Cohabitants in the Scottish law of unjustified enrichment
| Jurisdiction | South Africa |
| Pages | 419-452 |
| Author | None |
| Published date | 24 December 2019 |
| Date | 24 December 2019 |
419
Cohabitants in the Scottish law of
unjustied enrichment*
HECTOR MACQUEEN†
This paper considers private law responses to the growing social
phenomenon of couple cohabitation rather than marriage in Scotland.
Rather than being forced into the marriage model, or falling foul of
earlier ideas about immorality and the requirements of public policy,
couples regularly use couple cohabitation contracts, made available by
family law rms in Scotland. This is especially true of couples who are
acquiring houses together. The nancial consequences of relationship
breakdown were until 2006 dealt with mainly by way of an increasingly
sophisticated law of unjustied enrichment, which in this regard has
been cited as a possible model for South Africa. The Family Law
(Scotland) Act 2006 introduced new regimes to deal not only with the
nancial consequences of relationship breakdown but also with issues
arising when a cohabitant died intestate. Claims under each regime must
be made within quite short time-frames: one year from the breakdown
or six months from the death. In 2016 a rst instance judgment in a
breakdown case held that failure to meet the statutory time-limit could
not be escaped by bringing a common-law enrichment claim instead.
The paper criticises this judgment and argues that, while the statutory
regimes are probably better than unjustied enrichment claims when
complex cohabitation relationships fall to be disentangled, the latter
can still provide just solutions in less complicated cases. With reform
of the statutory regimes very much in the air, it is suggested that any
further legislation should make clear its relationship with the existing
* I am g rateful to Dr Gillian Black and Professor Kenneth Norrie for helpful
comments on an earlier draft of this contribution. It also owes much to the writings
of and conversations with others over many years, not least Danie Visser. I am
further grateful to the practitioner audiences with whom I have attempted to share
and develop my thoughts on the subject matter, again over many years. I hope
that other footnotes show something of this indebtedness, even if notwithstanding
the text should manifest my continuing capacity to perpetrate errors of fact,
law and opinion. All URLs cited were last checked on 28 March 2019. Unless
otherwise indicated, unreported cases can be found in the judgments section of
the Scottish Courts website (https://www.scotcourts.gov.uk/search-judgments/
about-judgments).
† LLB PhD FBA FRSE; Professor of Private Law, University of Edinburgh,
Scotland.
2019 ACTA 419
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420 PRIVATE LAW IN A CHANGING WORLD
common law. The new legal status of cohabitant should not lead to the
loss of rights that the party already enjoys in private law.
***
Justinian’s Pandects only make precise
What simply sparkled in men’s eyes before,
Twitched on their brow or quivered on their lip,
Waited the speech they called but would not come.
(Robert Browning, The Ring and the Book, Book V, lines
1781–1785)
Omne autem ius, quo utimur, vel ad personas pertinent
vel ad res vel ad actiones.1
(Gaius Institutes I.8)
Nam hoc natura aequum est neminem cum
alterius detrimento eri locupletiorem.2
(Pomponius On Sabinus Book 21, Digest 12.6.14)
Iure naturae aequum est neminem cum alterius
detrimento et iniuria eri locupletiorem.3
(Pomponius Various Readings Book 9; Digest 50.17.206)
In the South African law of unjustied enrichment Pomponius’ celebrated
principle that no one should be enriched to the detr iment of another has,
like one of Michelangelo’s captive giants, struggled mightily to emerge
fully from the matter which gave it substance: but has succeeded only in
revealing an unnished vision of its form and power.
(Daniel Visser ‘Unjustied enrichment’ in R Zimmermann
and D Visser (eds) Southern Cross: Civil Law and Common Law in South
Africa (1996) 523)
***
I INTRODUCTION
A thought of Danie Visser that has borne itself upon me increasingly
over the course of my career is that ‘the pr inciples of private law …
are created by real people … .’4 An important dimension of private
1 ‘The whole of the law observed by us relates either to persons or to things or
to actions.’ Translation F de Zulueta The Institutes of Gaius Part I (1946).
2 ‘For it is by nature fair that nobody should enrich himself at the expense of
another.’ Translation A Watson (ed) The Digest of Justinian Vol 1 (1985)
3 ‘By the law of nature it is fair that no one become richer by the loss and
injury of another.’ (Watson translation).
4 D Visser ‘The legal historian as subversive, or: Killing the Capitoline geese’ in
D Visser (ed) Essays on the History of Law (1989) 1, 29.
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COHABITANTS IN THE SCOTTISH LAW 421
law is its descriptive, as distinct from its normative, character. Private
law is not so much an attempt to regulate as to reect the ways in
which real people interact with each other in a wide variety of social
contexts: an ‘is’ becoming an ‘ought’. At its core, as Gaius’ famous
trichotomy suggests, is the person – the human individual who from
birth to death (and even afterwards) is the key actor in private law.5
Then there are the relationships with other persons that the person
inevitably has (in particular with those by whom it was conceived
and/or brought up6) and those into which it subsequently enters,
in particular what may be generically described as further f amily
relationships beyond those established by the facts of conception
and birth. Beyond these relations lie ones that may be labelled
transactional, the means by which persons supply to and receive
from others what they need and want. This is the essence of contract
law, as well as the law of associations (including partnerships and
corporations) by which persons group together to achieve shared
goals. The law of delict, on the other hand, is about the collisions in
social life, accidental or otherwise, through which a person causes
harm to another and makes that good or at least better in some
appropriate way. Property law deals with the relationship between a
person and objects that are not persons.
All these private law relations (and in particular the family ones)
existed, it may be suggested, in the world before there was a state;
or, the state was not needed for such relationships to be eective
in the social world. In this sense private law may be said to ante-
date public law and not to be necessarily political.7 In its developed
form, the law of actions certainly involves more formal institutions
beyond the person and its immediate social context, and looks more
to the breakdown than to the establishment and continuation of
private relationships. But it also recognises the legitimacy of self-
help and does not preclude persons settling their dierences in their
5 Note that in Scots law an unbor n child may be treated as already born where
this will be to the child’s benet and the child is, in fact, born alive: The Laws of
Scotland: Stair Memorial Encyclopaedia: Reissue Child and Family Law (2004) paras 4–10.
6 For a Scots case in which the distinction between conception and upbring ing
was critically in issue, see In the matter of the Baronetcy of Pringle of Stichill [2016]
UKPC 16, 2016 SC (PC) 1; discussed by C Agnew & G Black ‘The signicance
of status and genetics in succession to titles, honours, dignities and coats of arms:
Making the case for reform’ (2018) 77 Cambridge Law Journal 321.
7 See N Jansen The Making of Legal Authority: Non-legislative Codications in
Historical and Comparative Perspective (2010); C Donahue ‘Private law without the
state and during its formation’ (2008) 56 American Journal of Comparative Law 541.
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