Vote on your favourite Scots law expression
From the well-known like the Moorov doctrine and hamesucken to the obscure like stouthrief, Scots law is replete with distinctive phrases and expressions. And with the interest in the Scots language currently on the rise, we thought we would ask Scotland’s lawyers to engage in a little lockdown levity and vote for their favourite word or expression.
We have asked practitioners and academics to nominate their favourites and have received a variety of responses endorsing Latin classics like ‘avizandum’ and the ‘nemo dat’ rule as well as the obscure ‘mulct’ and the charming ‘Kindly Tenants of Lochmaben’.
Please take a minute to read about them and vote for your favourite. If you have a favourite that is not listed, type it into the ‘other’ option at the bottom.
The Moorov doctrine holds that the evidence of one witness can corroborate the evidence of another in certain situations if the Crown can prove that the accused’s offending was part of a course of conduct, systematically pursued.
Hamesucken is the offence of pursuing someone into their home to assault them. It was once a capital offence. Stouthrief is the “use or threat of violence against a householder who defends themselves during a housebreaking; it is additional to any associated robbery”.
Professor Hector MacQueen chose ‘condictio causa data causa non secuta’. Lord Rodger of Earlsferry states in Shilliday v Smith that the term “covers situations where A is enriched because B has paid him money or transferred property to him in the expectation of receiving a consideration from A, but A does not provide that consideration”.
Though he was tempted by “multiplepoinding”, Professor John Cairns chose ‘assoilzie’. He said: “I like the apparent exoticism, though all it means is ‘absolvitur’, when the accused is found not guilty or the civil action is found in favour of the defender. I like the way it is living link both with the legal past, and the orthographic past, as the printed ‘z’ is a representation of the Middle English and Older Scots letter yogh (ȝ), not found in the Latin alphabet.”
Angela Grahame QC went for ‘mora, taciturnity and acquiescence’. ‘Mora’ means delay beyond a reasonable time. ‘Taciturnity’ has been defined as “a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out”. ‘Acquiescence’ simply means assent to what has taken place. The phrase is used in the context of judicial review.
She said: “I chose this because one of my great pleasures as a junior when drafting defences was finding an occasion to include a plea of mora, taciturnity and acquiescence. The language was so archaic, but the phrase just tripped off the tongue and as it was based on facts and circumstances, it was adaptable to the modern era.
“Once when I was arguing a criminal appeal, I realised that the concepts existed in criminal law as well as civil and I was delighted to find an opportunity to use my civil experience to demonstrate parallels between civil and criminal law and enhancing my argument: much to the surprise of the criminal practitioners on the other side!”
Michael Upton, advocate, settled on ‘stillicide’. This is “the right of the dominant estate to expel rainwater onto the servient estate”, Professor Ernest Metzger notes in a blog post on its inclusion in Vladimir Nabokov’s Pale Fire. It may, however, be more familiar to readers of Robert Louis Stevenson: “I still remember that emphyteusis is not a disease, nor stillicide a crime.”
Dr Jill Robbie offered as her choice ‘res extra commercium’, “which means things outside private ownership for a variety of different reasons” and whose use interests her in the context of water rights.
Usman Tariq, advocate, decided on that term that even English lawyers have heard of: ‘avizandum’ – “time taken for further consideration of a judgment”.
Solicitor Robert Shiels picked ‘mulct’, “which was used long ago for a fine or a penalty”, from the Latin mulctare.
Vice-Dean of Faculty Roddy Dunlop QC selected ‘lawburrows’, which has featured in three of his cases. The Lawburrows Act 1429 states: “Item It is statute ande ordanit that gif ony of the kingis liegis haf ony doute of his life outhir be dede or manance or violent presumpcioun ande he ask souerte of thaim that he doutis the schiref sal tak souerte of the party that the complante is maid apoun sa that the party playntife mak prufe of the dede or of manance or of the violent presumpcioun maid or done till hym …”
Lecturer Malcolm Combe, another yogh fan, chose ‘spuilzie’. He said: “Maybe it’s the “z” that is actually a “y” sound that draws zou – sorry, you – in, but also it represents something conceptually simple in a system of property law: if someone dispossesses you of an object without due process you should be able to act in relation to that, even before engaging in an analysis as to your ownership of the object in question.”
Stephen O’Rourke QC picked the law examiner’s favourite, guaranteed to make an appearance, and usually in the context of something like a stolen roof tile (that undergoes accession, of course): the famous ‘nemo dat quod non habet’, meaning “no one gives what he doesn’t have”.
Lecturer Jonathan Brown, opted for the obsolete remedy of ‘assythment’ – the buying off of criminal remedies.
Douglas Mill’s choice was the eccentric ‘Kindly Tenants of Lochmaben’. “An old form of tenure in a small area of Dumfriesshire which was abolished in 2004 along with the feudal system,” Dr Andrew Steven told SLN.
Mr Mill said: “The Solway is a lovely part of the world. Lochmaben has a great history, interesting castle and tricky wee golf course. What’s not to like? And the expression conjures up wonderful images of a rural idyll.”