Scots Influence on English Law: the Guarantor's Right to Derivative Recourse (Subrogation)

329 This article argues that the English law of guarantees has been open to significant Scots law influence in two important respects. It shows that the equitable considerations applied by the Court of Chancery to the surety’s right to derivative recourse follow the analysis found in the writings of Kames. Moreover, the reform achieved by the enactment of the Mercantile Law Amendment Act 1856, section 5, in effect brought English law into line with Scots law in relation to concurrence of solution. The role played by Scots law and Scots legal thinking in the development of the English law, hitherto insufficiently recognised, is here explored and evaluated.