In Scots law, a creditor may enlist the aid of a third party known as a 'cautioner', who agrees to pay the creditor if the principal debtor defaults. Should the creditor see fit to sue the cautioner, the latter may seek compensation from the principal debtor for the whole amount paid or, if there are other cautioners, a pro rata contribution from the ones who did not pay. While these so-called rights of 'relief' are well established in Scottish case law, there is increasing controversy as to their nature. The present thesis engages with this problem headon, identifying the rationales for a cautioner's various rights of relief and examining how those rationales shape the content of the cautioner's claim in each case. By considering relief within the restricted confines of a cautionary relationship, the thesis aims to demystify a subject that is often complex and diffuse. It also seeks to establish the subject as a free-standing entity, independent of the historical and substantive inter-mixtures through which it has often been conceived in Scots law. After placing the cautioner's rights of relief into their private-law context (Chapters One to Five), the thesis examines each of these rights in detail. Chapter Six considers the basis of a cautioner's right to 'pro rata relief', and Chapter Seven discusses the content of that right, with particular reference to cases where there are three or more cautioners. Chapter Eight builds on the analysis in Chapter Six by determining on what basis a cautioner may claim 'total relief' from the principal debtor. Finally, Chapter Nine examines a cautioner's right to seek relief before paying anything to the creditor.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:767348 |
| Date | January 2018 |
| Creators | West, Euan |
| Contributors | Evans-Jones, Robin ; Ford, John Davidson |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=239875 |
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