The Doctrine of Presumptive Fraud in Scots Law

This article examines the definition and scope of fraud in Scots law, with reference to its historical roots. It is argued that fraud encompassed a far wider range of behaviour than Erskine's description of it as 'a machination or contrivance to deceive', principally by employing the doctrine of presumptive fraud to deliver substantive justice. Although most commentators acknowledge that fraud was sometimes presumed in early Scots law, there is no detailed treatment of the scope of presumptive fraud or the circumstances in which it was used by the courts to impose liability. A detailed study of relevant case law allows for categorization of the various factors which were relevant to invoking the doctrine. It is also suggested that the conceptual basis of presumptive fraud was inequality, thus embodying the substantive outworking of the Aristotelian view of justice as equality.