Landlord’s Liability for Defective Premises. The Presence of the Civilian Tradition in Scots Law

Abstract

About the landlord’s liability for defective premises, the coincidence between § 536a BGB and the Scots Law (Todd v. Clapperton decision) is the main focus of this research. As in many other issues, in regard to this subject the Scots Law is heavily influenced by Roman Law and the Civilian doctrine developed since Middle Ages.
Todd v. Clapperton’s strict liability rule concerning the landlord’s failure to deliver the premises without defects has certainly overstretched what the «earlier authorities» had written, as it’s pointed out by McAllister’s Scottish Law of Leases. But it’s fascinating how Donellus’ implied warranty theory was mirrored by the Buchanan against Stark decision (1776) and how both were used (the former in Germany, the latter in Scotland) to burden the lessor with a strict liability rule. Not surprising, although. The Scots Law was part of the ius commune universe and a similar evolution of the interpretatio of D.19,2,19,1 is one of many proofs of that. Therefore, a common legal culture is a suitable explanation for the aforementioned coincidence.