By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This volume contributes to its rehabilitation by examining key issues in succession law from a variety of perspectives: national, historical and comparative. In particular it seeks to extend the techniques of legal comparison into an area of law where hitherto they have been little used. The jurisdictions most prominently featured are the mixed jurisdictions of Scotland and South Africa, but there are frequent comparative references, and special attention is given to the Netherlands as the country which has most recently re-written its succession law. The authors of the individual chapters are drawn from Scotland, South Africa, Germany, Italy and the Netherlands. Among the topics covered are freedom of testation, testamentary conditions and public policy, forfeiture clauses and events, revocation of wills by changed circumstances, revocation of mutual wills, fideicommissary substitutions, and succession agreements. The volume opens with an overview of the state of comparative law and with a consideration of compulsory heirship in Roman law.

Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the development of a European private law. Pre-eminent among the mixed legal systems are those of Scotland and South Africa. In South Africa the Roman-Dutch law, brought to the Cape by the Dutch East India Company in 1652 was, from the early nineteenth century onwards, infused with and re-moulded by the common law of the British imperial master. In Scotland a more gradual and elusive process saw the Roman-Scots law of the early modern period fall under the influence of English law after the Act of Union in 1707. The result, in each case, was a system of law which drew from both of the great European traditions whilst containing distinctive elements of its own. This volume sets out to compare the effects of this historical development by assessing whether shared experience has led to shared law. Key topics from the law of property and obligations are examined, collaboratively and comparatively, by teams of leading experts from both jurisdictions. The individual chapters reveal an intricate pattern of similarity and difference, enabling courts and legal writers in Scotland and South Africa to learn from the experience of a kindred jurisdiction. They also, in a number of areas, reveal an emerging and distinctive jurisprudence of mixed systems, and thus suggest viable answers to some of the great questions which must be answered on the path towards a European private law.

(Also published in Daniel Visser (ed.) The Limits of the Law of Obligations (1997).)

Today it is common to find trusts in civil law jurisdictions, a recent and significant example being the Chinese trust, introduced in 2001. Yet civil law trusts are not the same as their common law counterparts, and the Chinese trust departs in some respects even from the model often found in the civil law. In particular, the Chinese trust allows for the possibility of title to trust assets being held, not by the trustee, but by the settlor. The paper examines this arrangement and concludes that, while it could be made to work and would justify the name of “trust”, the Chinese legislation fails to provide sufficient restraints on the power of the settlor. The paper then turns to consider the immunity of trust funds from the private creditors of the trustee. How can this immunity be explained? A traditional analysis is that, as the beneficiaries apparently “prevail” over the private creditors, so the explanation must be found in the nature of the beneficiaries’ rights, which are said to be real or quasi-real. But this overlooks the position of trust creditors. They too “prevail” over private creditors or, to state the position more accurately for civil law trusts, they have a direct right of recourse against trust assets. Any explanation of immunity must thus account for trust creditors as well as for beneficiaries, and there can be no doubt that the claims of the former are (usually) personal and not real. The solution is to be found in the idea of dual patrimony. In a civil law trust there is segregation not only of assets but of liabilities as well. A trustee has both a private and a trust patrimony. Private creditors may claim only from the former, trust creditors (including beneficiaries) only from the latter. Trust funds are thus immune from private creditors because they are held in a patrimony in respect of which the creditors have no rights.

As the last of the “institutional” works, George Joseph Bell’s Principles of the Law of Scotland is today seen as marking the end of the “institutional” period in Scottish legal development. Remarkably, however, the Principles was originally conceived, not as an authoritative work which would bring its author enduring fame, but as a student text - indeed as one part only of a whole system of legal education. This paper examines the circumstances in which the Principles was written and considers its gradual transformation into a work of a quite different kind.

There are no separate rules of testamentary formality in Scotland, and wills are solemnised in the same way as other juridical deeds for which writing is required. The reason is historical. Until 1868 it was not possible to make a will in respect of immoveable property, and heirs could only be disinherited by a deed which had at least the appearance of an inter vivos conveyance. In practice such conveyances tended to be used for moveable property as well although a will was competent. The result was that wills were little used until the second half of the nineteenth century, by which time it was too late to develop distinctive rules of execution. This paper examines the history of testamentary formalities in Scotland, considers the influences, internal and external, on the development of the law, and evaluates the role played by legal policy.