Hector MacQueen has been a member of the Edinburgh Law School staff since 1979, having also taken his LL.B (1978) and Ph.D (1985) 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 is on leave of absence January 2010-September 2014, having taken up an appointment as a Scottish Law Commissioner. In consequence he is not taking on any new PhD students at present.
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. Professor MacQueen is President of the Society of Legal Scholars 2012-2013, and the Society's Annual Conference will be held in Edinburgh 3-6 September 2013. He was Vice-President (Humanities) of the RSE 2008-2011 and is currently a member of the Law subject standing committee of the British Academy. He was a member of the AHRC Peer Review College from 2008 to 2012.
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), and 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 also encompasses the Literary Directorship of the Stair Society (1999-date) and he is a Vice-President of the Scottish Text Society (Council member since 1993). He was also Chair of the Scottish Medievalists Conference (2007-2011) and of the Scottish Records Advisory Council 2001-2008. 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 and 12th edns, 2001, 2005 and 2010). Professor MacQueen also recast the relevant chapters of the general textbook Gloag & Henderson’s Law of Scotland (11th edn 2001; 12th edn, 2007; 13th edn, 2012).
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.
Copyright and design law are Professor MacQueen’s principal areas of interest in intellectual property, although he also carries 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 produced the innovative student text Contemporary Intellectual Property: Law and Policy (1st edn 2007, 2nd edn 2010). Research on copyright has focused 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).
Professor MacQueen has successfully supervised numerous doctoral students in all his areas of interest (especially copyright): 20 have gained their PhD, and 1 is currently in progress. His present leave of absence means that he is not currently taking on any new supervisions. Professor MacQueen has examined 21 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 4th edition. He is examiner in Contract, Quasi-Contract and Delict in the Faculty of Advocates (1997-date). He has been an invited external assessor of teaching and research quality at the Universities of Cork (2006) and Luxembourg (2008), and is a member of the Law Society of Scotland Law Schools Accreditation Panel (2001-date).
A single-volume reprint of the original two-volume work by the first Professor of Law at the University of Glasgow, with an introduction by Hector MacQueen discussing the significance of Forbes' work, especially in relation to his unpublished and much more massive "Great Body of the Law of Scotland", and also assessing its relationship to the Articles on public and private law in the Union Agreement of 1707.
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.
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.
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.
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.
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.
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.
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.
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.
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).
A study of the relationship between two academic lawyers of the twentieth century with particular focus on their period as colleagues at Aberdeen University in the early 1950s. Also considers their position in relation to the then-recent experience of World War II and Nazi Germany. The texts of relevant correspondence between the two men is included as appendices.
Hector MacQueen, Charles Garland, Afson Barekat, Emma Boffey 'The proposed Common European Sales Law' (2012) Scots Law Times pp 65-70
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.
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.
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.
Hector MacQueen 'The Google Book Settlement' (2009) IIC 40(3) pp.247-249
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.
http://www.ejcl.org/103/art103-10.pdf
Hector MacQueen 'Reform of archival legislation: a Scots perspective' (2006) Scottish Archives (2005) vol 11 pp 1-12
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 'Unjustified enrichment in mixed legal systems' (2005) Restitution Law Review vol 13 pp 21-33
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 'Legal nationalism: Lord Cooper, legal history and comparative law' (2005) Edinburgh Law Review vol 9(3), 395-406
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.
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 'Reform of archival legislation: a Scots perspective' (2005) Irish Archives: Journal of the Irish Society for Archives vol 10, pp 4-13
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 'Protecting privacy: Campbell v MGN Newspapers' (2004) Edinburgh Law Review vol 8(3) pp 420-423
A critical comparison of the application of human rights in private law in South Africa and the UK
Hector MacQueen, Charlotte Waelde 'From entertainment to education: the scope of copyright' (2004) Intellectual Property Quarterly Issue 3, pp. 259-283
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.
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 'Tears of a legal historian: Scottish feudalism and the ius commune' (2003) Juridical Review (no vol), 1-28
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 'International exhaustion of trade marks rights: a Scottish contribution to the debate' (2000) Intellectual Property Quarterly vol 4(4) pp.357-366
Hector MacQueen 'A Scottish Perspective on Kleinwort Benson v Lincoln City Council' (2000) European Review of Private Law Vol. 8(2), pp.352-357
Hector MacQueen 'Scots Law and the Road to the New Ius Commune' (1999) The Law Librarian Vol. 30(1), pp. 19-25
Hector MacQueen 'Intellectual Property in a Peripheral Jurisdiction' (1999) Computers and Law Vol. 10(4), pp. 30-35
Hector MacQueen, Martin Hogg, Parker Hood 'Muddling Through? Legal Responses to E-Commerce From the Perspective of a Mixed System' (1998) Molengrafica 195-224
The article dealt with "the problems posed by software transactions, licences of information and electronic contracting" under Scots law, as well as the potential liability and remedies .
Hector MacQueen 'Judicial Reform of Private Law' (1998) Scottish Law & Practice Quarterly Vol. 3(2) pp.134-158
Hector MacQueen 'Copyright in Cyberspace: Shetland Times v Wills' (1998) Journal of Business Law pp. 297-299
Hector MacQueen 'Third Party Rights in Contract: English Reform and Scottish Concerns' (1997) Edinburgh Law Review Vol. 1,pp.488-493
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.200-226
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 'Assignation and Breach of Contract' (1997) Scottish Law & Practice Quarterly Vol. 2 pp.114-122
Hector MacQueen 'Mixture or Muddle? Teaching and Research in Scottish Legal History' (1997) Zeitschrift für Europäisches Privatrecht Vol. 5, pp.359-384
Hector MacQueen 'Remoteness and Breach of Contract' (1996) Juridical Review pp. 295-303
Hector MacQueen 'Regiam Majestatem, Scots law and national identity' (1995) Scottish Historical Review 74: 1-25
Hector MacQueen 'The Wee McGlen case: representations of Scottishness, passing off and unfair trading' (1983) European Intellectual Property Review 18-20
Hector MacQueen 'Dissasine and mortancestor in Scots law' (1983) Journal of Legal History iv 21-49
Hector MacQueen, W.J. Windram 'The Sources and Literature of Scots Law: a select critical bibliography' (1983) Journal of Legal History iv 1-20
Hector MacQueen 'The Monopolies Commission and the Scottish factor' (1982) Journal of Business Law 316-319
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 'Europeanisation of Contract Law and the Proposed Common European Sales Law' in Larry DiMatteo (eds) Commercial Contract Law: Transatlantic Perspectives (Cambridge University Press, 2013) pp 529-558
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 'Third Party Rights: A Case Study on Codifying and Not Codifying' in Lei Chen and C H van Rhee (eds) Towards a Chinese Civil Code (Martinus Nijhoff, 2012) pp.309-331
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. The chapter argues 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 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 A A M Duncan (ed) (eds) Scottish Formularies (Stair Society, 2011) pp. 361-374
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 (eds) Estudos em Homenagem ao Professor Doutor Carlos Ferreira de Almeida (Almedina, Portugal, 2011) vol 2, pp 447-458
Assesses the extent to which the DCFR recognises gain-based claims on breach of contract.
Hector MacQueen 'Law and economics, David Hume and intellectual property' in Nick Kuenssberg (eds) Argument amongst Friends: twenty five years of sceptical enquiry (The David Hume Institute, 2011) pp.9-14
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 'Illegal and immoral contracts: towards European principles' in Arthur Hartkamp,Martijn Hesselink, Ewoud Hondius, Chantal Mak, Edgar du Perron (eds) Towards a European Civil Code 4th revised and expanded edition (Kluwer Law International, 2011) pp 555-570
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 'David Daube and T B Smith' in Ernest Metzger (eds) David Daube: a centenary celebration (Traditio Iuris Romani, Glasgow, 2010) pp. 11-36
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 and John J Collins (eds) The Oxford Handbook of the Dead Sea Scrolls (Oxford University Press, 2010) pp 723-748
Analysis of the claims to copyright in the editorial reconstruction of ancient texts, arguing that such work is rightly categorised as authorship for the purposes of copyright law, and that this conclusion does not lead to inhibitions upon the ordinary processes of scholarly research.
Hector MacQueen 'The king's council and church courts in later medieval Scotland' in Harry Dondorp, Jan Hallebeek, Tammo Wallinga, Laurens Winkel (eds) Ius Romanum - Ius Commune - Ius Hodiernum: Studies in Honour of Eltjo Schrage on the occasion of his 65th birthday (Scientia Verlag, Amsterdam & Aalen, 2010) pp.277-287
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 'Lawyers' Edinburgh 1908-2008' in (eds) Book of the Old Edinburgh Club (new series) vol 8 (Old Edinburgh Club, 2010) pp.27-53
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.
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 'Contract and consensus: two Scottish cases' in Faculty of Law National and Kapodistrian University of Athens (eds) Essays in Honour of Konstantinos D Kerameus (Ant N Sakkoulas Athens and Bruylant Brussels, 2009) 827-836
Discusses the cases of W S Karoulias SA v Drambuie Liqueur Co Ltd (No 2) 2005 SLT 813 and Moyarget Developments v Mathis [2005] CSOH 136 and how they would have been decided under the Principles of European Contract Law.
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.
Hector MacQueen 'Scotland's first women law graduates: an Edinburgh centenary' in Hector MacQueen Miscellany VI (Stair Society, 2009) 221-265
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 'Prava a poviinosti prodavajiciho a kupujiciho' in J Svestka, J Dvorak, L Tichy (eds) Sbornik stati z diskusnich for o rekodifikaci obscanskeho prava (Eva Rozkotova: IFEC, Prague, 2009) 126-144
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 Charlotte Waelde, Lilian Edwards (eds) Law and the Internet (Hart, 2009) 183-225
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 'Towards Utopia or Irreconcilable Tensions? Thoughts on Intellectual Property, Human Rights and Competition Law' in Manoj Kumar Pattanaik (eds) Human Rights and Intellectual Property (Icfai University Press, 2008) 22-39
Analysis of Zimmermann's contributions to Scots law, as inspiration, editor, author and source
Hector MacQueen, W. David H. Sellar 'Scots law: Ius quaesitum tertio, promise and irrevocability' in Eltjo Schrage (eds) Ius Quaesitum Tertio (Duncker & Humblot, Berlin, 2008) 357-383
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, Sir Basil Markesinis, Hans Micklitz and Nello Pasquini (eds) Liber Amicorum Guido Alpa: Private Law beyond the National Systems (British Institute of International and Comparative Law, 2007) pp. 614-644
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 (eds) Towards Europeanization of Private Law: Essays in Honour of Professor Jerzy Rajski (C H Beck, 2007) pp. 521-538
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.
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.
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 'Peter Birks and Scots Enrichment Law' in Andrew Burrows and Lord Rodger of Earlsferry (eds) Mapping the Law: Essays in Memory of Peter Birks (Oxford University Press, 2006) pp 401-17
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.
Considers T B Smith's work on Scots contract law, in particular pollicitatio, ius quaesitum tertio and error; as an academic and as a Law Commissioner. Particular reference is made to the Law Commissions' joint Contract Code project of the late 1960s and early 1970s.
Discusses ch 15 of PECL and relevant articles of the Gandolfi code.
Hector MacQueen 'Canon law, custom and legislation: Law in the reign of Alexander II' in Oram, Richard (eds) The Reign of Alexander II 1214-49 (Brill, 2005) pp. 221-251
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.
Charlotte Waelde, Hector MacQueen 'The Scope of Copyright' in S.K. Verma and Raman Mittal (eds) Intellectual Property Rights: A Global Vision (New Delhi: Indian Law Institute, 2004) pp 246-258
Compares Scots and South African law on illegality and public policy in contract, including restraint of trade and gambling transactions, and asks whether PECL provides any model for future development of the law in the two systems.
Hector MacQueen 'Illegality and immorality in contracts: towards European principles' in Arthur Hartkamp, Martijn Hesselink, Ewoud Hondius, Carla Joustra, Edgar du perron, Muriel Veldman (eds) (eds) Towards a European Civil Code (3rd edition) (Kluwer Law International, 2004) pp 415-430
Considers development of illegality/immorality principles in PECL and the Gandolfi code of contract.
Hector MacQueen 'Intellectual property in a peripheral jurisdiction: a matter of policy?' in Vaver, David, and Bently, Lionel (eds) (eds) Intellectual Property in the New Millennium (Cambridge University Press, 2004) pp.58-76
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 'Scots law in Europe: the case of contract' in Hector MacQueen, Antoni Vaquer, Santiago Espiau (eds) Regional Private Laws and Codification in Europe (Cambridge University Press, 2003) pp. 102-117
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, Vaquer, Antoni, and Espiau Espiau, Santiago 'Introduction' in Hector MacQueen, Antoni Vaquer, Santiago Espiau (eds) Regional Private Laws and Codification in Europe (Cambridge University Press, 2003) pp. 1-17
Analysis of chapter 15 of the Principles of European Contract Law
Hector MacQueen 'Unjustified Enrichment' in Anne Griffiths, Douglas Brodie, Hector MacQueen, Christina Ashton, David Brand, James Chalmers, Vic Craig, Stuart Cross, Valerie Finch, Alasdair Gordon (eds) Fundamentals of Scots Law (Thomson/W Green, 2003) pp. 267-314 (chapter 8)
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.
Douglas Brodie, Hector MacQueen 'Private rights, private law, and the private domain' in Alan Boyle, Chris Himsworth, Hector MacQueen, Andrea Loux (eds) Human Rights and Scots Law (Hart Publishing, 2002) 141-176
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 'Two visitors in the Session, 1629 and 1636' in Hector MacQueen Miscellany IV (Butterworths for The Stair Society, 2002) 155-168
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 and English Law: the Case of Contract' in M D A Freeman (ed) (eds) Current Legal Problems 2001 (Oxford University Press, 2002) Vol 54, pp. 205-229
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 Civilain one, but of a genuine and critical interaction between the two.
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.
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 'Copyright and the Dead Sea Scrolls: a British perspective' in Hector MacQueen, Timothy H Lim, Calum M Carmichael (eds) On Scrolls, Artefacts and Intellectual Property (Sheffield Academic Press, 2001) pp. 99-115
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.
This chapter outlines the history of the jus quaesitum tertio of Scots law by examining cases and historical accounts that reveal the introduction and existence of the third party rights in contracts in the law of Scotland. In the early stages of Roman law, the law did not recognize the existence of third party rights arising directly from contracts. It was the medieval canon lawyers who first challenged the prevailing view of the Roman law on third party contracts and it was the Spanish scholastics of the 16th century who argued for the enforceability of third part contractual rights. This chapter discusses third party rights in contracts. It assesses the doctrine of consideration and the doctrine of ‘privity of contract’.
Hector MacQueen 'Good faith in the Scots law of contract: an undisclosed principle?' in Angelo D M Forte (ed) (eds) Good Faith in Contract and Property (Hart Publishing, Oxford, 1999) pp. 5-37
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 'Software Transactions and Contract Law' in Lilian Edwards, Charlotte Waelde Law and the Internet: Regulating Cyberspace (Hart Publishing, 1997) pp. 121-135
Hector MacQueen 'Linguistic Communities in Medieval Scots Law' in C. W. Brooks, M. Lobban (eds) Communities and Courts in Britain 1150-1900s (London, Hambledon Press, 1997) pp. 13-24
Hector MacQueen 'Contract (Scotland) Act 1997' in Shirley Archer, Stephen Harvey, Peter Nicholson (eds) Current Law Statutes (London, Sweet and Maxwell , 1997)
Hector MacQueen 'Title to sue (contract)' in Hector MacQueen The Laws of Scotland: Stair Memorial Encyclopaedia (Vol. 15) (, 1996) 814-964
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 Scots Law into the 21st Century: Essays in Honour of W. A. Wilson (W. Green / Sweet & Maxwell, 1996) pp. 1-9
Hector MacQueen 'Glanvill resarcinate: Sir John Skene and Regiam Majestatem' in A. A. MacDonald, M. Lynch and I. B. Cowan (eds) The Renaissance in Scotland: Studies in Literature, Religion, history and Culture offered to John Durkan (, 1994)
Hector MacQueen 'Intellectual Property in Europe' in (eds) The Laws of Scotland: Stair Memorial Encyclopaedia (Vol. 18) (, 1993)
Hector MacQueen 'Passing Off' in (eds) The Laws of Scotland: Stair Memorial Encyclopaedia (Vol. 18) (, 1993)
Hector MacQueen 'Trade Marks' in (eds) The Laws of Scotland: Stair Memorial Encyclopaedia (Vol. 18) (, 1993)
Hector MacQueen 'Industrial Designs' in (eds) The Laws of Scotland: Stair Memorial Encyclopaedia (Vol. 18) (, 1993)
Hector MacQueen 'Plant Varieties' in (eds) The Laws of Scotland: Stair Memorial Encyclopaedia (Vol. 18) (, 1993)
Hector MacQueen 'Introduction' in (eds) The Laws of Scotland: Stair Memorial Encyclopaedia (Vol. 18) (, 1993)
Hector MacQueen 'Stair's later reputation as a jurist: the contribution of William Forbes' in W. M. Gordon (eds) Stair Society Miscellany III (Stair Society, 1992) 173-194
Hector MacQueen 'The laws of Galloway: a preliminary survey' in R. D. Oram and G. P. Stell (eds) Galloway: Land and Lordship (Scottish Scoiety for Northern Studies, 1991) 131-143
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 (eds) Humanism in Renaissance Scotland (Edinburgh University Press, 1990) 48-74
Hector MacQueen 'The brieve of right revisited' in R. Eales and D. Sullivan (eds) The Political Context of Law (Hambledon Press, 1987) 17-25
Hector MacQueen 'Contract, Unjustified Enrichment and Concurrent Liability: A Scots Perspective' in (eds) none (, 0)
Reports
Hector MacQueen, Charlotte Waelde Information on United Kingdom relating to the questionnaire to national experts contained in the appendix to the study on transfer of the rights of performers to producers of audiovisual fixations (World Intellectual Property Organisation, 2003)
Notes and Reviews
Hector MacQueen 'Change of circumstances: CISG, CESL, and a case from Scotland' (2012) Journal of International Trade Law and Policy pp.300-305
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 [2011] 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 'Faulty goods, rejection and connected lender liability' (2011) Edinburgh Law Review Vol 15, pp 111-115
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 'The Copyright and the Information Society Directive' (2001) E-L@w Review Issue 1, pp. 4-7
An analysis and assessment of the Directive and its impact upon the law of copyright.
Hector MacQueen 'Quis Custodiet? The Scotland Bill, Human Rights and the Judges' (1998) Scotland Forum pp. 8-9
Hector MacQueen 'The Scotland Bill and Private Law' (1998) Scotland Forum p.3
Hector MacQueen 'Concrete Solutions to Liability: Changing Perspectives in Contract and Delict' (1998) Arbitration: Journal of the Chartered Institute of Arbitrators Vol. 64, pp. 285-291
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 'Third Party Rights in Contract: A Case Study in Codifying and Not Codifying', School of Law Working Paper Series, 2011/18 (SSRN, 2011)
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 'Good Faith in the Scots Law of Contract: An Undisclosed Principle?', School of Law Working Paper Series, 2011/19 (SSRN, 2011)
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).
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 'Concrete Solutions to Liability: Changing Perspectives in Contract and Delict', School of Law Working Paper Series (SSRN, 2011)
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.
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.
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', School of Law Working Paper Series, 2009/19 (SSRN, 2009)
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 MacQueenBrian G M Main and others, 'Agenda for the Scottish Parliament', Hume Occasional Papers, No. 56 (David Hume Institute, Edinburgh, 1999)
Hector MacQueen 'Paying for Devolution', Hume Occasional Papers, No. 49 (David Hume Institute, Edinburgh, 1996)
Papers and Presentations
Hector MacQueen 'Pragmatism, precept and precedents: commercial law and legal history' presented at Continuity and Change: a celebration of the life of Professor Angelo Forte, Aberdeen, 2013
Analysis of the facts and law of the case of Cadell & Davies v Stewart (1804).
Hector MacQueen 'The king's council and church courts in later medieval Scotland' presented at Ius Romanum, Ius Commune, Ius Hodiernum, Amsterdam, 2010
Analysis from printed records of relationship between spiritual and temporal jurisdictions in Scotland 1466-1503
Hector MacQueen 'Authors, editors, originality and antiquity' presented at Oxford Intellectual Property Research Centre Seminar series, St Catherine's College, Oxford, 2009
A discussion of claims to copyright in editorial work on the texts of such ancient manuscript material as the Dead Sea Scrolls
Hector MacQueen, Charlotte Waelde 'Information on United Kingdom relating to the study on transfer of the rights of performers to producers of Audiovisual Fixations' presented at Ad Hoc informal meeting on the Protection of Audiovisual Performances, World Intellectual Property Organisaton, Geneva., 2003
Synopsis