Concluding remarks
In assessing the influence which the actio communi dividundo has had on the development of the law relating to common ownership in Scotland, one has to distinguish two questions: what in point of fact has been its influence, and what have writers or judges believed its influence to have been? The distinction is important with respect to the alleged influence of the Roman action on the law of common ownership of land in Scotland.
It is generally considered that the remedy of division or sale by which the separation of common proprietors is effected is of primary importance in relation to land. Yet it is precisely in this context that some doubt exists as to whether in fact the old brieve of division from which the action for sale or division is derived was itself modelled on the actio communi dividundo or was an independent product of Scots common or feudal law. It is by no means clear that there is solid institutional authority for the former proposition, though it is clear both that there is solid judicial authority for it and that the judges have believed that institutional authority as a whole supports it. Thus one important conclusion which may be drawn from the material studied in this essay is that it is the courts and not the institutional writers who have established the Roman law and specifically the actio communi dividundo as the basis of the law of common ownership in Scotland.However, as has already been noted, not all cases concerned with common ownership in land and not all judges have invoked the Roman law. Indeed, generally speaking, judicial affirmation of the actio communi dividundo as the root of the Scots law was very slow in coming. At the beginning of the eighteenth century the courts were certainly not prepared to make such an affirmation.[361] In two other eighteenth-century cases, arguments were submitted to the court on the relevance of Roman law for the Scots law on division or sale of property held in common.
Although they were not rejected by the court, they were not explicitly made the foundation of its judgment, at least according to the availablereports.94 One has to wait until 1852 for an authoritative judicial statement which locates Roman law and specifically the actio communi dividundo as the source of the Scots rules.95 Was this a piece of ‘historical engineering’ (even if accomplished in good faith), or was it belated recognition of the true course of evolution taken by Scots law in its treatment of common ownership? Further studies on the early history of the brieve of division will be needed before one can be sure of the answer. It is worth remembering that already Craig in the first part of the seventeenth century had cited authorities to the effect that in Scots law co-heirs had to agree to any division of the inheritance.
Perhaps, however, it is a mistake even to postulate a true course of evolution waiting to be discovered and charted. One might have to accept that, whatever the pre-nineteenth-century history of the rules of common ownership, the effect of Lord Rutherfurd’s judgment was to create a new source and fount of inspiration for those rules. From this point of view one simply has to accept that Lord Rutherfurd inaugurated a new start for the development of the law and provided the authority which permitted later judges to go back to the texts of Roman law in their search for a relevant rule to be applied in Scots law.
With respect to the post-TfrocA: development of the law of common ownership, it is difficult to avoid the conclusion that specific recourse to rules of Roman law depends very much on the individual predilections of counsel or judges. Of the nine cases decided after Brock, considered in this paper, only three96 make in their judgments an explicit reference to Roman law.
In both the most recent of these decisions the judges on the facts found it expedient to go back to Roman law in order to support their rulings. Paradoxically it looks as though appeal to Roman law may again be becoming judicially fashionable in this area of the law, even though judges on occasion may be careful to point out that not all the rules established by the Roman jurists with reference to the actio communi dividundo can be assumed to be part of Scots law (Crathes). Perhaps the second important conclusion to be drawn is that, although by no means all cases concerned with common property refer to Roman law, this source remains available to help judges in the decision of difficult cases. Not until a court has actually identified which of the specific Roman rules is to be taken as part of the law of Scotland can that rule be so regarded. In other words one has again to distinguish two questions. The first can be94 Stewart v. Feuars of Tillicoultry (1739; above, n. 42); Milligan v. Barnhill (1782; above, n. 44).
95 Lord Rutherfurd in Brock v. Hamilton (1852; above, n. 50).
96 Provost etc of Banff v. Ruthin Castle Ltd (1944; above, n. 63); Scrimgeour v. Scrimgeour (1988; above, n. 85); Crathes Fishing Ltd v. Bailey’s Executors (1990 and 1991; above, nn. 69 and 72). put in this way: is the Scots law of common ownership derived from the Roman law, specifically that concerned with the actio communi dividundof At this broad level the answer, at least since Lord Rutherfurd’s judgment in style='font-size:10.0pt;font-style: italic'>Brock, is ‘yes’. The second question concerns the extent to which each of the individual Roman rules associated with the actio communi dividundo can be deemed to be part of Scots law.
The answer can here be affirmative only where one has an express judicial ruling on the point.Finally, one may ask in what sense can Roman law be said to be ‘authoritative’ for the Scots law of common ownership? This question itself may be phrased more specifically in the form: what ‘authority’ have the courts in developing the rules of common ownership ascribed to texts from the Corpus luris Civilis? Such questions admit at least of a double answer. In the first place that portion of Roman law subsumed under the head of the actio communi dividundo has been judicially held to have been received into the law of Scotland. What remains in some doubt is the extent of the reception. Yet it is clear that the main principles governing the operation of the action have been incorporated into Scots law. These may be summarised as follows. No person with a pro indiviso interest in property held in common can be barred from seeking a separation of his interest unless he is personally bound by contract not so to proceed.97 In giving effect to an application by a co-owner for a separation of interests a court may consider the following options: physical division of the property, requiring it to be sold by public auction or private treaty and the price divided between the co-owners, or permitting one of the co-owners to acquire the share of the other(s) subject to the payment of appropriate compensation. One possible difference between the Roman and the Scots law relates not to the content but to the operation of the rule. It seems that Scots law might be more willing than Roman law to permit the sale of the property to a third person, with consequent division of the price between the co-owners.
The above answer can perhaps be described as ‘historical’ or ‘static’ in that it looks at the position in Scots law at a fixed point in time and determines which particular Roman rules have in fact been received into Scots law.
Another kind of answer, however, looks at the matter from a more ‘dynamic’ perspective. It considers the process by which consideration is given to the adoption of a rule of Roman law rather than the result of the process of reception as determined at one particular point in time.From the ‘dynamic’ perspective the position can be described as
97 The judgments of the Inner House in Crathes (1991, above, n. 72) suggest that the full formulation of the rule in Scots law requires the addition of a reference to the co-owner being personally barred in some other way. follows. A complex of rules dealing with a certain area of law, here that on common ownership, may either not have been received in toto at one particular time or, if they have theoretically been received in toto, difficulties may arise at a later time in determining the exact content of what has been received. In either case one will have a continuing process of validation of particular rules for which there is a possible argument that they have been, or should be, received into Scots law.
What is of interest is the nature of the criteria by which a rule is ‘validated’ as a rule of Scots law. These criteria are not normally defined by judges. The material on the actio communi dividundo suggests that, where a question arises as to whether a rule of Roman law is also to be treated as a rule of Scots law, judges look in the first place at earlier decisions of the Scottish courts. If among these decisions there are to be found judgments or dicta adopting rules similar in content to that whose ‘validation’ is immediately in question, it is likely that the latter will also be deemed to have been accepted into Scots law. The judgment of Lord Rutherfurd in Brock v.
Hamilton provides an example of a judicial opinion to which frequent recourse is made for the purpose of the validation of rules. Ultimately, of course, whether or not a judge is prepared to accept a rule of Roman law to be a part of Scots law depends upon his conviction as to its individual equity and appropriateness to the particular case he is called upon to decide.Hence, when raising the question of the authority of Roman law for Scots law from the ‘dynamic’ perspective, one has to answer that the former possesses ‘authority’ in the sense that it is a source to which judges may still today look for help in the decision of difficult cases. Where they are prepared to utilise the source constituted by the Corpus luris Civilis, their conclusion probably has to be understood in the sense that the existence of the Roman rule provides a good reason for holding that Scots law possesses a rule of the same content.[362]