Obtaining the 'Main Keys to Wisdom': Distinguishing 'Damages' from other Pecuniary Remedies in Scots Law

Abstract

Discusses the taxonomy of the Scots law relating to 'damages', determining that (unlike in the Anglo-American Common law world) the word 'damages' should not be understood as denoting an organising category in Scotland. Argues that Scots law instead possesses a fourfold division of pecuniary judicial remedies, with 'damages' denoting only the primary substitutional remedy in cases of damnum iniuria datum (loss caused by wrongfulness). Identifies the other species of pecuniary judicial remedy as solatium (relevant in cases of iniuria), "solatium" for hurt feelings (potentially relevant in cases of damnum iniuria and iniuria alike) and 'violent profits' (relevant where the pursuer has suffered an unlawful dispossession). Concludes by considering that "solatium" for hurt feelings is misnamed and would be more appropriately termed 'assythment', drawing on the history of the native Scots action and remedy for 'hurt and skaith'.