing 2008) 33-39
Abstract: Analysis of Zimmermann's contributions to Scots law, as inspiration, editor, author and source.
Hector MacQueen, 'Scots Law Ius quaesitum tertio, Promise and Irrevocability' in Eltjo J. H. Schrage (ed.) Ius Quaesitum Tertio (Duncker & Humblot, Berlin 2008) 357-83
Abstract: History of the development of the doctrine of ius quaesitum tertio in Scots law, in particular its debt to canon law and the concept of the enforceable unilateral promise.
Hector MacQueen, 'Good faith, mixed legal systems and the principles of European Contract Law ' in Mads Andenas, Silvia Diaz Alabart, Basil Markesinis, Hans Micklitz, Nello Pasquini (ed.) Liber Amicorum Guido Alpa (British Institute of International and Comparative Law 2007) 614-644
Abstract: The concept of good faith in PECL is explored against its use in mixed legal systems, especially South Africa and Scotland.
Hector MacQueen, 'Introduction ' in Hector MacQueen, Charlotte Waelde (ed.) Intellectual Property (Edward Elgar 2007) xi-xviii
Hector MacQueen, 'Copyright Law Reform Some Achievable Goals?' in Fiona Macmillan (ed.) New Directions in Copyright Law (Edward Elgar 2007) 55-81
Abstract: Considers reform of the copyright law, exploring the need for reform, the purposes of copyright, cumulation issues with other IPRs as well as within copyright itself, and suggesting a European copyright project akin to the Principles of European Contract Law and the Study Group for a European Civil Code.
Hector MacQueen, 'A Picture of what will be some Day the Law of the Civilised Nations Comparative Law and the Destiny of Scots Law' in Towards Europeanization of Private Law (C H Beck 2007) 521-38
Hector MacQueen, 'Scots Law ' in Jan M. Smits (ed.) Elgar Encyclopedia of Comparative Law (Edward Elgar 2006) 642-652
Abstract: Surveys Scots law as an example of a mixed legal system, also discussing the impact of devolution, human rights and European private law.
Hector MacQueen, 'Peter Birks and Scots Enrichment Law ' in Andrew Burrows, Alan Rodger (ed.) Mapping the Law (Oxford University Press 2006) 401-17
Abstract: Peter spent some years as Professor of Civil Law at Edinburgh University. Although he had never had occasion previously to look into the Scots law of unjust enrichment, he produced two remarkable papers which were to shake this area of Scots law to its core. This chapter traces the various ways in which Peter's influence was brought to bear not only on academics and law reformers but on the Scottish courts, culminating in decisions which sought to set the law off on a new and more coherent path.
Hector MacQueen, 'Diritto privato e devolution in Scozia ' in Ermanino Calzolaio (ed.) Il Diritto Privato Regionale nella Prospettiva Europea (Giuffre Editore Milano 2006) 87-110
Hector MacQueen, 'Legal nationalism The case of Lord Cooper' in N. M. Dawson (ed.) Reflections on Law and History (Four Courts Press 2006) 83-98
Abstract: Assesses Lord Cooper's legal nationalism, arguing that its pre-WWII character was different from the post-War one associated with the Cooper-Smith ideology.
Hector MacQueen, 'Good Faith ' in Hector MacQueen, Reinhard Zimmerman (ed.) European Contract Law (Edinburgh University Press 2006) 43-73
Abstract: This chapter considers good faith in the Principles of European Contract Law (PECL). It explains that Article 1:201 of PECL declares that each party must act in accordance with good faith and fair dealing, and that this duty may not be excluded or limited by the parties. The chapter argues that the contract laws of the world's uncodified mixed legal systems – in which Common Law and Civil Law sources, rules, concepts and methods have interacted for long periods – often show striking parallels with the results of PECL.
Hector MacQueen, 'Some notes on wrang and unlaw ' in Hector MacQueen (ed.) Miscellany Five (Stair Society 2006) 13-26
Abstract: An assessment of the evidence for the concept of wrang and unlaw, mainly before 1350.
Hector MacQueen, 'Scotland Politics, Government and Law' in David Cabrelli (ed.) Commercial Agreements in Scotland (W Green 2006) 283-308
Hector MacQueen, 'Canon Law, custom and legislation Law in the Reign of Alexander II' in Richard D. Oram (ed.) The Reign of Alexander II, 1214-49 (Brill 2005) 221-251
Abstract: A study of legal developments in the reign of Alexander II highlighting the interaction of native law-making with canon and English law and the development of law in Europe generally.
Hector MacQueen, 'Illegality and immorality in contracts Towards European principles' in Antoni Vaquer (ed.) La Tercera Parte de los Principios de Derecho Contractual Europeo (Tirant Lo Blanch, Valencia 2005) 549-566
Abstract: Discusses ch 15 of PECL and relevant articles of the Gandolfi code.
Hector MacQueen, 'Two Toms and an ideology for Scots Law T B Smith and Lord Cooper of Culross' in Elspeth Reid, David L. Carey Miller (ed.) A Mixed Legal System in Transition (Edinburgh University Press 2005) 44-72
Abstract: This chapter focuses on the ‘Cooper–Smith ideology’, which can be summarised broadly as follows. Modern Scots law was a ‘mixed’ legal system, in which a basically Roman law or Civilian structure of private law had been overlaid since the 1707 Union by influence from the English Common Law. The principal agents of that influence had been the common legislature in Westminster, UK government departments in Whitehall, and the common appeal court in the House of Lords. The influence from England had rarely if ever been for the good. The salvation of Scots law lay in drawing upon its own historical roots and the experience of other ‘mixed’ systems, such as those of South Africa and Louisiana, where too a basically Roman Civilian system was threatened by infiltration from other legal traditions.
Hector MacQueen, 'Glory with Gloag or the stake with stair? T B Smith and the Scots Law of Contract' in Elspeth Reid, D. L. C. Miller (ed.) A Mixed Legal System in Transition (Edinburgh University Press 2005) 138-172
Abstract: This chapter assesses T B Smith's work on contract law and discusses its impact upon the development of the subject in Scotland. It does so by first describing what appeared to be the general state of the law when Smith entered the academic arena at Aberdeen in 1949, and then considering those parts of it which Smith made the subject of special study in the 1950s. It argues that he was driven primarily by two concerns. One was to refute the view, certainly current in the early 1950s, that the Scots law of contract was scarcely different in any significant respect from its English counterpart. The other concern was to press an argument that, in the areas where difference was particularly apparent, the Scots law provided solutions to well-known and much criticised limitations of English contract law, the requirement of consideration, and the doctrine of privity. Further, properly understood, the Scottish rules on error in contract provided a more satisfactory approach than did the English law of mistake and misrepresentation, also the subject of great controversy in the 1950s.
Hector MacQueen, Charlotte Waelde, 'The Scope of Copyright ' in Surinder Kaur Verma, Raman Mittal (ed.) Intellectual Property Rights (New Delhi: Indian Law Institute 2004) 246-58
Hector MacQueen, 'Illegality and Immorality in Contracts Towards European Principles' in A. S. Hartkamp (ed.) Towards a European Civil Code (Kluwer Law International 2004) 415-30
Abstract: Considers development of illegality/immorality principles in PECL and the Gandolfi code of contract.
Hector MacQueen, 'Fraser, Patrick, Lord Fraser (1817–1889) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, 'Guthrie, Sir David, of that ilk (d. 1474) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, 'Carrick, John (d. 1380/81) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, John Simmons, 'Cunningham Family (per. c.1340–1631) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, 'Kennedy Family (per. c.1350–1513) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, J. Baird-Smith, 'Neilson, George (1858–1923) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, 'Montgomery Family (per. c.1350–c.1485) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, 'Intellectual Property in a peripheral jurisdiction A matter of policy?' in David Vaver, Lionel Bently (ed.) Intellectual Property in the New Millennium (Cambridge University Press 2004) 58-76
Abstract: Critical analysis of policy approaches to intellectual property in devolved Scotland.
Hector MacQueen, G. W. T. Omond, 'Robertson, James Patrick Bannerman, Baron Robertson of Forteviot (1845–1909) ' in H. C. G. Matthew, Brian Harrison (ed.) Oxford Dictionary of National Biography (Oxford University Press 2004)
Hector MacQueen, 'The Scottish Legal System ' in Jim Crowther, Ian Martin, Mae Shaw (ed.) Renewing Democracy in Scotland (Niace 2003) 52-56
Hector MacQueen, 'Survival and Success The Kennedys of Dunure' in Alasdair Ross, Steve Boardman (ed.) The Exercise of Power in Medieval Scotland c.1200-1500 (Four Courts Press, Dublin 2003) 67-94
Abstract: Study of the Gaelic kindred of Kennedy of Dunure in Carrick, showing their rise to power in Scottish government from 13th to 15th centuries - an adaptable and ambitious family which did not lose touch with its Gaelic roots and culture despite this success.
Hector MacQueen, 'Reporter 'Illegality' ' in Ole Lando (ed.) Principles of European Contract Law (Kluwer Academic Publishers 2003) ch 15
Hector MacQueen, 'Unjustified Enrichment ' in Fundamentals of Scots Law (Thomson/W Green 2003) 267-314
Abstract: Overview of Scots enrichment law
Hector MacQueen, 'Illegal and immoral contracts ' in Santiago Espiau Espiau, Antoni Vaquer Aloy (ed.) Bases de un Derecho Contractual Europeo (Tirant lo Blanche 2003) 287-296
Abstract: Analysis of chapter 15 of the Principles of European Contract Law.
Hector MacQueen, 'The case for a Second Chamber ' in Policy Institute (ed.) What Future for Scotland? (Policy Institute, Edinburgh 2003) 47-61
Abstract: The paper considers the debate over a second chamber for the Scottish Parliament in the light of principle and comparative experience, including the reform of the House of Lords in the United Kingdom, and sets out what the requirements of a second Scottish chamber might be.
Hector MacQueen, 'Scots Law in Europe The Case of Contract' in Hector MacQueen, Antoni Vaquer, Santiago Espiau Espiau (ed.) Regional Private Laws and Codification in Europe (Cambridge University Press 2003) 102-17
Abstract: The mixed system of Scots contract law has in many (although not all) ways anticipated the solutions of the Principles of European Contract Law. Scots law must use PECL to put its own house in order, but it and other mixed systems have much to offer in the development of European private law.
Hector MacQueen, 'Response to Jan Smits The Future of European Contract Law' in Towards a European Ius Commune in Legal Education and Research (Intersentia/Metro 2002) 261-68
Abstract: Response to Jan Smits' contribution to the same volume, arguing that while uniformity of law is indeed not a condition for the realisation of a single market, the pursuit of European principles is not a misplaced enterprise but for the present adds to diversity and in the future, especially with regard to e-commerce, may become essential.
Hector MacQueen, 'Two Visitors in the Session, 1629 and 1636 ' in Miscellany IV (Butterworths for The Stair Society 2002) 155-68
Abstract: Analysis of records of visits to the Court of Session in 1629 and 1636 by Christopher Lowther and Sir William Brereton respectively.
Hector MacQueen, 'Private Rights, Private Law, and the Private Domain ' in Alan Boyle, Chris Himsworth, Andrea Loux, Hector MacQueen (ed.) Human Rights and Scots Law (Hart Publishing 2002) 141-76
Abstract: Argues for the horizontal effect of the ECHR under the Human Rights Act and considers the implications for the law of delict, contract and privacy. Also considers which non-public institutions might be considered public authorities for the purposes of applying Convention rights, in particular the privatised industries, the Press and the churches.
Hector MacQueen, 'Payment of Another's Debt ' in David Johnston, Reinhard Zimmermann (ed.) Unjustified Enrichment (Cambridge University Press 2002) 458-89
Abstract: The article considers Scots law on payment of another's debt in light of taxonomic shifts in Scots law, comparative law and the Clive enrichment code.
Hector MacQueen, 'Scots Law and European Private Law ' in Lindsay Farmer, Scott Veitch (ed.) The State of Scots Law (Butterworths Scotland 2001) 59-73
Abstract: The paper assesses, with special reference to the work of the Commission on European Contract Law (the Lando Commission), the contribution which the mixed system of Scots law can make to the converegence of European private law.
Hector MacQueen, 'History of Negligence in Scots law ' in Eltjo J. H. Schrage (ed.) Negligence (Duncker & Humblot, Berlin 2001) 273-307
Abstract: The paper discusses the development of the concept of negligence in Scots law from medieval times down to Donoghue v Stevenson (1932).
Hector MacQueen, 'Girth Society and the Law of Sanctuary in Scotland' in John W. Cairns, Olivia Robinson (ed.) Critical Studies in Ancient Law, Comparative Law and Legal History (Hart Publishing 2001) 333-52
Abstract: The paper discusses the medieval evidence for the law of sanctuary (girth) in medieval Scotland, and discusses why the sanctuary at Holyrood was the only one to survive the Scottish Reformation in 1560.
Hector MacQueen, 'Copyright and the Dead Sea Scrolls A British Perspective' in Timothy H. Lim, Hector L. MacQueen, Calum M. Carmichael (ed.) On Scrolls, Artefacts and Intellectual Property (Sheffield Academic Press 2001) 99-115
Abstract: The paper considers the application of current UK copyright law to the facts of Qimron v Shanks (2000).
Hector MacQueen, 'Negligence ' in Kenneth Reid, Reinhard Zimmermann (ed.) A History of Private Law in Scotland (Oxford University Press 2000) ch 17
Abstract: This chapter focuses on the year 1795 until 1932, a period which marks a great shift and change in the history of the law of delict in Scotland. In the early period of Scots’ law of delict, negligence does appear however it was treated as an element of particular claim rather than as a general basis for liability. This concept of negligence changed as the Scottish courts became increasingly aware of the jurisdictions of the concept of duty, reasonableness, and foreseeability. The chapter also outlines the convergence of the Scots and English law of negligence during the 19th century which affected the radical shift and orientation of the Scots law on negligence and duty.
Hector MacQueen, 'Third Party Rights in Contract jus quaesitum tertio' in Kenneth Reid, Reinhard Zimmermann (ed.) A History of Private Law in Scotland (Oxford University Press 2000) 220-51
Hector MacQueen, 'Copyright and the Internet ' in Lilian Edwards, Charlotte Waelde (ed.) Law and the Internet (Hart Publishing 2000) 181-224
Hector MacQueen, 'Good Faith in the Scots Law of Contract An Undisclosed Principle?' in A. D. M. Forte (ed.) Good Faith in Contract and Property (Hart Publishing 1999) 5-37
Abstract: The paper argues for a submerged principle of good faith in Scots contract law, and proposes that such a doctrine could explain and make coherent the decisions of the courts on pre-contractual liability (culpa in contrahendo).
Hector MacQueen, 'Copyright and the Internet ' in Lilian Edwards, Charlotte Waelde (ed.) Law and the Internet (Hart Publishing 1997) 67-93
Hector MacQueen, 'Contract (Scotland) Act 1997 ' in Current Law Statutes (Sweet and Maxwell 1997)
Hector MacQueen, 'The Foundation of Law Teaching at the University of Aberdeen ' in David L. Carey Miller, Reinhard Zimmermann (ed.) The Civilian Tradition and Scots Law (Duncker and Humblot, Berlin 1997) 53-71
Hector MacQueen, 'Software Transactions and Contract Law ' in Lilian Edwards, Charlotte Waelde (ed.) Law and the Internet (Hart Publishing 1997) 121-35
Hector MacQueen, 'Linguistic Communities in Medieval Scots Law ' in Christopher W. Brooks, Michael Lobban (ed.) Communities and Courts in Britain, 1150-1900 (London, Hambledon Press 1997) 13-24
Hector MacQueen, 'Memoir of Professor William Adam Wilson, MA, LLB, LLD, FRSE, Lord President Reid Professor of Law in the University of Edinburgh, July 28, 1928 - March 14, 1994 ' in Hector MacQueen (ed.) Scots Law into the 21st Century (W. Green / Sweet & Maxwell 1996) 1-9
Hector MacQueen, 'Title to Sue (Contract) ' in The Laws of Scotland ( 1996) 814-964
Hector MacQueen, 'The Contribution of W. A. Wilson to Scots Law ' in Hector MacQueen (ed.) Scots Law into the 21st Century (W. Green / Sweet & Maxwell 1996) 10-18
Hector MacQueen, 'Unjust Enrichment in Scots Law ' in Eltjo J. H. Schrage (ed.) Unjust Enrichment (Duncker & Humblot 1995)
Hector MacQueen, 'Glanvill resarcinate Sir John Skene and Regiam Majestatem' in A. A. MacDonald, Michael Lynch, Ian B. Cowan (ed.) The Renaissance in Scotland ( 1994) 385-403
Hector MacQueen, 'Industrial Designs ' in The Laws of Scotland ( 1993)
Hector MacQueen, 'Plant Varieties ' in The Laws of Scotland ( 1993)
Hector MacQueen, 'Trade Marks ' in The Laws of Scotland ( 1993)
Hector MacQueen, 'Introduction ' in The Laws of Scotland ( 1993)
Hector MacQueen, 'Passing Off ' in The Laws of Scotland ( 1993)
Hector MacQueen, 'The Kin of Kennedy, 'Kenkynnol' and the Common Law ' in Alexander Grant, K. J. Stringer (ed.) Medieval Scotland (Edinburgh University Press 1993) 274-96
Hector MacQueen, 'Intellectual Property in Europe ' in The Laws of Scotland ( 1993)
Hector MacQueen, 'Stair's Later Reputation as a Jurist The Contribution of William Forbes' in William M. Gordon (ed.) Miscellany Three (Stair Society 1992) 173-94
Hector MacQueen, 'The Laws of Galloway A Preliminary Survey' in Richard D. Oram, Geoffrey Stell (ed.) Galloway (Scottish Scoiety for Northern Studies 1991) 131-43
Hector MacQueen, 'Scots Law under Alexander III ' in Norman H. Reid (ed.) Scotland in the Reign of Alexander III (John Donald Publishers 1990) 74-102
Hector MacQueen, John W. Cairns, T. D. Fergus, 'Legal Humanism and the History of Scots Law Sir John Skene and Thomas Craig' in John MacQueen (ed.) Humanism in Renaissance Scotland (Edinburgh University Press 1990) 48-74
Hector MacQueen, 'Voluntary Obligations Title to Sue' in The Laws of Scotland (Butterworths 1988) 527-61
Hector MacQueen, 'The Brieve of Right Revisited ' in Richard Eales, David Sullivan (ed.) The Political Context of Law (Hambledon Press 1987) 17-25
Hector MacQueen, 'A Second Chamber for the Scottish Parliament?: II' 2015
Abstract: A revised version of a paper first published in 2003, this paper explores the question of a second chamber for the Scottish Parliament, especially in the light of the absolute majority gained by the SNP in the 2011 Scottish parliamentary elections, and its use of that majority to control the committees of the Parliament. Since the committees were supposed to fulfil the second chamber function of providing an alternative perspective on draft legislation, especially government legislation, their domination by the governing party is a serious problem. At a time when the workings of the Scottish Parliament are also being scrutinised anew in the light of their suitability for increasing powers, it seems useful once again to analyse what a Scottish second chamber might do and what it might look like, making use especially of comparative material.
Hector MacQueen, Alan Peacock, 'Implementing Performing Rights ' 2015
Abstract: The purpose of this contribution is to move the study of performing rights forward and away from discussion of matters of principle to matters of implementation. Our procedure is to identify the chronological steps which have to be taken by composers or their representatives in ensuring that their property right can be exploited, resulting in payment for performances. At each step we shall attempt to offer observations, based principally but by no means solely on UK experience, on both the economic and legal issues that arise. The first stage in the exploitation of copyright is to create a work in a discernible form. In music this has traditionally taken the form of a score. However, today most popular music will take the form of a taped performance. This is followed by critical discussion of the term of copyright protection and whether a monopoly is created in respect of performing rights. In addition to performing rights, account has also to be taken of performers’ rights, raising issues of where copyright protection ends and performers’ rights begin. The second stage of exploitation is publication, promotion and performance of the work, a matter so complex that it has necessitated the establishment of collective organisation of authors and publishers to be effective. Policy issues arise about the relations between the members of such organisations inter se, and between the organisations and users, and these are illustrated by a number of examples from the history of the British Performing Right Society. Disputes led to the establishment of specialist tribunals in the UK and elsewhere, and there have also been investigations of collecting societies by the British and EC competition authorities. The global market for music means that such issues transcend national frontiers, and there is some discussion of how performing rights are enforced internationally. The paper concludes by identifying a number of major issues: whether or not collecting societies operate against the consumer interest (it is suggested, generally not); the extent to which ‘serious’ music is or should be subsidised by diversion of the income of the collecting societies in its support; and the possible extension of collective copyright administration into other fields, against the background of ever-increasing cross-border activity in cultural matters generally.
Hector MacQueen, 'A Second Chamber for the Scottish Parliament? ' 2015
Abstract: The paper considers the debate over a second chamber for the Scottish Parliament in the light of principle and comparative experience, including the reform of the House of Lords in the United Kingdom, and sets out what the requirements of a second Scottish chamber might be.
Hector MacQueen, 'Copyright Law Reform: Some Achievable Goals?' 2014
Abstract: The paper surveys the prospects for reform of copyright law, noting the limitations imposed by such immutables as the international law of the subject, but arguing that ways forward are nevertheless to be found. In particular there is room for systematic re-thinking and international academic work of the kind already found in contract law.
Hector MacQueen, 'The Dead Sea Scrolls and the Legal Definition of Authorship ' 2014
Abstract: The paper discusses the debate arising from the Israeli case of Qimron v Shanks (2000) about the copyright (if any) in reconstructive editorial work on ancient documents, focusing particularly on the example provided by the Dead Sea Scrolls but also referring to other examples, in particular that of music, debated in the English Court of Appeal in Hyperion Records v Sawkins. It is argued that such reconstructive work attracts and deserves copyright for the reconstructing editor, and the opposed position is analysed critically.
Hector MacQueen, 'Trust, Loyalty and George Heriot ' 2014
Abstract: A speech given at the Anniversary Dinner of the Governors of George Heriot's Trust on Founder's Day (2 June) 2014. The suggestion made is that the Heriot Trust set up in 1623-4 was the first trust ever set up under Scots law, and accordingly it was fortified by the appointment of "overseers" whose duty it was to see that the trustees (the Town Council of Edinburgh) carried out George Heriot's wishes as expressed in his trust. Such protectors ceased to be necessary as the consequences of breach of trust became clear as a matter of law. But now the Scottish Law Commission is suggesting their re-introduction in a world where many trusters have no idea of who their trustees actually are and about whether they can in fact be trusted.
Hector MacQueen, 'Appropriate for the Digital Age?: Copyright and the Internet' 2014
Abstract: This paper, eventually published as two separate chapters, surveys the major issues affecting copyright as the result of digitisation and the rise of the Internet. In particular it considers infringement, exceptions, technical protection measures and rights management systems, and licensing. The paper concludes by asking how copyright may support realisation of the Internet’s potential for all legitimate stakeholders. It seems clear that the commercial possibilities require copyright protection coupled with some form or other of digital rights management. But it is equally clear that the individual consumers for whom the commercial products are ultimately intended will not accept a merely passive role in this marketplace.
Hector MacQueen, 'The Europeanisation of Contract Law and the Proposed Common European Sales Law ' 2014
Abstract: A critical discussion of the rise of European contract law and in particular the proposed Common European Sales Law, comparing it with the UK's Sale of Goods Act 1979 both historically and substantively.
Hector MacQueen, 'Gain-Based Damages for Breach of Contract and the DCFR ' 2014
Abstract: A discussion of the English case law on gain-based damages followed by an assessment of whether such damages are recognised under the Draft Common Frame of Reference (2009) and, if not, whether they should be.
Hector MacQueen, 'Scots and English Law c.1603: Uniting or Dividing Kingdoms?' 2014
Abstract: A brief discussion of how Scots and English lawyers saw their respective laws and legal systems at the time of the Union of the Crowns, when the prospect of a union of laws was also put before them.
Hector MacQueen, 'Public Law, Private Law and National Identity ' 2014
Abstract: Analysis of law as a badge of national identity, with particular reference to the example of Scots law, where private law and criminal law are more commonly invoked in this context than public law. The paper takes a historical approach to its subject and concludes by discussing whether private law is fundamentally a-national or not.
Hector MacQueen, 'Contract and Consensus: Two Scottish Cases' 2014
Abstract: A note on the Scottish cases of W S Karoulias SA v Drambuie Liqueur Co Ltd (No 2)  CSOH 112 and Moyarget Developments Ltd v Mathis  CSOH 136, analysing them in the light of the relevant provisions of the Principles of European Contract Law, in particular those relating to the formation of contract and pre-contractual liability.
Hector MacQueen, 'David Daube and T B Smith ' 2014
Abstract: The author narrates the chance discovery of a cache of offprints from Daube amongst Smith's private papers, along with a few letters throwing light on the early development of their relationship when Daube moved to Aberdeen to take up the Chair of Jurisprudence when Smith was Dean of Law.
Hector MacQueen, 'Reinhard Zimmermann and Scots Law ' 2014
Abstract: A tribute to Reinhard Zimmermann's influence on the academic study and substantive development of Scots law, on the occasion of his receiving an honorary doctorate at the University of Lleida, Catalonia.
Hector MacQueen, 'Illegality and Immorality in Contracts: Towards European Principles' 2014
Abstract: An explanation of the formulation of the rules on illegality and immorality in the Principles of European Contract Law and their transmogrification into the Draft Common Frame of Reference (2009).
Hector MacQueen, 'Copyright Law and the Dead Sea Scrolls: A British Perspective' 2014
Abstract: An analysis of the decisions of the Israeli courts in the Dead Sea Scrolls copyright case. The paper argues that the editors of the published edition of the Scrolls would enjoy copyright in their work under UK law, and speculates on the possibility of a copyright in the fragmentary scrolls themselves as unpublished works.
Hector MacQueen, 'Towards Utopia or Irreconcilable Tensions?: Thoughts on Intellectual Property, Human Rights and Competition Law' 2014
Abstract: The paper explores the interactions between intellectual property law and human rights and competition law, arguing that the first must be subject to the latter two, albeit that it also gives expression to aspects of both.
Hector MacQueen, 'Ae Fond Kiss: A Private Matter?' 2014
Abstract: The Ben Beinart Memorial Lecture given at the University of Cape Town on 16 April 2013. The paper discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between the poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges appearing in the court. The paper assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.
Hector MacQueen, 'Invincible or Just a Flesh Wound?: The Holy Grail of Scots Law' 2014
Abstract: An assessment of the current state of Scots law and the Scottish legal system, arguing that as a small legal system which cannot be self-contained it is inevitably in a state of crisis, from which, however, it will not be rescued by Scotland becoming independent. Whatever happens after the referendum concerning Scottish Independence on 18 September 2014, the law is in need of active legislative reform, possibly codification, while the courts must become more positive in the attraction of business rather than, as it sometimes seems, seeking to push it away. Mere defence of the status quo will end in disablement and defeat. The text is a rewritten and lightly updated version of the Willi Steiner Memorial Lecture given at the 44th Annual Conference of the in British and Irish Association of Law Librarians held in Glasgow on 13 June 2013.
Hector MacQueen, Charlotte Waelde, 'Information, Law and Society ' 2014
Abstract: While the information law framework encompasses information which relates to the private and the public, the commercial and the personal, the government and privately (self) regulated, this article focuses on aspects of the information environment relevant to the commercial and quasi-commercial sector, and to that surrounding government. it analyses seven case studies from these areas of activity. When considering whether the legal framework helps or hinders these enterprises in their endeavours, pressing issues emerge. Much hope is placed on the success of digital industries and their capacity to revive the economy. The key question to be addressed therefore is whether we have the optimum legal framework for the information environment within the public, quasi-public and private sectors. By optimum, we mean a legal framework that supports the fullest possible exploitation of digital technology and its possibilities for the benefit of society, and that is itself broadly accepted within society. We conclude that the optimum legal framework may be a problem without a final solution; but this does not mean that it should be ignored and participants left to muddle along as best they can in a difficult world. It behoves the law-maker to keep trying for laws that work and are reasonably well-respected by those most directly affected. Part of that effort, it is suggested, should be given over, where appropriate, to looking at the law in the round or as a whole, and seeking to give it coherence wherever possible. It is a reproach to the law if those subject to it perceive it to be self-contradictory: for example, to mandate access to and re-use of public information, but to require paid-for consent before it can be published. Even worse where a law the principles of which seem entirely appropriate in a liberal democracy, such as data protection, freedom of information and re-use of public sector information, is seen by those who hold the information primarily as a burden on rather than a natural part of their working lives.
Hector MacQueen, 'The Law of Obligations in Scots Law ' 2013
Abstract: A historical study of the structure of the law of obligations in Scots law, with especial reference to the law of contract.
Hector MacQueen, 'Scots and English Law: The Case of Contract' 2013
Abstract: The J. A. C. Thomas Lecture delivered at University College London on 15 March 2001. A discussion of the relationship of Scots law with English law with specific reference to the example of contract law, arguing that it well illustrates the way in which a mixed legal system can develop, both avoiding the destruction of its Civilian characteristics and absorbing Common Law ones on a basis of critical and rational choice between alternatives. The paper concludes by looking at two recent examples of the process in connection with the law of specific implement and also spousal guarantees of husband's business debts.
Hector MacQueen, 'A Friendship in the Law: David Daube and T. B. Smith' 2012
Abstract: A study of the relationship between David Daube and T. B. Smith, with particular focus on their period as colleagues at Aberdeen University in the early 1950s. The piece also considers their position in relation to the recent experience of World War II and Nazi Germany. An appendix publishes the texts of relevant correspondence between the two men.
Hector MacQueen, 'Private Law, National Identity and the Case of Scotland ' 2012
Abstract: This is the text of the 26th James Wood Lecture delivered in the University of Glasgow on 25 October 2012. The lecture explores the relationship between private law and perceptions of national identity, taking Scotland as its main example. It concludes that, despite its apparent remoteness in some respects from the political process, private law can be seen as a key component of national identity alongside public and criminal law.
Hector MacQueen, 'A Post-Positivist Outlook from the Thistle ' 2011
Abstract: A discussion of the Scottish dimension in the writings of Neil MacCormick, in particular with regard to his ideas of the post-sovereign state and the institutional nature of law. The paper suggests that MacCormick’s Scottish nationalist politics were vitally linked to his post-positivist jurisprudence.
Hector MacQueen, 'Good Faith in the Scots Law of Contract: An Undisclosed Principle?' 2011
Abstract: Good faith is not an overtly recognised or apparently very active concept in general contract law in Scotland. This essay argues however that good faith does play a substantial role in contract law, but in a submerged or subterranean way, through particular rules rather than broad general statements. A particularly good example is provided by the authorities on pre-contractual liability, which are discussed in depth and compared with other systems, including the Principles of European Contract Law (PECL).
Hector MacQueen, 'Third Party Rights in Contract: A Case Study in Codifying and Not Codifying' 2011
Abstract: A comparative and historical study of the problems and pitfalls of codification with special reference to China and Scotland and the law of third party rights in contract. The paper argues for the inclusion of a provision on this subject in the Chinese Contract Law and for a statutory modernisation to rescue Scots law from the position of being, as one critic has put it, stuck in the seventeenth century.
Hector MacQueen, 'Law and Economics, David Hume and Intellectual Property ' 2011
Abstract: A comment on David Hume's probable analysis of the idea of intellectual property, suggesting that he would not have recognised it as a form of property and arguing that in the modern reform of the law in this area property rhetoric should be treated with suspicion.
Hector MacQueen, 'Concrete Solutions to Liability: Changing Perspectives in Contract and Delict' 2011
Abstract: Discusses the concept of third party rights in contract as a possible approach to a number of problems in which the law of negligence in delict (tort) has typically been applied in recent times in Scots and English law. Compares these laws with French and German law, and considers European private law solutions.
Hector MacQueen, 'Lawyers' Edinburgh, 1908-2008 ' 2010
Abstract: This paper considers the physical setting of legal practice and education in Edinburgh in 1908 and compares it to the position in 2008. It is a contribution to the centenary celebrations of the Old Edinburgh Club in 2008.
Hector MacQueen, 'Unjustified Enrichment and Family Law ' 2010
Abstract: Explores the extent to which the common law of unjustified enrichment continues to be of use in the break-up of cohabitation relationships even after the passage of the Family Law (Scotland) Act 2006.
Hector MacQueen, 'Rights and Duties of the Seller and the Buyer ' 2009
Abstract: The paper was first given as a lecture at a conference in King Charles University Law School, Prague, assessing the draft Czech Civil Code provisions on sale of goods. This paper considers the provisions on the obligations of seller and buyer under the draft Code, critically analysing them in the light of both the United Kingdom Sale of Goods Act 1979 and the chapter on Sale in the Draft Common Frame of Reference. The paper concludes that the DCFR offers the most attractive way forward for codification in this field.
Hector MacQueen, 'Intellectual Property and the Common Law in Scotland c.1700-c.1850 ' 2009
Abstract: A significant Scottish dimension is apparent in the development of what we would now call intellectual property in the United Kingdom after the Union of 1707. With both patents and copyright under the Statute of Anne, however, that Scottish dimension was always seen in the context of the single market created by the Union; and this was occasionally reinforced by House of Lords cases as well as by the legislature. In Scotland itself there were also issues about how to understand these developing rights within the systematics of Scots law, in particular the doctrine of real rights. While this did not prevent the development of a unified substantive patent law for the United Kingdom long before the abolition of separate Scots and English patents in 1852, there were significant effects in the debate about the existence of rights at common law, beyond grants made under the royal prerogative or by virtue of United Kingdom legislation. The effects were not limited to the literary property arena. The notions of protecting reputation and privacy rather than rights of property also helped from early in the nineteenth century to follow the English development of a concept of a right to protect confidentiality, preventing or sanctioning the taking and use or disclosure of another’s confidential information. Similarly the unauthorised use of badges of another’s trading identity and reputation would provide the platform from which Scots law would move in the second half of the nineteenth century to use the English concept of passing off. But in both common law developments it generally remained clear (as it did not with literary property) that their basis in Scots law was in personal rights, whether by way of delict or contract, and not in any form of property in the confidential information or the badges of identity. It was, however, always a comfort for the Scottish courts that here, as with patents and copyright, the results produced by this different approach were generally in line with those that would be reached in England. The United Kingdom was the inescapable backcloth to the development of intellectual property law.
Hector MacQueen, 'Scotland’s First Women Law Graduates: An Edinburgh Centenary' 2009
Abstract: The paper, first given as the W A Wilson Lecture in the Faculty of Law, University of Edinburgh, in June 2009, celebrates the centenary of the graduations of the first two women to take the degree of LL.B in the University of Edinburgh, and indeed in Scotland. It examines the background to the admission of the two women to the Edinburgh Faculty of Law in 1906 and follows their subsequent careers in the Faculty and after graduation. The nature of their breakthrough is considered in the light of subsequent developments about the admission of women to study and practice law in Scotland, which is also examined from a comparative point of view.
Hector MacQueen, Martin Hogg, 'Donation in Scots Law ' 2009
Abstract: This paper is a Scots law contribution to a collection of essays on the laws of donation in the European jurisdictions, with comparative introduction and conclusions. The research has underpinned the work on donation carried out in the Study Group for a European Civil Code and its Principles of European Law series, and also published in the final edition of the Draft Common Frame of Reference. The paper's original contribution is an analysis of the relationship in Scots law between the contract of donation and the gratuitous unilateral promise, which is binding if certain conditions are met. The paper notes that, possibly reflecting the influence of English law, donation is today seen as primarily about transfers of property; but that otherwise much of the law continues to reflect its Civilian origins.
Hector MacQueen, ''My Tongue is Mine ain': Copyright, the Spoken Word and Privacy' 2005
Abstract: This article shows how under the present legislation in the United Kingdom copyright may exist in speech, in particular in interviews and conversations, provided that the words are recorded and constitute an original work. The argument is illustrated and supported by reference to reported cases from throughout the common law world, as well as to news stories and interviews with individuals ranging from Lord Denning to Michael Jackson. Issues arising from the collection of oral history are also discussed. It is further argued that, in addition to the internal analysis of copyright itself, such protection for the spoken word can be justified by the privacy and personality interests of speakers in the use of what they say.