ABSTRACT
Scotland has its own legal system, a hybrid of civil law concepts and a home-grown common law (Sellar 1991). Its separate existence is guaranteed by the Treaty of Union of 1707 between Scotland and England,1 but the infl uence of English law on the Scottish system has been pervasive. The London-based legislature for the United Kingdom set up by the Treaty, which after 1707 made law for Scotland in place of the old Parliament of Scotland in Edinburgh, has often foisted on the smaller partner to the Union English terms and concepts which Scots lawyers have been expected to adapt or “kilt” for use in their own system (Sellar 1991: 54-56). This has happened with the English concept of charity, now a long-established cuckoo in the Scottish legal nest.2 It was originally introduced into Scotts law as the criterion for “charitable” tax relief under UK fi scal legislation (Special Commissioners for the Purposes of Income Tax v. Pemsel, [1891] AC 531), then much later was made the basis for an elementary-and recently reformed-system for the regulation of “Scottish charities” (Law Reform Miscellaneous Provisions (Scotland) Act 1990: Part I).
