Bell’s Principles and the accession of moveables to moveables in contemporary Scots law
By Callum Butterworth (a graduate entrant LLB student at the University of Strathclyde, and a George Joseph Bell Summer Scholar in 2024) - Posted on 6 February 2025
In Scots property law, there are a variety of legal processes that can operate to make someone the owner of an object. Usually, a new owner achieves this status after a voluntary transfer from the previous owner. Alternatively, and much less frequently, something known as “original acquisition” can apply to turn someone into the owner of an object.
Original acquisition is actually a broad term for various processes that can separately confer title on someone, irrespective of any title that may have been held in any predecessor items. One example is where someone makes a brand-new thing out of composite ingredients. Another is when someone captures an unowned, wild animal. This blog post (and a related article) considers yet another process – known as accession – which comes into play when physical items are joined together.
The accession of moveables to moveables is an area of Scots property law relatively untouched, and for good reason. Scottish case law is absent (although it is submitted that properly analysed the case of McDonald v Provan (of Scotland Street) Ltd 1960 SLT 231, where two halves of different cars were joined together, fits the category of the accession of moveables). It would be difficult to argue that the subject is not niche – itself being a narrow application of a subset of original acquisition. The situation under discussion here being that of the accession (the joining of) two pieces of corporeal moveable property in a way that one becomes subsumed in another. A classic example of this is a diamond set in a ring.
My recently published article aims to shed light on this underdeveloped area of Scots property law. The problems the article contends with are twofold. First there is the issue of which pieces of moveable property are “principal” and “secondary” (or “accessory”). Next, the issue of to whom ownership rights should fall arises (not excluding the possibility of co-ownership as one solution).
The approach Scots law takes to answer these problems is one rooted firmly in the work of the Institutional writer George Joseph Bell. It is envisaged that a combined approach, centred on the principles as laid down by Bell, alongside modern proposals for reform offers the most coherent and logical solution.
Turning to the first question of identification of principal and secondary, Bell reasons that in cases of dubiety the principal is that which the other is taken to adorn or complete. We may term this as the “dominant role” argument. Next, in Bell’s formulation, preference should be given to bulk followed by value. As discussed in the article, Bell’s formulation of the “dominant rule” theory appears in common with the work of Roman scholars, and Stair who discusses the “design of the artefact” as determining the principal object. Thus, in our ring example, the precious stone remains secondary to the band of which it is attached, the diamond adorning the ring on which it is set.
It is Bell’s formulation of bulk over value that has afforded criticism from contemporary scholars. However, it is argued that such a preference is not only logical but also in keeping with the Scots law principle of accession. Simply, a test of both value and utility cannot be reconciled together. This is evident in the example of the diamond ring. A test that favours the value of the diamond necessarily excludes one that looks to the design of the ring. Indeed, expressed in rather simple language, the idea that big accedes to small is one generally accepted in the case of the accession of moveables to land.
It is perhaps of more interest to the reader to consider the point of all this debate. The reason why it is so crucial to have clear rules in place to determine the principal object is because of the stark property consequences that arise from the Scots law position of accessorium sequitiur principale (the accessory follows the principle). Under this principle the owner of the principal acquires ownership, and the identity of the accessory is lost. It is perhaps the fear of unequitable results that arise from such a position of sole ownership that has resulted in the development of unwelcome and inconsistent case law.
To offset such unequitable results this paper turns to the recommendations of the Draft Common Frame of Reference (DCFR). The DCFR’s proposals maintain the awarding of sole ownership, in common with the unititular nature of Scots property law, whilst providing for the non-owner party through a security right created in the combined goods at the moment of accession. Such a position would be consistent with the Moveable Transactions (Scotland) Act 2023. That statute is yet to be brought into force, but when it is, Scots law will recognise a security right in corporeal moveables of general application that can exist without possession.
It is with thanks to the Edinburgh Legal Education Trust and the opportunity afforded to me through the George Joseph Bell Summer Scholarship that I was able to devote so much time to this area of law. Credit is also owed to my supervisors Malcolm Combe and Dr Jonathan Brown, whose expertise and support has been invaluable. My paper can be found on the Edinburgh Legal Education Trust website.
The George Joseph Bell Scholarships fund research projects by undergraduate students for up to six weeks over the summer. The closing date for the Scholarships for summer 2025 is 28 March 2025.