Jus Quaesitum Tertio - A Res, not a Right?

Abstract

Until the law was reformed by the Contract (Third Party Rights) (Scotland) Act 2017, the law relating to contractual third party rights, in Scotland, was perceived to be problematic. There were thought to be three main problems: Firstly, such a right could be created in respect of a non-person, which seemed incongruous with the contemporary understanding of what a legal 'right' is. Secondly, such rights were thought to be irrevocable, notwithstanding the general principle of contract law that the terms of a contract can be varied at any time where the contracting parties consent to such change. Thirdly and finally, though the law pertaining to jus quaesitum tertio was seemingly concerned only with personal rights, this area of law tended to become 'clouded' by its close functional links to matters of law which are concerned with real rights. As there is an 'unbridgeable divide' between real rights and personal rights in Scots law, the reason for these close links had hitherto been unclear. This article submits that the answer to each of these questions lies in the fact that the historic jus quaesitum tertio was not, as commonly was thought, a right, but was rather a things – a res. The argument rests on a historic consideration of the connection between Scots law and Roman law and the complex etymology of the word 'ius'. In recognition of this, the article presents something of a defence of the continued use of Latin in the classroom, if not the courtroom.