The Transfer of Moveables in Scotland and England

In analysing the rules for the transfer of property, many continental legal systems make use of terms such as "consensual transfer system", "traditio(n) system", "causal" and "abstract" transfer systems. Such terminology is unknown to English law, and even in Scots law its use is relatively new. This paper analyses the transfer of tangible moveable property on sale in both English and Scots law. The English transfer system for the sale of goods can be identified as one which is both consensual and causal. In a consensual system no delivery of the goods is needed in order to pass property; the consensus between the parties suffices. The term "causal" means that the transfer of property on sale needs a valid contract. Where the contract is void property cannot pass, and where property has passed on the basis of a voidable contract, property reverts to the seller with retroactive effect if the contract is avoided. The transfer system of Scots common law can be identified as an abstract and tradition system. In a tradition system mere consensus does not suffice to pass property, and delivery is also required. That the system is also "abstract" indicates that the validity of the transfer of property is viewed independently of the validity of the underlying contract of sale. This means that the transfer may be valid even though the underlying contract was void from the outset or was later avoided with retroactive effect. In the case of sale, this arrangement was replaced by the Sale of Goods Act, which introduced a totally different system of transfer. However, the Sale of Goods Act did not fully supersede the Scots common law. Where the contract of sale is void or where a voidable contract has been avoided, both transfer systems operate at the same time; for where delivery has taken place, property may still pass on the basis of the common law, even though it cannot pass on the basis of the Sale of Goods Act. This is because while Scots common law demands delivery, it does not demand a valid underlying contract of sale.