oa Fundamina : A Journal of Legal History - Stair, Mackenzie and risk in sale in seventeenth century Scotland



The seventeenth century was a particularly important period in terms of the development of Scots law. In the second half of that century, Scotland's first two institutional works were published. Viscount Stair's Institutions of the Law of Scotland, probably written in 1659, was published in 1681, and Sir George Mackenzie's Institutions was published in 1684. Although only three years separated their publication, the two treatises did not always agree on points of substantive law. Indeed, their conclusions on the law of risk in sale were contradictory and differed again from the view which had previously been dominant. The question of which party to a contract of sale bears the risk of loss, theft or damage after a sale is completed but before delivery can be affected is one which is important to the practice of any legal system. In Roman law the risk before delivery lay with the buyer.


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