Stair, Mackenzie and Risk in Sale in Seventeenth Century Scotland

This paper establishes that there were changing views of which party should be burdened with the risk of destruction or loss in the contract of sale in the seventeenth century. In the early seventeenth century, the dominant view was that the possessor of the object sold bore the risk, as seen in Skene's Regiam (1609) and Hope's practicks. By the mid to late seventeenth century, contrary to previous understanding, the dominant view had changed; it was widely held that the buyer was burdened with the risk. This is seen both in Mackenzie's Institutions (1684) and in the practicks and case notes of the period. This was not, however, the view of Stair. Following a minority ius commune opinion, Stair in his Institutions (1681) held that risk lay with the seller. This may have been held authoritative in a case of 1676, which seems to cite Stair's Institutions while still in manuscript form. This shows first that Stair did not always record the established principles of Scots law in his Institutions. Secondly, if Stair's view was upheld in the case of 1676, this speaks to the importance of his Institutions for Scots law, even before it was printed. Finally, this paper shows that Stair's view was not always followed by his contemporaries or by subsequent judges.