positive prescription in scotland

The law of prescription provides for the creation and extinction of rights and obligations through the passage of time. Scots law is seen to be recognised both positive and negative prescription for land, for moveable property it is as of yet an unresolved territory. It has never been decided conclusively whether scots law recognises both kind of prescription. Recent academic views take the position that although there is and was rule for negative prescription for moveable property there was not equivalent rules for positive prescription. Scottish law commission made the proposal in favour of statutory form of positive prescription to govern the areas of moveable property and its latest report published draft bill to this effect. This essay shall explore this area and make conclusion whether positive prescription should be introduced in Scotland.

Institutional Writers position on the existence of Positive prescription: The institutional writers are divided on the existence of positive prescription. In Stair’s word “our common rule of prescription is by the course of forty years, both in moveables and immoveables, obligations, actions, acts, decreets, and generally all rights”. From these wording it is plausible to assume that he accepted that a rule of positive prescription was there in Scotland. Forbes, observed Moveables are acquired by forty years Possession without a title". Bankton concluded that there was usucapion when a right of heritage, or of moveables,… is acquired by the uninterrupted possession thereof for the space of 40 years.’ Hume asserts that an owner's right to recover property "moveable or immoveable" is limited "by the doctrines of the positive prescription in virtue of which the possessor gains a right- an absolute unimpeachable right, in virtue of his forty years' possession of the thing as his own". Erskine held that "since the property of moveables is presumed from possession alone ... the proprietor's neglecting for forty years