San Rocco v Clyde Shipbuilding and Engineering Ltd 1923 SC (HL) 105
Citation:Can Roman law be used to explain a legal argument? Yes, Roman law is a secondary source of law which can be used to supplement legal arguments based on primary sources of law to help persuade the Court that they are correct.
Rule of thumb: .
Background facts:
The facts of this case were that San Rocco, an Austrian company, contracted with Clyde Shipbuilding to build engines for them. They paid the first instalment for work to start, with the rest being due on completion of the contract, and then war broke out with it being illegal for Clyde to trade with San Rocco.
Judgment:
The Court held that the contract was frustrated, and that San Rocco were entitled to the first payment to be returned. The Court in this case took the roots of the Judgment from Roman law and fitted it in with the contract. Roman law can be referred to as a secondary source of law, as it shows the base of the law and is also interesting, but it cannot be relied on the legal reason for a decision.
Ratio-decidendi:
‘After all, however, the Roman law, though interesting, is only of service in showing the foundation on which the Scots law rests’. Lord Dunedin
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.