Personal Chair Of The Law of Obligations

Head of School

LLB, LLM, PhD, Dip LP, NP, FRSA, FSA Scot, Advocate
View my full research profile

  • Tel: +44 (0)131 650 2071
  • Email: Martin.Hogg@ed.ac.uk
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    Meetings by appointment. Please email rose.irvine@ed.ac.uk

Biography

Following two years qualifying as a Solicitor with Dundas & Wilson CS in Edinburgh, Martin Hogg was appointed as a Lecturer at the Faculty of Law at Edinburgh in 1995. In 2004 he was appointed Senior Lecturer, and in 2013 was appointed to a Chair in the Law of Obligations. He is a member of the Faculty of Advocates (the Scottish Bar).

Professor Hogg has previously held office as Associate Dean of the Faculty of Law, as well as Director of Undergraduate Studies, Director of Teaching, Deputy Director of Research, and Convener of the Board of Studies. He took office as Deputy Head of the Law School in 2014, and became Head of School and Dean of Law in 2017.

Ph.D. supervision interests
Professor Hogg welcomes proposals for the supervision of PhD students on any aspect of the law of obligations, especially in the fields of (i) obligations theory, (ii) contract theory, (iii) and the law of promise, whether from a national law or comparative legal perspective. He is also happy to discuss with any prospective doctoral student areas of the law in which doctoral study is needed, and in which therefore doctoral candidates have the potential to make a significant contribution to legal development.

Research Interests

His main areas of research lie in all aspects of the law of obligations, with current particular emphases on (i) comparative obligations theory, (ii) contract and promise, and (iii) fundamental structural language in the law of obligations. He is the Scottish Reporter for the European Tort Law Yearbook, published annually by the European Centre of Tort and Insurance Law (ECTIL), and was elected as a Fellow of ECTIL in 2013 and subsequently a Member in 2015.

His first book "Obligations" was published by Avizandum Publishing in 2003; a second edition followed in 2006. His second major work, "Promises and Contract Law", published by Cambridge University Press in 2011 (reprinted 2014), considered the role of promise in contract law from a comparative perspective. His latest monograph, "Obligations: Law and Language", was published by Cambridge University Press in 2017. It considers the meaning of fundamental structural language employed by the law of obligations in a number of jurisdictions (principally England, Scotland, the USA, Canada, and Australia).

Research specialisations include:

(a) Comparative contract theory, and Promise:

Professor Hogg's research in this field appears in his book, "Promises and Contract Law: Comparative Perspectives". The subject of his research formed the basis for a workshop on Contract Law and Promises hosted by the Edinburgh Centre for Private Law in 2011.

(b) fundamental structural language in the law of obligations

Professor Hogg's research into the fundamental structural language of the law of obligations forms the basis of his most recent book, "Obligations Law and Language" (published in February 2017). He delivered a paper on this subject at a Contract Conference hosted at the Edinburgh Law School in August 2013, and presented again on the same subject at the Obligations VII Conference held at the University of Hong Kong in July 2014. He will be one of the speakers at a Workshop on the subject to be held at the Edinburgh Law School in April 2017.

(c) Themes in the law of delict: causation; damage; misconduct

Professor Hogg is the Scots Law contributor to an ongoing project operating under the auspices of the Austrian Academy of Science to investigate the nature of various aspects of European tort/delict law. Two volumes of the project's research have been published thus far, volume 1 on natural causation, and volume 2 on damage. The research for the third stage of the project (on the theory and rules relating to misconduct) has been completed, and a volume addressing this topic will be published in the near future.

(d) Codification of Private Law

Professor Hogg spoke on this subject at a Conference in Brisbane in December 2015, the proceedings of which have subsequently been published in a volume entitled "Private Law in the 21st Century". He is speaking again on the subject at a roundtable discussion at Maastricht University in May 2017.

Websites

Prof Martin Hogg's homepage at Edinburgh Law School

Biography

Following two years qualifying as a Solicitor with Dundas & Wilson CS in Edinburgh, Martin Hogg was appointed as a Lecturer at the Faculty of Law at Edinburgh in 1995. In 2004 he was appointed Senior Lecturer, and in 2013 was appointed to a Chair in the Law of Obligations. He is a member of the Faculty of Advocates (the Scottish Bar).

Professor Hogg has previously held office as Associate Dean of the Faculty of Law, as well as Director of Undergraduate Studies, Director of Teaching, Deputy Director of Research, and Convener of the Board of Studies. He took office as Deputy Head of the Law School in 2014, and became Head of School and Dean of Law in 2017.

Courses Taught

Contract (Honours) (Course Organiser)

Scottish Legal System (Ordinary)

Unjustified Enrichment (Honours) (Course Organiser)

PhD Supervisees

Stephen Bogle  'The emergence of the will theory in Scots contract law'

Mat Campbell  'Anglo-Franco-Scots perspectives on unjust(ified) enrichment'

Korrasut Khopuangklang  'A Comparative Study of Promise in Thai law, Scots law and the Draft Common Frame of Reference (DCFR)'

Books and Reports

Martin Hogg, Obligations law and language, (Cambridge University Press, 2017)
Abstract: This book examines in depth the fundamental language used by courts, legislators, and academic commentators when describing the nature of obligations law. A comparative perspective is taken, examining the law of England, Scotland, the United States, Canada, and Australia, and an in-depth analysis is provided of the major legal commentaries, statutes, and case law from each jurisdiction. In exploring such fundamental words as obligation, liability, debt, conditional, unilateral, mutual, and gratuitous, the author examines the often confusing and contradictory ways in which basic structural language has been used, and brings clarity to a core area of legal theory and practice.

Martin Hogg, Larry DiMatteo, Comparative Contract Law: British and American Perspectives, (Oxford University Press, 2015)
Abstract: Bringing together leading commercial and contract law scholars from the United Kingdom and United States, Comparative Contract Law: British and American Perspectives offers an insightful and comprehensive assessment of the commonalities and divergences in the contract law of these two jurisdictions. Approaching the subject area from a variety of perspectives - doctrinal analysis, behavioural analysis, law and economics, and theoretical - the book examines familiar areas of contract law as practiced in the UK and US. Topics include contract theory and structure; contract formation and defects of consent; policing contracts and the duty of good faith; contract interpretation; damages; speciality contracts; and legal reform. The volume provides a thorough assessment of the current state of commercial contract law in the UK and US, and addresses the strengths and weaknesses of the national and European approaches to many issues of contract law. In particular it focuses on how commercial contract law should be improved, and whether harmonization of the different contract law regimes is a suitable, and appropriate, solution.

Martin Hogg, Promises and Contract Law: Comparative Perspectives, (Cambridge University Press, 2014)
Abstract: This is a reprint of the 2011 (first) edition of this work. 

Gillian Black, David Cabrelli, Martin Hogg, Laura Macgregor, Contract Law Update, 2010-2012, (Trinity Law, 2012)
Abstract: This is the second edition of 'Contract Law Update', a text aimed at providing summaries and analysis of major contract cases from Scottish and English law. The cases discussed include coverage of: - Pre-contractual liability - Formation of contract - Incorporation of terms - Contractual interpretation - Implication of terms - Unfair terms - Remedies for breach of contract - Contract and unilateral promise - Contract and unjustified enrichment - The contract of agency The work will be of valuable assistance to both practitioners and law students.

Martin Hogg, Promises and Contract Law: Comparative Perspectives, (Cambridge University Press, 2011)
Abstract: Promises and Contract Law is the first modern work to explore the significance of promise to contract law from a comparative legal perspective. Part I explores the component elements of promise, its role in Greek thought and Roman law, the importance of the moral duty to keep promises and the development of promissory ideas in medieval legal scholarship. Part II considers the modern contract law of a number of legal systems from a promissory perspective. The focus is on the law of England, Germany and three mixed legal systems (Scotland, South Africa and Louisiana), though other legal systems are also mentioned. Major topics subjected to a promissory analysis include formation of contract, third party rights, contractual remedies and the renunciation of contractual rights. Part III analyses the future role which promise might play in contract law, especially within a harmonised European contract law.

Martin Hogg, Obligations, (Avizandum, 2006)
Abstract: This book provides a clear guide to the classification of obligations in Scots Law and provides an accessible commentary on the interrelationship and interactions between them. The text applies legal theory to concrete examples and, by the use of worked examples and analysis of relevant case law, particularly in commercial actions, sets the law in its practical context. Topics covered include: concurrent liability; remedies in unjustified enrichment; pre-contractual liability; unilateral promise.

Martin Hogg, Obligations, (Avizandum, 2003)
Abstract: This work looks at the law of obligations primarily by considering the interaction of the various obligations of contract, unilateral promise, delict, and unjustified enrichment with each other. The book is organised for the most part around chapters which consider pairings of obligations, for instance contract and delict, contract and promise, and delict and unjustified enrichment. The book also considers the nature of obligations in general, analysing such features as the bilateral or unilateral nature of obligations, gratuitous and onerous obligations, and objective and subjective bases of liability.

Articles

Martin Hogg, 'The implication of terms-in-fact: Good faith, contextualism, and interpretation', (2017), George Washington Law Review, Vol 85
Abstract: This Article examines the role of good faith in the implication of terms-in-fact in British contract law.

Martin Hogg, 'Delict in Scotland in 2016 ', (2017), European Tort Law Yearbook, Vol 2016, pp 510-537
Abstract: This contribution looks at developments in the law of delict in 2016

Martin Hogg, 'Liability for unknown risks: A common law perspective', (2016), Journal of European Tort Law, Vol 7, pp 1-32
Abstract: In this article, I address the issue of liability for unknown risks from a Common Law perspective. My observations are made principally with English law in mind, but there is also reference to the (mixed) legal system of Scotland as well as to US Common Law (in relation to product liability). In order to set the scene, and in particular to explain the concept of unknown risks, some recitation of basic tort law principles is desirable.

Martin Hogg, 'Promises to Lend, Collateral Warranties, and Red Herrings ', (2015), Edinburgh Law Review, Vol 2015, pp 384-388
Abstract: This article analyses the recent Supreme Court case of Carlyle v Royal Bank of Scotland [2015] UKSC 13, considering in particular what it says about unilateral promise and collateral warranties.

Martin Hogg, 'Restitution following Termination of Contract: A Contractual or Enrichment Remedy?', (2015), Edinburgh Law Review, Vol 19, pp 269-273
Abstract: This article examines whether, when a contract is terminated, the entitlement to restitution of sums paid in advance in respect of which reciprocal performance was not received lies in contract or unjustified enrichment. The discussion is focused on the judgment of Stork Technical Services (Ltd) v Ross [2015] CSOH 10A.

Martin Hogg, 'A solicitor's potential liability for losses caused to a third party through the facilitation of fraudulent conduct by a client ', (2015), Journal of Professional Negligence, Vol 31, pp 203-206
Abstract: This analysis piece examines the recent decision of the Inner House of the Court of Session in the case of Frank Houlgate Investment Co Ltd v Biggart Baillie LLP {2014] CSIH 79.

Martin Hogg, 'The Transmission of Liability for Exposure to Asbestos: Bavaird v Sir Robert McAlpine Ltd in the Inner House', (2014), Edinburgh Law Review, Vol 18, pp 270-74

Martin Hogg, 'Liabilities and Obligations: Two Different Concepts?', (2013), Journal of Professional Negligence, Vol 29, pp 186-194

Martin Hogg, 'Revisiting the Contracts Scholarship of Stewart Macaulay. Eds Jean Braucher, John Kidwell and William C Whitford ', (2013), Edinburgh Law Review, Vol 17, pp 434-36

Martin Hogg, 'Continued Uncertainty in the Analysis of Unjustified Enrichment ', (2013), Scots Law Times, pp (News) 111-16
Abstract: This article analyses the recent Sheriff court decision of Corrie v. Craig and offers some suggestions as to how better pleading and judicial analysis of unjustified enrichment cases might helpfully assist development of the law in the field.

Martin Hogg, 'A Regency Drama: Misrepresentation by Appearance, Reduction and Restitutio in Integrum', (2013), Edinburgh Law Review, Vol 17, pp 256-64
Abstract: This article examines (i) whether the mere appearance of goods can constitute an actionable misrepresentation, and (ii) whether restitutio in integrum following avoidance of a contract should continue to be viewed as a contractual matter, rather than as an aspect of unjustified enrichment. The discussion is set within the context of the recent decision in Lyon & Turnbull v Sabine [2012] CSOH 178.

Martin Hogg, 'Delict in Scotland in 2012 ', (2013), European Tort Law Yearbook, Vol 2012, pp 577-608

Martin Hogg, 'Unjustified Enrichment Claims: When Does the Prescriptive Clock begin to Run?', (2013), Edinburgh Law Review, Vol 17, pp 405-10

Martin Hogg, 'Liability for Improperly Rejected Contract Tenders: Legitimate Expectations, Contract, Promise and Delict', (2012), Edinburgh Law Review, Vol 16, pp 246-53
Abstract: This article examines the potential liability of a party inviting tenders for a contract for improperly rejecting a tender. The approach of the courts in the recent decision of Petition of Sidey Ltd for Judicial Review of a decision of Clackmannanshire Council [2011] CSOH 194 is the focus of the discussion.

Martin Hogg, 'Liability for Losses caused through Reliance on an Inaccurate Route Guide ', (2012), Lloyd's Maritime and Commercial Law Quarterly, pp 350-56
Abstract: This article considers what liability may exist on the publishers of maps/route guides for losses (both pecuniary and non pecuniary) caused by a party relying on the route guide/map. The discussion is framed by reference to the decision of the Court of Session in Munro v Sturrock [2012] CSIH 35

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.

Martin Hogg, 'Three Recent Cases of Promise ', (2012), Edinburgh Law Review, Vol 16, pp 430-38
Abstract: This article discusses three recent decisions of the Court of Session which consider the issue of liability under a (unilateral) promise.

Martin Hogg, 'MacDonald v Nicholson: A Case of Contractual Confusion ', (2011), Edinburgh Law Review, pp 255-259
Abstract: This article considers the recent case of MacDonald v Nicholson, critiquing those portions of the judgment relating to the uncertainty of the contract price, the nature and extent of the breach, and the characterisation of 'restitutio in integrum' suggested by one of the parties.

Martin Hogg, 'Promise and Donation in Louisiana and Comparative Law ', (2011), Tulane European and Civil Law Forum, Vol 26, pp 171-204
Abstract: This article considers the essential nature of promise and donation, and examines to what extent donation has been seen as a promissory transaction in the legal systems of Ancient Rome, Louisiana, Scotland, South Africa, France, Germany, England and the US Common Law jurisdictions. It concludes by considering the treatment of donation in the Draft Common Frame of Reference (DCFR).

Martin Hogg, 'Fundamental Issues for Reform of the Law of Contractual Interpretation ', (2011), Edinburgh Law Review, Vol 15, pp 406-22
Abstract: This article considers the issue of reform of the principles of interpretation of contract, particularly in the light of the recent Law Commission Discussion Paper on Contractual Interpretation (SLC DP No. 147).

Martin Hogg, 'Brian Coote, Contract as Assumption ', (2011), Edinburgh Law Review, Vol 15, pp 315-18
Abstract: A review of Professor Brian Coote's recent work 'Contract as Assumption' (Hart Publishing, 2010), which argues that there is much to commend in the thesis that in contracting parties mutually assume obligations to each other, while also arguing that Coote's theory is somewhat hampered by a continued adherence to the doctrine of consideration and the need to accommodate problems which the doctrine causes.

Martin Hogg, 'MacDonald v Nicholson: A Case of Contractual Confusion', (2011), Edinburgh Law Review, Vol 15, pp 255-59
Abstract: This article considers the recent case of MacDonald v Nicholson, critiquing those portions of the judgment relating to the uncertainty of the contract price, the nature and extent of the breach, and the characterisation of 'restitutio in integrum' suggested by one of the parties.

Martin Hogg, 'Geoffrey Samuel, Law of Obligations ', (2011), Edinburgh Law Review, Vol 15, pp 149-151

Martin Hogg, 'Damages by the Portfolio Method ', (2011), Lloyd's Maritime and Commercial Law Quarterly, pp 166-71
Abstract: This article analyses the 'portfolio method' for assessing contractual damages resulting from damage to the goodwill of a business brand, with particular reference to the judgment in Tullis Russell Papermakers v. Inveresk Ltd [2010] CSOH 148.

Martin Hogg, 'Delict in Scotland in 2011 ', (2011), European Tort Law Yearbook, pp 523-43
Abstract: This contribution analyses developments in the law of delict in Scotland in 2011.

Martin Hogg, 'Damages for Pecuniary Loss in Cases of Wrongful Birth ', (2010), Journal of European Tort Law, Vol 1, pp 156-70
Abstract: In this article, a comparative examination is made of the award of damages for pecuniary losses in cases of wrongful birth, such category including claims in respect of both healthy as well as disabled children. It is argued that such claims do not necessarily infringe the sanctity of human life, so long as it is the economic harm occasioned to parents by the birth of the child which is conceived of as the relevant harm rather than the birth of the child. Further jurisdictional harmonisation in this field, which is already more evident in respect of disabled children than healthy children, will depend upon a common understanding of the nature of the harm in question, as well as a willingness to find solutions to questions of the attribution of responsibility for harm discussed in the article.

Martin Hogg, 'Promise: The Neglected Obligation In European Private Law', (2010), International and Comparative Law Quarterly, Vol 59, pp 461-79
Abstract: This article argues that more explicit recognition ought to be accorded to unilateral promises in European private law. While such promises are given effect to, this is often by virtue of the fiction that they create contractual liability, a fiction which masks the true nature of liability as unilaterally undertaken. The argument is advanced through a comparison of the differing approaches of German, English and Scots law to unilateral promises. It is concluded that a wider and more explicit enforcement of unilateral promises would benefit the future development of European private law.

Martin Hogg, 'Eric Descheemaeker, The Division of Wrongs: A Historical Comparative Study ', (2010), Edinburgh Law Review, Vol 14, pp 339-41
Abstract: A review of the new monograph 'The Division of Wrongs' by Eric Descheemaeker.

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 [2010] CSIH 13 on the subject of liability for wasted pre-contractual expenditure.

Martin Hogg, 'Thomas Kadner Graziano, Comparative Contract Law: Cases, Materials and Exercises ', (2010), Edinburgh Law Review, Vol 14, pp 527-29

Martin Hogg, 'Perspectives on Contract Theory from a Mixed Legal System ', (2009), Oxford Journal of Legal Studies, Vol 29, pp 643-73
Abstract: In this article it is argued that Scottish contract theory retains distinctive features which are not shared with the Common Law. The origins of this theory lie in the ‘mixed' nature of its contract law, a mixture established principally through the writings of Stair. That mix is not merely the traditional mix of Roman and Common Law typical of mixed legal systems, but a mix also of natural law ideas with a respect for the rational and free choices of the parties. Respect for free will is seen not just in certain contractual rules such as the absence of a requirement of consideration, but in the existence of a separate obligation of unilateral promise. It is argued that the nature of Scottish contract theory lends itself more easily to defence of the will theory, and that there has been an absence of enthusiasm for the adoption of competing theories of contract in Scotland. It is suggested by way of conclusion that some of the benefits provided by the Scottish structure could be of use to future development of the Common Law, albeit that the Common Law has typically shown itself averse to legal borrowings from its nearest neighbour.

Martin Hogg, 'The Continuing Confused Saga of Contract and Error ', (2009), Edinburgh Law Review, Vol 13, pp 286-90
Abstract: This article examines the law of error as it relates to contract formation in the light of the decision of the Court of Session in Parvaiz v Thresher Wines [2008] CSOH 160. While the decision seems correct, the law's analysis and classification of error as it relates to contract formation remains confused, with competing typologies continuing to cause problems for practitioners, judges and students of the law.

Martin Hogg, 'European Private Law Beyond the Common Frame of Reference: Essays in Honour of Reinhard Zimmermann. Ed by Antoni Vaquer ', (2009), Edinburgh Law Review, Vol 13, pp 351-53

Martin Hogg, 'Intention to Contract and Wasted Pre-contractual Expenditure ', (2009), Edinburgh Law Review, Vol 13, pp 130-34
Abstract: This article considers whether liability may arise between parties negotiating a contract for wasted expenditure incurred by one in the expectation of the formation of the contract. As the recent case of Aisling Developments Ltd v Persimmon Homes Ltd [2008] CSOH 140 shows, this is unlikely to be so unless unjustified enrichment provides a remedy. The facts of that case, which involved one party stringing the other along in bad faith, suggests perhaps that some further development of the existing liability for wasted expenditure (established in Walker v Milne) would be desirable.

Martin Hogg, 'Contract Formation in the Electronic Age ', (2009), Edinburgh Law Review, Vol 13, pp 121-25
Abstract: This article considers the continuing relevance of the traditional rules regarding when contractual communications take effect. In particular, it considers whether the postal acceptance rule applies to the transmission of a notice exercising an option under a contract, concluding that (unless the option is in offer form, or the contract otherwise so provides) it does not.

Martin Hogg, 'Causation and Apportionment of Damages in Cases of Divisible Injury ', (2008), Edinburgh Law Review, Vol 12, pp 99-105
Abstract: This article argues that in cases where a defender has caused a portion of a divisible injury or disease (such as asbestosis), such defender should be liable only for an equivalent portion of the damages due to the pursuer. Judicial insistence that such a defender be liable in solidum for the whole of the loss is unprincipled and unjust.

Martin Hogg, 'Asbestos Related Conditions and the Idea of Damage in the Law of Delict ', (2008), Scots Law Times, pp (News) 207-12
Abstract: This article examines the Damages(Asbestos-related Conditions)(Scotland) Bill, the intention of which is to overturn the decision of the House of Lords in Johnston v NEI International [2008] 1 AC 281. It is suggested that the Bill is flawed. It is wholly inconsistent with the common law concept of damage and runs counter to the position taken in jurisdictions with a greater experience of asbestos related conditions.

Martin Hogg, 'Re-establishing Orthodoxy in the Realm of Causation ', (2007), Edinburgh Law Review, Vol 11, pp 8-30
Abstract: This article reviews where the law relating to causation-in-fact in delict/tort currently stands in Scotland and England in the light of the recent House of Lords cases of Gregg v Scott and Barker v Corus. It argues that the majority in Barker v Corus were correct to recast the Fairchild/McGhee principle as one of loss of a chance, and that doing so reasserted the causally orthodox principles which had been overridden by the creation of the material increase in risk test in McGhee. It also argues that the House of Lords were correct in rejecting the claimant's appeal in Gregg, as to permit claims for lost of future expectation of life unconnected to any demonstrable existing physical harm would be to permit wholly speculative damages claims. The article concludes by considering the decision of the English Court of Appeal in Grieves v F T Everard, arguing that the Court was correct to exclude asymptomatic pleural plaques as actionable harm, and encouraging the House of Lords to uphold this view when it comes to consider the appeal against the Court of Appeal's decision.

Martin Hogg, 'Damages for Breach of a Keep-Open Clause: Douglas Shelf Seven Ltd v Co-operative Wholesale Society Ltd', (2007), Edinburgh Law Review, Vol 11, pp 416-21
Abstract: This article analyses the recent decision of the Court of Session in Douglas Shelf Seven v Co-operative Wholesale Society. The case considered whether the breach of a 'keep-open' clause by a tenant can be considered a causal factor of losses suffered by the landlord if a long period of time has passed since the breach began and other factors have arguably affected the landlord's position. The case also considers the point at which it is appropriate to assess damages in cases of ongoing breach of contract. It is suggested that the Court adopted the correct approach in relation to both of these questions.

Martin Hogg, 'Graham Virgo, Principles of the Law of Restitution ', (2007), Edinburgh Law Review, Vol 11, pp 461-62
Abstract: Book Review of the second edition of Graham Virgo's 'Principles of the Law of Restitution'

Martin Hogg, 'Unjustified Enrichment in Scots Law Twenty Years On: Where Now?', (2006), Restitution Law Review, Vol 14, pp 1-20
Abstract: This article argues that the past twenty years of development in the Scots Law of unjustified enrichment have been constructive ones, but the revolution in thought, both academic and judicial, remains incomplete. The available remedies have been clearly united under a principle of unjustified enrichment, but doubts remain as to whether a single action should be developed. It is argued, on the question of taxonomy, that development of a neo-civilian approach would be both logical and in accordance with the Roman roots of Scots Law. Temptations to codify should be resisted for the present, while the common law continues to demonstrate its capacity for inventive reform.

Martin Hogg, 'Duties of Care, Causation, and the Implications of Chester v Afshar ', (2005), Edinburgh Law Review, Vol 9, pp 156-67
Abstract: This article considers the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134 on the question of the liability of a doctor in relation to failure to disclose a risk inherent in medical procedure. The article argues that the decision of the House of Lords in Chester can properly be explained by reference to the scope of the duty of care rather than by reference to causation.

Martin Hogg, 'The Role of Causation in Delict ', (2005), Juridical Review, Vol 2005, pp 89-151
Abstract: This article reviews the role of causation in delict, principally from a Scots Law viewpoint, but also through consideration of Common Law authorities. The appropriate test for determining causation-in-fact is examined, as well as matters affecting the attribution of responsibility for harm (what has traditionally been known as 'legal causation'). Specific consideration is given to cases involving causal indeterminacy.

Martin Hogg, 'Scots Law and Informed Consent in Consumer Transactions ', (2004), Tijdschrift voor Consumentenrecht, pp 130-34

Martin Hogg, 'The Consumer's Right to Rescind under the Sale of Goods Act: A Tale of Two Remedies', (2003), Scots Law Times, pp (News) 277
Abstract: Following the implementation of reforms in European Consumer Protection, the Sale of Goods Act 1979 now provides for two routes for a consumer to rescind a sale of goods contract for material breach. This article argues that this dual approach is confusing, and that a single remedial route should be provided for.

Martin Hogg, 'Paul v Olgilvy: A Lost Opportunity for Lost Chance Recovery', (2003), Edinburgh Law Review, Vol 7, pp 86-92
Abstract: This article examines the decision in Paul v Ogilvy, the first Scottish case to examine recent English decisions on lost chances, arguing that the Scottish court missed an opportunity to apply this line of cases. It also argues that the calculation of damages in Paul v Ogilvy was flawed.

Martin Hogg, Georgios Arnokouros, Andrea Pinna, Rui Cascao, Stephen Watterson, 'ECJ C-240/98 — C-244/98, 27 June 2000, (Océano Grupo Editorial and Salvat Editores) Scottish Case Note ', (2002), European Review of Private Law, Vol 10, pp 157-73
Abstract: The Océano Grupo Editorial is the first case referred to the European Court of Justice for a preliminary ruling regarding the interpretation of the Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ 1993 L 95, p.29). The request for a preliminary ruling was made by a Court of First Instance in Barcelona.The proceedings before the Spanish Court concerned the payment of sums due under the sale contracts concluded between the companies (plaintiffs) and a number of buyers (defendants). Each of the defendants, who all were Spanish residents, had entered into a contract for the purchase by installments of an encyclopaedia for personal use. The contracts contained a term conferring jurisdiction on the courts in Barcelona, a city where the plaintiffs had their principal place of business but in which none of the defendants was domiciled. When the defendants did not pay the sums due on the agreed days, the sellers brought actions before the courts in Barcelona in accordance with the jurisdiction clauses. The judge of the Court of First Instance in Barcelona emphasized that the Tribunal Supremo has held jurisdiction clauses of the kind at issue to be unfair. However, the Court was less confident on the question — and therefore it addressed it to the ECJ — whether the scope of the Directive on unfair terms is such that the national court may determine of its own motion whether a term of a contract is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the courts.First, the ECJ regarded the jurisdiction clause of the kind at issue to be unfair within the meaning of article 3 of the Directive. Secondly, as to the aim of article 6 of the Directive, which requires Member States to lay down that unfair terms are not binding on the consumer, the ECJ argued that such aim would not be achieved if the consumer were himself obliged to raise the unfair nature of such terms. Thus, the ECJ held that the protection provided for consumers by the Directive on unfair terms entails the national court being able to determine of its own motion whether a term of a contract before it is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts. In particular, the requirement for an interpretation in conformity with the Directive required the national court to favour the interpretation that would allow it to decline of its own motion the jurisdiction conferred on it by virtue of an unfair term.The case has also been reported in the Common Market Law Review, 38:719–737, 2001, with a note by Jules Stuyck.

Martin Hogg, 'Lowlands to Low Country: Perspectives on the Scottish and Dutch Law of Unjustified Enrichment', (2001), Ius Commune Lectures on European Private Law, Vol 5, pp online
Abstract: This article, published in the Ius Commune series of comparative law articles, compares the Scots and Dutch law of unjustified enrichment, noting the many similarities of approach in the two systems.

Martin Hogg, 'Scottish Law and the European Consumer Sales Directive ', (2001), European Review of Private Law, Vol 9, pp 337-50
Abstract: The European Consumer Sales Directive will not greatly alter existing Scots law as it relates to implied terms concerning the nature and quality of goods. It will, however, introduce into Scots law a new remedy entitling the consumer to repair or replacement of defective goods. In some respects existing Scots law gives greater protection to consumers, for instance in the availability of the right to terminate the contract for breach as a primary remedy, and it is to be hoped that such protection remains entrenched even although the Directive envisages termination for breach as a secondary remedy.

Martin Hogg, J. Backx, 'Restitution in Bankruptcy: A Scots Law View of Ontvanger v Hamm q.q.', (2000), European Review of Private Law, Vol 8, pp 509-21

Martin Hogg, 'To Irritate or to Rescind: Two Paths for the Landlord?', (1999), Scots Law Times, pp 1-6
Abstract: This article considers the two routes open to a landlord faced with a material breach of lease by the tenant, rescission for material breach or irritancy of the lease. (The discussion in the article was referred to approvingly in the judgment of Lord Pentland in Crieff Highland Gathering Ltd v. Perth and Kinross Council [2011] CSOH 78.)

Martin Hogg, 'Privacy and Loyalty. Ed by Peter Birks (Oxford: Clarendon University Press, 1997) ', (1999), Edinburgh Law Review, Vol 3, pp 411-12

Martin Hogg, 'A Few Tricky Problems Surrounding Unilateral Promise ', (1998), Scots Law Times, pp 25-29
Abstract: This article considers some fundamental aspects of the obligation of unilateral promise, in particular whether promises are always by nature gratuitous.

Martin Hogg, 'Concurrent Liability in the Scots Law of Contract and Delict ', (1998), Juridical Review, pp 1-20
Abstract: This article argues that it is entirely consistent with a proper understanding of the hierarchy of obligations in Scots law that a pursuer should, in general, be able to exercise a choice of whether to sue in contract or delict, where a concurrence of actions applies.

Martin Hogg, 'Contract, Agency and Recompense: Four Recent Enrichment Cases', (1998), Edinburgh Law Review, Vol 2, pp 357-65
Abstract: This article reviews four recent cases concerning the remedy of recompense in the law of unjustified enrichment

Martin Hogg, 'Data Protection: The Government's Proposals', (1997), Scots Law Times, pp 277-79

Martin Hogg, 'Judicial Attitudes to Unjustified Enrichment: The Conservative Nature of Morgan Guaranty v. Lothian Regional Council', (1997), Edinburgh Law Review, Vol 1, pp 381-85
Abstract: This article argues that, while the decision of the Court of Session in Morgan Guaranty Trust Co of New York v Lothian Regional Council 1995 SC 151 has taken the first tentative steps towards reforming the law of unjustified enirchment in Scotland, it represents a very conservative and cautious start.

Martin Hogg, 'Lost Chances in Contract and Delict ', (1997), Scots Law Times, pp 71-76
Abstract: This article looks at whether Scots law recognises a lost chance as a recoverable head of damage in contract or delict. It argues that Scots law does recognise such recovery, and that the law should develop along the lines of recent English authorities in this area.

Martin Hogg, 'Privacy and European Data Protection Rights ', (1996), Scots Law Times, pp 127-34

Martin Hogg, 'Privacy: A Valuable and Protected Interest in Scots Law', (1992), Scots Law Times, pp (News) 349
Abstract: This article argues that while the law currently protects the right to privacy tangentially in a number of ways, Scots Law should develop a specific delict of invasion of privacy.

Chapters

Martin Hogg, 'General principles of the Chinese Contract Law Scottish perspective' in Larry DiMatteo, Lei Chen (ed.) Chinese Contract Law (Cambridge University Press 2017)

Martin Hogg, 'Codification of private law Scots law at the crossroads of common and civil law' in Kit Barker, Karen Fairweather, Ross Grantham (ed.) Private Law in the 21st Century (Bloomsbury Academic 2017)
Abstract: This book chapter, from an edited collection on various aspects of the development of private law in the 21st century, considers the arguments for and against the codification of Scottish private law. It makes the case for such a codification, while recognising that the widespread support necessary for such a development remains to be generated.

Martin Hogg, 'Saying What We Mean Fundamental Structural Language in Contract Law' in Martin Hogg, Larry DiMatteo (ed.) Comparative Contract Law: British and American Perspectives (Oxford University Press 2015) 13-29
Abstract: This book chapter examines the usage of certain fundamental structural words used within the law of contract, examining the variable meanings and usages of the terms within a number of legal jurisdictions.

Martin Hogg, 'Disgorgement of Profits in Scots Law ' in Ewoud Hondius, Andre Janssen (ed.) Disgorgement of Profits (Springer 2015) 325-44
Abstract: This book chapter looks at gain-stripping remedies across the Scottish law of obligations, setting the Scots law within a comparative and historical context.

Martin Hogg, 'Competing Theories of Contract An Emerging Consensus?' in Larry A. DiMatteo, Qi Zhou, Severine Saintier, Keith Rowley (ed.) Commercial Contract Law (Cambridge University Press 2013) 14-40
Abstract: This chapter explores competing theories of contract law, and examines whether there are any connections between them. A new theory (styled the 'co-operative will theory') is offered as a means of explaining a modern contract law which still finds its origins in the consent of parties but is able to accommodate increasing external regulation of content.

Martin Hogg, 'Developing causal doctrine ' in Richard Goldberg (ed.) Perspectives on Causation (Hart Publishing 2011) 41-56
Abstract: This chapter considers the current approach of the courts to the determination of the causal element in delict/tort claims, and makes some suggestions as to why the courts have been reluctant to adopt the NESS test of causation popularised in recent academic analysis. Cases of causal indeterminacy are also examined, a case study being made of cases of misrepresentation.

Martin Hogg, 'Scottish Case Notes ' in Benedict Winiger, Helmut Koziol, Bernard A. Koch, Reinhard Zimmermann, Institute for European Tort of the Austrian Academy of Sciences (ed.) Digest of European Tort Law (De Gruyter & Co 2011)
Abstract: Scottish cases relevant to the concept of 'damage' in delict are analysed.

Martin Hogg, 'Delict in Scotland in 2010 ' in Helmut Koziol, Barbara C. Steininger (ed.) European Tort Law Yearbook 2010 (Walter de Gruyter GmbH 2011) 523-43
Abstract: This contribution analyses developments in the law of delict in Scotland in 2010.

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.

Martin Hogg, 'Causation as an Element in Delict/Tort in Scots and Louisiana Law ' in Vernon Valentine Palmer, Elspeth Christie Reid (ed.) Mixed Jurisdictions Compared (Edinburgh University Press 2009) 355-86
Abstract: This chapter analyses the current state of causal doctrine in the two Mixed Legal system of Scotland and Louisiana, and makes suggestions as to how the law might be developed in each. The chapter was favourably reviewed by Prof Shael Herman, in Vol. 85, issue 4, of the Tulane Law Review (see S Herman, 'Odd Men In: The Fascinating Legal Kinship of Scotland and Louisiana').

Martin Hogg, 'Scottish National Notes ' in Hanna Sivesand, Ewoud Hondius, Viola Heutger (ed.) Principles of European Law (Sellier 2008)
Abstract: The Principles of European Sales Law is the latest contribution to European principles, or model law, from the Study Group on a European Civil Code. The Principles were produced by a drafting committee, and have been published together with national jurisdictional notes, the Scottish notes having been written by Hector MacQueen and Martin Hogg.

Martin Hogg, 'Scottish Case Notes ' in Benedict Winiger, Helmut Kolziol, Bernard A. Koch, Reinhard Zimmermann, Research Unit for European Tort Law of the Austrian Academy of Sciences (ed.) Digest of European Tort Law (Springer 2007)
Abstract: This volume of the Digest of European Tort Law is the first product of an ambitious research project: a collection of court decisions from almost all European jurisdictions on the most fundamental aspects of tort law. The cases are accumulated, structured, analysed and commented both from a national as well as a comparative perspective. Historical aspects are also considered, as are future trends, as outlined by current projects on the harmonisation of European tort laws. This comparative study is intended therefore not only to offer guidance for researching cross-border cases, but also to allow a discussion of such harmonisation projects on the basis of real-life case settings. This first volume covers one key aspect of tortious liability – natural causation. The conditio sine qua non rule is examined and tested throughout all jurisdictions, in particular with an eye on whether and to what extent courts are willing to deviate from the strict concept of this formula.

Martin Hogg, 'Unjustified Enrichment in Scots Law ' in Jack Beatson, Eltjo Schrage (ed.) Cases, Materials and Texts on Unjustified Enrichment (Hart Publishing 2003) 21-26
Abstract: Scottish contribution to a comparative casebook on Unjustified Enrichment.

Martin Hogg, 'Secrecy and Signatures Turning the Legal Spotlight on Encryption and Electronic Signatures' in Lilian Edwards, Charlotte Waelde (ed.) Law and the Internet (Hart Publishing 2000) 37-54

Martin Hogg, 'Leases in Scotland Four Historical Portraits' in Kenneth Reid, Reinhard Zimmermann (ed.) A History of Private Law in Scotland (Oxford University Press 2000) 363-98
Abstract: This book chapter examines the history of leases in Scotland from the standpoint of four leases taken from various points in Scottish history from the fifteenth century onwards.

Martin Hogg, 'Law Reform of Electronic Signatures and Encryption A Scottish Perspective' in F. W. Grosheide, K. Boele Woelki (ed.) European Private Law 1999/2000 (Koninklijke Vermande 2000) 25-44

Martin Hogg, 'Muddling Through? Legal Responses to E-Commerce from the perspective of a Mixed Legal System' in F. W. Groshiede, Katharinia Boele-Woelki (ed.) Europees Privaatrecht (Koninkliije Vermande, Lelystad 1998) 195-223

Martin Hogg, 'Customs and Excise ' in The Laws of Scotland (Butterworths and the Law Society of Scotland 1996)
Abstract: This title of the Stair Memorial Encyclopaedia of the Laws of Scotland presents an outline of customs and excise law as it operates in Scotland.

Martin Hogg, 'The Very Private Life of the Right to Privacy ' in Hector MacQueen (ed.) Deregulation and Privatisation (Edinburgh University Press 1994) 1-28
Abstract: This contribution to the Hume Papers on Public Policy explores the extent to which Scots law protects individual privacy, and argues that the current protection it affords ought to be developed into a general delictual claim for invasion of privacy.

Working Papers

Martin Hogg, 'Fundamental Issues for Reform of the Law of Contractual Interpretation ' 2011
Abstract: This article considers the issue of reform of the principles of interpretation of contract, particularly in the light of the recent Scottish Law Commission Discussion Paper on Contractual Interpretation (SLC DP No. 147).

Martin Hogg, 'Contract Theory: Is There a Path through the Theoretical Jungle?' 2011
Abstract: This piece, which examines ideas from both US and European contract law, considers whether there is any emerging consensus in contract theory. It suggests that what is styled a 'co-operative will theory' would provide a sound basis for developing the law, and that such a theory reflects the emerging consensus in European legal harmonisation projects.

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.