The lease and the licence in Scots law: A historical-doctrinal analysis
Promovendus: Mw. S. Warwick
Promotores: L. Macgregor, L. Richardson
Duur: 1/9/2017 - 31/8/2020
My thesis focuses on the Scottish law of leases and the related concept of a licence. This topic is, in the case of the law of leases, an under-researched area of Scots law, and in the case of licences, unresearched. There are many uncertainties in this area, from the exact requirements needed to constitute a lease as opposed to a licence, to whether or not a lease can only ever be real or if a contract of lease is still valid. Given the lack of research in this area, my research questions can be stated simply: Research Question 1: What is a lease? What are its requirements? Research Question 2: How is a licence distinguished from a lease? Is the distinction still needed? In order to answer these questions, my research has a strong historical element, considering the origins of the law of leases in Scotland such as Roman law, before tracing the development of the lease and introduction of the licence through early case law and the Scottish Institutional writers. There will also be a comparative element, considering the extent to which Scots law followed a similar path to legal systems with similarities to Scots law, such as South Africa. As more work has been done on the real right and proprietary aspect of lease law, my thesis instead focuses on the contractual element of a lease, and so comparisons with the contract of hire will be used. I hope that my research will ultimately allow me to suggest a way the law could be more coherent in this area.