Property 3-4

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.

What is intimation?

Notice to the debtor of the assignation.

What register was created by the 2023 Act?

The Register of Assignations.

When does transfer take effect in assignation?

On intimation or registration.

Can obligations be assigned?

No.

What rule protects a debtor who pays in good faith?

Section 10 of the 2023 Act.

What is the rule for double assignations?

The debtor is protected if they pay in good faith.

What is assignatus utitur jure auctoris?

The assignee takes subject to defences against the assignor.

Which section puts assignatus utitur partly on a statutory footing?

Section 14 of the 2023 Act.

Is assignatus utitur a shield or a sword?

A shield.

What is warrandice debitum subesse?

Warranty that the debt exists.

Which section codifies warrandice in assignation?

Section 9 of the 2023 Act.

What is original acquisition of ownership?

Acquisition not derived from a previous owner.

Name the modes of original acquisition.

Occupation, accession, specification, commixtion, confusion, prescription.

What is occupation?

Taking possession of ownerless property.

What is res nullius?

Ownerless property.

Can land be acquired by occupation in Scotland?

No.

What requirements must occupation meet?

Taking possession.

What is accession?

Joining of two things so one becomes part of the other.

What determines principal and accessory?

Functional subordination and permanence.

What is the legal effect of accession?

Accessory loses separate ownership.

What is specification?

Creation of a new thing from materials.

Who becomes owner under specification?

The manufacturer.

What is commixtion?

Mixing of solids.

What is confusion?

Mixing of liquids.

What is the result of commixtion or confusion?

Common property with pro indiviso shares.

What is positive prescription?

Acquisition of real rights through possession over time.

What is the prescriptive period for land?

10 years.

What are the requirements for positive prescription?

Possession, foundation writ, no interruption.

What must possession be?

Open, peaceable, and continuous.

What can positive prescription cure?

Void and voidable titles.

What is negative prescription?

Loss of rights through non-use.

Can ownership of land be lost by negative prescription?

No.

How long does non-use extinguish a servitude?

20 years.