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Book reviews

18 November 13

Reviews of Commercial Leases in Scotland (Gerber); Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (ed Burrows and others)

by Tom Johnston, Frank Crowe (review editor: David J Dickson)

Commercial Leases In Scotland: A Practitioner’s Guide

2nd edition

Kenneth S Gerber

PUBLISHER: W GREEN

ISBN: 9780414018624

PRICE (including CD-ROM): £88.40

The study of leases at university was dull beyond belief. No dollop of mayonnaise, nor half pint of the finest vinaigrette could provide sufficient lubrication for this dryer than dust subject. I was unable to share the enthusiasm with which the lecturer expounded the important changes to the common law of Scotland brought about in that epoch changing year of our Lord 1449, which saw the passing of the Leases Act. In short, I missed the point.

Had I had presented to me even chapter 1 of this book, the scales would have lifted. In seven short pages, under the heading "Doing The Transaction: Commercial and Drafting Points", the whole point of a leasing transaction (plus much sound practical advice) is set out with both simplicity and clarity.

The first edition of this book is to be found on the shelves of most commercial law firms. It appeared as recently as 2009. So why a second edition? Sections have been added on a wide range of topics, including management issues, tenant insolvency, statutory provisions and care homes. The new chapter on notices provides a timely reminder of why the commercial property people should talk to their litigation colleagues before serving any notices. The pitfalls are many and varied.

Some might argue that certain parts, such as the short chapter on management, do little more than promote common sense. Perhaps yes, but none the worse for that. To have leasing lawyers who can combine the necessary eye for detail, and the sometimes pedantic appreciation of the niceties of the English language, with an overview of the big picture and an understanding of the clients’ needs is sometimes in shorter supply than it ought to be.

There is an accompanying CD-ROM with four styles. If I may offer one criticism, it is that they look dated to my eyes. To see any legal contract without a definitions clause and peppered with definitions (hereinafter referred to as “the definitions”) is last century stuff. Two of these styles, the single occupancy and multiple occupancy leases, are given in three forms: the style, revised by the tenant, and counter revised by the landlord. I am not sure whether the numerous typos in the revisals are down to the lack of a good sub-editor, or are there to add realism. They certainly remind me of my own efforts before my highly efficient PA takes over. Again, all the points made are well made, and this will be a fantastic educational tool for trainees.

In his foreword Kenneth Gerber expresses the hope that his readers find his book “helpful and as enjoyable and digestible as any book on law can be”. It is all three. One has to judge an academic book against its stated objectives. On that test Mr Gerber has succeeded splendidly. I congratulate him on this work and commend it to everyone involved in this field.

Tom Johnston, Young & Partners LLP

                             

Judge and Jurist

Essays in Memory of Lord Rodger of Earlsferry

Edited by Professor Andrew Burrows QC, Professor David Johnston QC and Reinhardt Zimmermann, Director of the Max Planck Institute, Hamburg

PUBLISHER: OXFORD UNIVERSITY PRESS

ISBN: 9780199677344

PRICE: £135

It is an infrequent event when a member of the Scottish judiciary is celebrated by a book of essays. In recent times such an accolade has been bestowed upon Lord President Emslie and Sir Gerald Gordon.

At 699 pages this is a substantial work. It includes tributes delivered at the memorial service held at St Giles Cathedral and tributes given by Lord Rodger’s colleagues in the Supreme Court about his work and approach to the law.

Alan Rodger was a world-renowned authority on Roman law, and it is fitting that the book contains a substantial section of essays on aspects of Roman law and Roman legal history. On the bench he never seemed happier than when the Lord Advocate introduced “the warm balm of Ulpian” into an otherwise unremarkable case.

There follows a section on Scots law and Scottish legal history, which develops many of Alan Rodger’s interests such as the works of Robert Burns – see, for example “Ae Fond Kiss: A Private Matter", by Professor Hector MacQueen, concerning the case of Cadell and Davies v Stewart from 1804, when the Court of Session decided to prohibit the publication of love letters written by Burns to “Clarinda”. The action had been raised by the holders of Burns’s copyright and the defender was a Glasgow bookseller.

One of the judgments in the case was delivered by Lord Craig, who was the cousin of “Clarinda”. The lady was not keen that her affair with Burns be publicised. While Lord Craig doubted the pursuers had any right to claim interdict, he asserted that private letters were confidential to both parties and could be published by neither.

The final section of the book, entitled “New Perspectives on Recurring Themes”, analyses and develops some of the areas which recur in Lord Rodger’s work. Aidan O’Neill’s contribution entitled “The Courts, the Church and the Constitution revisited” is a good example, based on his conversations with Lord Rodger when he was Home Advocate Depute and his interest in the civil cases concerning disruption in the Church of Scotland in the mid-19th century which led to the formation of the Free Church of Scotland.

It is an expensive volume but one which rewards the reader with a wealth of knowledge, anecdote and affection for one of the greatest legal figures of our times. I understand the book has been selling well, so now is the time to suggest it as a Christmas present for yourself, or to join a Christmas club to spread the outlay!

(Sheriff) Frank Crowe
 

 

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