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This thesis explores an aspect of women's legal history: contractual master-servant law as it applied to female domestic servants in Scotland during the first half of the nineteenth century (c 1800 to c 1850). During this period, when Scotland was becoming an industrial nation, many working-class women served in the households of other people. They washed clothes, scrubbed floors, cooked food, bought groceries, and looked after children. They were hired to do this work under a contract of service in which the servant exchanged her labour in return for remuneration from the master of the household. Despite the fact that such contracts for domestic service were commonplace across Scotland, there has been no academic scrutiny of the law that regulated this industry. This thesis aims to address this gap in the literature in two ways. First, it seeks to explain how the contract of service operated in relation to female domestic servants in the early nineteenth century in Scotland. It therefore sets out the legal principles relating to the formation of a contract for domestic service between a servant and her employer; the obligations of either party under this contract; and the termination of a contract of service. Closely connected to this doctrinal study of the law is the second aim of this thesis: to assess the influence of gender and class upon these legal principles. "Influence" in this context means any way in which gender or class shaped the substantive content of the law, both directly and indirectly. This aspect of the thesis has shown that gender and class played a prevalent and meaningful role in the development of contractual master-servant law as it applied to female domestic servants in the early nineteenth century, although the extent of this influence varied from case to case. For example, there were legal principles that only applied to, or were developed specifically for, female servants. In relation to other legal principles, which on their surface could apply to servants of either sex, gender and class played a less obvious but no less material role in their development. For example, gender dynamics could have caused the conflict between a master and a servant that led to a legal dispute and therefore new law forming. Parties to a service contract also relied upon notions of gender or class when presenting their legal arguments in court, which could also affect the way the law developed. Undertaking such a broad analysis of the influence of gender and class has shown that contractual master-servant promoted a patriarchal understanding of the relationship between a female servant and her employer, in which domestic servants were expected to show due deference to their employer and be subordinate. However, the law also recognised that domestic servants were hired workers whose labour had economic value, which should not be exploited at their expense. In this way contractual master-servant law performed a balancing role in negotiating the interests of servants and their employers in early nineteenth-century Scotland.

For commercial landlords and tenants in Scotland, the common law, rather than legislation, provides most rules for the regulation of their agreement. Yet, despite its widespread practical importance, the Scottish law of landlord and tenant law is riddled with uncertainty due to being severely under-researched. This thesis sheds light for the first time on some of the most fundamental unanswered questions in the area: it evaluates which occupancy agreements can be validly created in Scots law, and how their formation requirements differ. This is important because different occupancy agreements have different implications for parties. Only leases which have become real rights provide security of tenure for tenants. However, as nominate contracts, any lease (whether it creates a real right or operates purely as a contract) contains implied terms (e.g. repairing obligations, notice requirements). Conversely, licences to occupy are easily terminable and incorporate no implied terms. If all the above types of occupancy agreement exist, it is imperative for the smooth operation of modern Scots law that the requirements for constitution of each are clearly delineated. This ensures parties know their rights and obligations from the outset. This thesis has three main parts. The first analyses what is meant by the term "lease". Although the existence of a lease conferring a real right on the tenant is undisputed, an ongoing debate questions the survival of a purely contractual lease, alongside, and distinct from, the real right of lease. This research contributes an historical analysis, exploring for the first time the development of the lease's cardinal elements. Through this detailed analysis, it is argued that the contract of lease does continue to exist, evidenced by stark differences in the formation requirements between the real right of lease and the contract of lease. The clarity provided by this discussion will be particularly important for tenants: contractual leases would provide access to the lease's protective implied terms without the additional onerous requirements needed to create real rights. Only when the scope of the lease is known can the role of licence to occupy be fully understood. The licence to occupy is the focus of the second part of this thesis. Some, such as the Property Standardisation Group, doubt whether the licence exists in Scots law at all. Yet, commercial parties, drawn by the flexibility and simple termination of licences, have used them extensively (e.g. for "pop-up shops"). However, the current uncertainty means that parties risk their licences being unenforceable. My historical research identifies the introduction and extent of the acceptance of the licence in Scots Law. This is important because we cannot fully understand the law in this area without understanding its historical underpinnings, including the extent to which Scots law has been influenced by English law. Unclear formation requirements create additional problems when creating a licence. This research provides much-needed clarification of issues including the definition of exclusive possession and the role of intention as methods of distinguishing the lease from the licence. A detailed study defining these differences has never been previously attempted in Scots law. The third and final part of the thesis draws together the two previous strands. It considers the way in which the law distinguishing the real right of lease, the contract of lease and the licence to occupy could be improved. Ultimately, this research will provide an essential exposé of a practically important area of modern commercial law, recently highlighted by the Law Society of Scotland as requiring exploration and clarity. It provides a scheme which ensures parties know precisely which contract they have created and its implications.

Even though non-pecuniary losses are of great practical importance and arguably they are familiar to any actor in the legal system, the field is hugely understudied and there is a considerable lack of theorisation in several key areas. This thesis examines some general issues such as the effects that a lack of a stable structural language has on their taxonomy, as well as more particular questions such as the specific heads of losses compensated in the areas of privacy protection, defamation, and personal injury. A central argument developed by this work is that there are two main ways in which the legal system conceives non-pecuniary losses: some of them are better described as being normative, while others exhibit a bipolar or consequential structure. Where losses are aligned with the first model, the infringement of a protected interest is the loss, although an abstract one. Conversely, in a consequential model the wrong and the losses that flow from it are conceptually separated, being concrete in nature, as for example pain and suffering or psychiatric injuries, among others. A comparison is drawn with French law, where the theory of personality rights has been developed and expanded for more than a century, and the tension between these two models is more clearly identifiable. The comparative exercise advances the purpose of highlighting the problems faced by English law given its lack of a systematic treatment of non-pecuniary losses. This is achieved by analysing the specific heads of non-pecuniary losses regularly compensated by the courts in the context of privacy protection, defamation and personal injury, to expose whether they are operating at a normative or consequential level. In doing so, one gains a clearer understanding of the reasons why the general reference to the term 'non-pecuniary loss' has such a weak analytic power in English law, and is often implicit, if not completely forgotten.