PATTERNS OF SIMILARITY AND DIFFERENCE

Introduction

There is much that is similar or the same in the law of praedial servitudes in Scotland and Louisiana, but there are also significant points of difference. These rather general matters are the subject of part A of this chapter, which seeks to give an overview of the law and to set that law in some kind of historical context. To be properly useful, however, a comparison must also descend to the particular; and while there are many aspects of servitudes where a micro-comparison between the laws of Scotland and Louisiana would yield interesting results, there seems a special value in exploring areas where the two systems have produced different solutions to similar problems. Elsewhere in this work Roderick Paisley contributes a study of the extinction of servitudes by prescription. In the present chapter my micro-topic is gap-filling. How is the law to provide where parties have failed to provide for themselves? Even this subject is quite a large one and it will only be possible to cover two specific aspects. One is the extent to which a servitude carries with it rights not mentioned in the juridical act which brought the servitude into being. The other is the circumstances under which the law will take the radical step of creating a servitude which the parties themselves have done nothing to bring about. These topics are explored in parts B and C respectively. Finally, in part D an attempt is made to draw comparative conclusions of a more general nature.