Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland
Contents
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A. Introduction A. Introduction
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(1) Two primary sub-categories of commercial title conditions (1) Two primary sub-categories of commercial title conditions
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(2) The search for a satisfactory account of the numerus clausus (2) The search for a satisfactory account of the numerus clausus
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(3) Native assessments of the numerus clausus (3) Native assessments of the numerus clausus
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(4) Similarities in content limitations on servitudes – The fundamental but ambiguous concept of utilitas (4) Similarities in content limitations on servitudes – The fundamental but ambiguous concept of utilitas
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B. Title conditions in restraint of trade B. Title conditions in restraint of trade
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(1) Scotland (1) Scotland
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(a) From ambiguity to apparent standardisation: 1760–1840 (a) From ambiguity to apparent standardisation: 1760–1840
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(b) The importance of value and amenity and prohibition on affirmative commercial obligations: 1880–1920 (b) The importance of value and amenity and prohibition on affirmative commercial obligations: 1880–1920
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(c) From Aberdeen Varieties to the Title Conditions (Scotland) Act 2003: commoditisation anxiety and the return of praedial servitudes (c) From Aberdeen Varieties to the Title Conditions (Scotland) Act 2003: commoditisation anxiety and the return of praedial servitudes
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(2) Louisiana (2) Louisiana
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(a) The Provosty Triumvirate (Of Real Obligations): 1907–1915 (a) The Provosty Triumvirate (Of Real Obligations): 1907–1915
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(b) Modern period: 1988–2006 (b) Modern period: 1988–2006
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C. Tying stipulations and affirmative business obligations C. Tying stipulations and affirmative business obligations
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(1) Scotland (1) Scotland
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(2) Louisiana (2) Louisiana
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D. Comparative conclusions D. Comparative conclusions
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2 Title Conditions in Restraint of Trade
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Published:15 October 2009
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Abstract
This chapter enquires whether title conditions can prohibit a burdened property owner from operating a theatre, a seafood restaurant, a public house, an optician's shop, or even an outpatient surgical and diagnostic centre, that competes with a similar business operated on a benefited property? Can they require a burdened owner to engage in some kind of trade with a benefited proprietor or to construct some facility that will benefit the business interests of the person who owns the benefited property? Many legal systems permit these kinds of arrangements as a matter of contract law — as long as the specific agreement in question is not broad enough to violate some external principal of public, anti-competition law. But the more difficult question — and the one that simmers at the centre of this chapter — is whether such an agreement can ‘run with the land’ and be enforced by and against singular or particular successors of the original parties. In other words, can a title condition that imposes a restraint of trade on the burdened property for the sole purpose of conferring a commercial advantage on the benefited proprietor be treated as property? If the answer to this question is affirmative, then a powerful and perhaps new kind of property interest has emerged in Scottish and Louisiana law, one that tells us something significant about the nature of property law itself in these two mixed jurisdictions.
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