The lex commissoria in Scots law

Scots law therefore rejected the implied term on payment of the price. It remains to consider express terms. Bell noted, ‘But although the law rejects, both in England and Scotland, any implied condition or hypothec for the price, it admits express conditions; and an important question arises of the effect of such conditions as against third parties.’^[396] As we have already noted, for such a term as the lex commissoria to be effective against third parties, it was necessary that it should be treated either as a suspensive condition or, if treated as a resolutive condition, as one having effect in rem.

Now the Digest itself pronounced in a prominent place that the lex commissoria was best regarded as resolutive.⁴⁵ If that view was to be followed, then the effectiveness of the lex depended on Scots law adopting the view exhibited in those texts of the Digest which treat it as having effect in rem.

if such conditions or resolutive clauses do stop the transmission of property, and be so meant and expressed, then, as is said before, the bargain is pendent, and the property not transmitted, and the seller remains the proprietor; but if by the contract and clause, the buyer becomes once the proprietor, and the condition is adjected, that he shall cease to be proprietor, in such a case, this is but personal; for property or dominion passes not by conditions or provisions, but by tradition, and other ways prescribed in law.^{[397] [398]}

So Stair appeals - and here he does so expressly - to the maxim traditioni­bus non nudis pactis rerum dominia transferuntur.

We have already seen that the Roman jurists were apparently not at one on the effects of a lex commissoria. To that extent there is nothing particularly remarkable in the fact that Stair chose to follow the school which construed it as resolutive and as having effect only in personam. There was, however, a certain amount of civilian authority for treating the lex as operating in rem. So, for example, the gloss on the passage of Justinian’s Institutes dealing with what it describes as acquisition of ownership sine traditione (it deals, in fact, with traditio brevi manu) expressly mentions reversion under the lex commissoria as an instance of the transfer of ownership without traditio f¹

In any event as a matter of Scots law the maxim was not wholly true, since the law - and Stair himself^[400] - recognised the possibility of traditio ficta (traditio brevi manu and constitution possessorium) and with it the principle that property might indeed be transferred by mere agreement.^[401] In these circumstances it cannot be said that Stair’s argument against the effect in rem of a lex commissoria on the basis of this maxim is of great force, since there are other exceptions to what is only a general rule.

Erskine appears to have taken a different view:

Among the conditions which are only accidental to a sale, and are not admitted except they be expressed, is the pactum legis commissoriae, by which the sale becomes void, res fit inempta, if the price be not paid within a determinate day. The condition, where it is stipulated by an express clause, does not suspend the sale; the property is transferred to the buyer upon the delivery; but if he fail to pay the price within the time limited, the sale resolves, and the property returns from him to the seller; L.

Unfortunately it is not possible to extract from this passage any conclusion much beyond Erskine’s reliance on Ulpian; and his presumed adherence to some of the Digest passages asserting an effect in rem.^[403] Erskine’s editor approaches his statement with disbelief, and suggests that it can be meant to hold only in a question with the buyer and not with third parties.^[404] No followers seem to have been attracted to Erskine’s position. Both Bankton and Bell follow Stair. Bankton notes:

in sales they [pacta legis commissoriae] are good, and strictly to be observed, and expiration of the day is the loss of the right, as I observed formerly; it is founded in the civil law. This is no real quality of the sale, but only personal upon the buyer, who will be liable in damages if he frustrate the paction, by disposing of the subject.^[405]

Bell states:

It is settled as law in Scotland, that an express paction, made by the seller when delivering the property, that the property shall be reinstated in him if the price be not paid against an appointed day, is quite ineffectual against the buyer’s credi­tors. This is the Pactum Legis Commissoriae of the Roman law, which had not the effect of making the sale conditional, but of making it conditionally dissoluble.⁵⁶

Stair’s influence therefore prevailed. It was settled that the only effect of a lex commissoria was in a question with the buyer. It was quite open to Scots law to conclude, as some of the Roman jurists had in their day done, that the effect of a lex commissoria could be in personam only. What was not so obvious was that the means of arriving at this conclusion would be the maxim traditionibus et usucapionibus dominia rerum non nudis pactis transferuntur. From this application of the maxim it followed inexorably that the lex commissoria was unable to protect an unpaid seller against third parties. Since clauses such as the lex commissoria were treated as resolutive, and since resolutive clauses were treated as having effect only in personam, it followed that they offered no protection to the seller in the event of the object ending in the hands of third parties.