Property

What is a real right?

A right in a thing, enforceable against the world.

What is a personal right?

A right against a particular person, usually arising from contract or delict.

Which is stronger: a real right or a personal right?

A real right.

Why are real rights stronger than personal rights?

They survive changes of ownership and are enforceable against third parties.

What is the principal real right in Scots law?

Ownership.

What does ownership entitle the holder to do?

Use, enjoy, and dispose of the thing, subject to law and agreement.

Can there be more than one owner of a thing at the same time?

No, there can only ever be one right of ownership (co-ownership is shared ownership).

What are subordinate real rights?

Real rights held in someone else’s property (jus in re aliena).

Name the subordinate real rights recognised in Scots law.

Servitude, negative real burden, proper liferent, lease, right in security.

What is a servitude?

A real right allowing limited use of neighbouring land (e.g. right of access).

What is a negative real burden?

A real right imposing an obligation to refrain from doing something on burdened land.

What is a proper liferent?

A real right to use another person’s property for life.

What is a lease of land?

A contract granting exclusive possession of land for a period in return for rent.

When does a lease become a real right?

When it is constituted in accordance with the relevant publicity rules (e.g. registration or possession).

What is a right in security?

A real right held by a creditor to secure payment of a debt.

What is the numerus clausus principle?

There is a fixed list of real rights; new types cannot be freely created.

What does prior tempore potior jure mean?

Earlier in time, stronger in right.

What types of property are recognised in Scots law?

Corporeal and incorporeal; moveable and immoveable.

What is corporeal property?

Physical, tangible things.

What is incorporeal property?

Intangible rights, such as intellectual property or debts.

What is heritable (immoveable) property?

Land and buildings.

What is moveable property?

Property that is not land, including physical moveables and incorporeal rights.

What is derivative acquisition of ownership?

Acquisition of ownership from a previous owner.

What is the key distinction in derivative acquisition?

The distinction between contract and conveyance.

What do missives create?

Personal rights, not real rights.

What is conveyance?

The act that transfers ownership.

What is the publicity principle?

Ownership transfers only through an external, public act.

How is ownership of land transferred?

By registration of the disposition in the Land Register.

What statute confirms that ownership transfers on registration?

Land Registration etc. (Scotland) Act 2012, s 50.

Can ownership exist without publicity?

No.

What is meant by “traditionibus, non nudis pactis”?

Ownership transfers by delivery, not by bare agreement.

What is warrandice?

A guarantee by the transferor that they have good title.

What types of title can a transferee receive?

Absolutely good, voidable, or void.

What is an absolutely good title?

A title free from challenge.

What is a void title?

A title that is legally ineffective from the start.

How can a void title arise?

Granter had no title or there was a fatal defect in the conveyance.

What does nemo dat quod non habet mean?

No one can give what they do not have.

Can a void title ever be cured?

No.

What is a voidable title?

A title that is valid unless and until reduced by a court.

How can a voidable title arise?

Fraud, breach of inhibition, gratuitous alienation, offside goals rule.

When can a voidable title be cured?

When the grantee is in good faith and gives value.

What is the effect of good faith and value on a voidable title?

The title becomes absolutely good.

What is reduction?

A court order setting aside a voidable transfer.

What are the three stages of acquiring ownership of land?

Contract, settlement, registration.

Which stage actually transfers ownership?

Registration.

What happens if a disposition is not registered?

Ownership does not transfer.

What case highlights the danger of the conveyancing gap?

Burnett’s Trustee v Grainger.

What happens to unregistered dispositions in insolvency?

The trustee in sequestration prevails.

What should a solicitor do with a disposition?

Register it as soon as possible.

What is the offside goals rule?

A rule making a real right voidable if obtained in bad faith in breach of a prior personal right.

What is the leading case on offside goals?

Rodger (Builders) Ltd v Fawdry.

What kind of prior right must exist for offside goals to apply?

A personal right to obtain a real right.

What knowledge is required for offside goals?

Actual or constructive knowledge of the prior personal right.

Does the offside goals rule apply to involuntary transfers?

No.

Which case confirms offside goals does not apply to involuntary transfers?

Burnett’s Trustee v Grainger.

Does the rule apply if the transferee is a donee?

Yes.

What is the classic offside goals scenario?

A double sale of land.

What is the remedy for the party with the prior personal right?

Reduction of the later disposition or damages.

Why is it called the offside goals rule?

Because registration does not protect a purchaser acting in bad faith.

What case requires the personal right to be one to obtain a real right?

Wallace v Simmers.

When must the transferee have knowledge for offside goals to apply?

Before completion of the conveyance.

What is the policy behind the offside goals rule?

To punish bad faith and protect prior personal rights.

What is corporeal moveable property?

Tangible property that is not land.

What two legal regimes govern transfer of corporeal moveables?

Common law and the Sale of Goods Act 1979.

When does common law apply to transfer of corporeal moveables?

Where the transfer is not a sale (e.g. gifts).

What are the two requirements for transfer of corporeal moveables at common law?

Mutual intention and delivery.

Can ownership of a corporeal moveable pass before delivery at common law?

No.

Can ownership pass after delivery at common law?

Yes, if the parties intend this.

What is delivery?

Voluntary transfer of possession.

Does registration play any role in transferring corporeal moveables at common law?

No.

Does payment affect transfer of ownership at common law?

No, intention and delivery are decisive.

What is a sale under the Sale of Goods Act 1979?

A contract transferring or agreeing to transfer goods for money consideration.

Are gifts governed by the Sale of Goods Act 1979?

No.

Are barter or exchange transactions sales under SOGA?

No.

Are goods defined as including money under SOGA?

No.

What types of goods must exist for ownership to pass under SOGA?

Specific or ascertained goods.

What does section 16 of SOGA provide?

Ownership cannot pass in unascertained goods.

What is the basic rule in section 17 of SOGA?

Ownership transfers when the parties intend it to transfer.

Does section 17 require delivery?

No.

Does section 17 require payment?

No.

What is used to determine intention under section 17?

Contract terms, conduct, and circumstances.

What is section 18 of SOGA?

Default rules for determining intention.

Under section 18 rule 1, when does ownership pass?

When the contract is made, if goods are specific and deliverable.

What is a seller’s lien?

Seller’s right to retain goods until paid.

What is a retention of title clause?

A clause reserving ownership until conditions are met.

Which section allows reservation of title?

Section 19 of SOGA.

What do sections 20A and 20B protect against?

Seller’s insolvency in bulk goods sales.

What does section 20A create for the buyer?

A pro indiviso share in the bulk.

What is the nemo plus rule in SOGA?

A non-owner cannot give ownership.

Which section contains the nemo plus rule?

Section 21.

What is section 23 of SOGA?

Protection for buyers acquiring from someone with a voidable title.

What are the two main exceptions to nemo plus under SOGA?

Seller in possession and buyer in possession.

What is section 24 of SOGA?

Seller in possession after sale can pass good title.

What is section 25 of SOGA?

Buyer in possession before ownership passes can pass good title.

What is incorporeal moveable property?

Intangible property such as rights and claims.

How is incorporeal moveable property transferred?

By assignation.

What is a claim under the Moveable Transactions (Scotland) Act 2023?

A right to performance of an obligation.

Who are the parties in an assignation?

Assignor, assignee, and debtor.

What is required for a valid assignation document?

It must be in writing.

What external acts can complete assignation?

Intimation or registration.