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Hitherto, Scots law had failed to use the 'spadework' of the Scots Institutional, bracketed by Smith with abuse of rights, encompasses the general principle that no one should exercise what is otherwise a legitimate right in a way which is solely motivated by the desire to cause annoyance to his or her neighbour.
Typically it is found in the context of neighbourhood law: if, for example, one discovers that a neighbour's house is served by a pipe leading under one's own garden, one is not entitled to cut off the supply, even in the absence of a servitude right (easement), when there is no legitimate reason for doing so.
In the few cases where malice is disputed, there is scarcely any more analysis, although there is suggestion that malice might extend to personal avarice as well as spite towards one's neighbour.
The indications are, therefore, that the doctrine had not been 'fully related or systematised' in the Institutional writers or in the contemporaneous case-law, but that is perhaps not so surprising.Indeed, moving forward to the period preceding , the Scots cases indicate only a marginal role for malice, apart from in procedural applications - the malicious use of diligence, wrongous arrestment upon the dependence of a court action, and malicious prosecution - where malice is approached rather differently.While rule was conceded, but Lord Justice Clerk Moncreiff suggested that as long as a proprietor is carrying out operations on his own land, 'substantial damage' to the neighbour must be made out before the law will interfere.Bankton then drew a distinction between actions which cause direct damage to a neighbour and those which only 'deprive of a benefit': 'There is a great difference between one's suffering damage, and his being precluded from a benefit or conveniency which he was formerly using.' While direct damage was generally actionable, actions which merely deprived of a benefit were not, and that expressly included operations which obstruct a neighbour's light or prospect. act wantonly, with the mere purpose of producing inconvenience and loss to his neighbour but these are all terms which have caused considerable controversy and voluminous discussion in the literature on the Civilian abuse of rights doctrine.Kames also drew a distinction between actions which caused direct harm to neighbours (which were not permitted and to which malice was not particularly relevant - or relevant presumably only as an exacerbating factor) and those which caused consequential damage. In order to understand what malice meant, and the level of intention required before the landowner was stopped from doing what he chose with his property, the case-law from the same period must be examined.contexts - as developed later in many Civil Law systems - there is plentiful evidence, as noted below, that malice was considered relevant in the context of neighbour law.Bankton also mentions malice as a determining factor in the context of whether one could be permitted to set up a fair or market close to that of another.The 'false god' held up in that case was the principle that, in Lord Watson's words, 'no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious'.I am aware that the phrase 'in aemulationem vicini' was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. The law of Scotland, if it differs in that, is in all other respects the same with the law of England. the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due'.While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Smith was one of the key figures in the rediscovery of the distinctiveness of Scots law as a mixed legal system, and he devoted much of his writing to uncovering its Civilian elements.Readers are permitted to make copies, electronically or printed, for personal and classroom use. Smith's evangelical vision (and graphic turn of phrase) encompassed many areas of private law, but the profanity instanced here was the denial of 'the principle of Smith's assumption was that the place of abuse of rights in Scots law should be acknowledged in order to secure a further element of the Civil Law tradition.