Factor Loco Absentis in United Kingdom and Ireland Law

Factor Loco Absentis: Historical Foundations, Contemporary Function, and Comparative Perspectives within United Kingdom and Ireland Law

Introduction

The office of factor loco absentis – literally, a judicial factor “in the place of an absentee” – is a distinctive product of Scots law, devised to preserve and administer the property of a proprietor who, for whatever reason, is no longer present or cannot be traced. Although the terminology is uniquely Scottish, cognate mechanisms exist elsewhere in the United Kingdom and in Ireland for the protection of estates rendered ownerless through disappearance or incapacity. This article offers a critical analysis of the origin, nature, and modern relevance of the factor loco absentis, integrating leading Scottish authorities from the nineteenth century to the present, examining statutory developments, and situating the doctrine alongside English and Irish analogues dealing with absence.

Historical Origins and Conceptual Framework

The equitable jurisdiction of the Court of Session to appoint a judicial factor over an estate dates to at least the seventeenth century. By the early nineteenth century, the court had differentiated three principal categories:

  • Factor loco tutoris – for pupils lacking a tutor;
  • Curator bonis – for adults incapable of managing their affairs; and
  • Factor loco absentis – for estates of persons absent from Scotland without adequate representation.

In Gordon v Williams’ Trustees (1889) the Inner House described self-appointed collectors of rents as “self-appointed factors loco absentis” and required them to account to a subsequently appointed judicial factor, emphasising that any unauthorised actor “is therefore bound to account” to the court-appointed fiduciary.[1]

Statutory Framework

19th-Century Codification

The Judicial Factors Act 1849 (12 & 13 Vict. c. 51) first placed appointments on a statutory footing, empowering the Court of Session to nominate judicial factors “over the estates of persons who have left the country or are furth of Scotland” (s 19). Subsequent legislation – notably the Judicial Factors (Scotland) Act 1889 (52 & 53 Vict. c. 39) – consolidated procedural matters, including inventory, caution, accounting, and audit requirements.

Modernisation

While the basic architecture remains intact, recent reform proposals culminating in the Scottish Law Commission’s Report on Judicial Factors (Scot Law Com No 233, 2013) and the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 have sought to streamline practice. The prospective Judicial Factors (Scotland) Bill – not yet in force at the time of writing – would further clarify appointment criteria and termination procedures.

Appointment and Jurisdiction

The Court of Session retains exclusive jurisdiction to appoint a factor loco absentis. Petitioners must aver (i) the proprietorial interest of the absentee; (ii) the absence, usually established by factual disappearance or domicile abroad; and (iii) the need for judicial intervention to protect or administer the estate. Cases illustrate the court’s pragmatic approach:

  • Meikle v Wood (Tait’s Factor) (1890) upheld the competence of an action of multiple-poinding by a factor seeking declarator that the absentee was dead, recognising that questions of death or survival are justiciable within the factory process.[2]
  • In Williamson (1886) the court invoked the Presumption of Life Limitation (Scotland) Act 1881 to fix a notional date of death for succession purposes, noting that rents had meanwhile been “accumulated by the agents for the absentee by a factor loco absentis”.[3]
  • Willison, Petitioners (1890) highlights interaction with later statutory regimes: the Guardianship of Infants Act 1886 prevented appointment of a mother as factor loco tutoris because she was already statutory tutor; the Lord President observed the conceptual overlap yet insisted on doctrinal coherence.[4]

Rights, Powers, and Duties of the Factor

Fiduciary Obligations

A factor stands in a fiduciary relationship to the absentee and ultimate beneficiaries. In Drummond v Carse (1881) Lord Shand stressed that “the factor is not the ultimate judge of [the] propriety” of payments and that improper intromissions are “disallowed on the examination of his accounts”.[5]

Collection and Preservation of Estate

Powers typically include letting property, raising or defending actions, and realising moveable assets. The factor may sue former unauthorised intromitters: Gordon v Williams’ Trustees confirmed that title extends even to rents collected before the factor’s appointment if the collectors lacked colourable title.[1]

Interaction with Creditors

Creditors can arrest in the hands of a factor. In Mitchell v Scott (1881) the court held that “arrestment on the dependence of an action is competent in the hands of the debtor’s factor loco absentis”, and that such arrestment founded a preference notwithstanding subsequent bankruptcy.[6]

Accountability

Under the 1889 Act, audited accounts must be lodged annually. Failure can result in removal and personal liability. The criminal sanction of breach of trust (common law embezzlement) is theoretically available, though modern practice relies on civil remedies and professional regulation.

Termination of the Factory

The factory ends automatically on (a) the absentee’s return; (b) proof of death; or (c) by court recall when the estate is exhausted or a trustee/executor assumes control. Johnston v Dobie (1906) illustrates debate over whether a qua appointment lapses automatically on the beneficiary’s majority; the Inner House accepted that certain judicial appointments “fall automatically”, yet practicalities may necessitate a formal recall.[7]

Comparative and Contemporary Perspectives

England & Wales

English law lacks an exact equivalent but appoints receivers under the Senior Courts Act 1981 or administrators under the Mental Capacity Act 2005. In the criminal sphere, issues of “trial in absentia” – as discussed in Spinnato (2001) and Stryjecki (2016) – focus on procedural fairness rather than estate management, yet underscore the legal significance of absence.[8]

Ireland

Irish jurisprudence on absence centres on employment and criminal procedure. In Fuller v Minister for Agriculture (2005) the Supreme Court construed “absence” in statutory disciplinary provisions as physical non-attendance, contrasting with a scenario where an employee was present but under-performing.[9] Although not an estate-management case, it reveals that “absence” remains a term of art capable of divergent statutory meanings on either side of the Irish Sea.

Human Rights Dimensions

Article 1, Protocol 1 ECHR requires that interference with property be “in accordance with law” and proportionate. The regulated, court-supervised nature of the factory satisfies this test. Moreover, the procedural guarantees in Article 6 are respected because applicants and interested parties may appear, be heard, and seek recall, unlike the in absentia criminal convictions criticised in Rexha (2012).[10]

Contemporary Relevance

Global mobility, digital nomadism, and the persistence of missing-persons cases (e.g., Presumption of Death (Scotland) Act 2014) ensure the continuing need for a structured mechanism to administer absentee estates. Reform should aim to:

  1. Clarify triggers for appointment and thresholds of “absence”, aligning with modern presumptions of death;
  2. Streamline transition from factor to executor/trustee upon proof of death;
  3. Introduce clearer guidance on cross-border estates, recognising foreign domiciliary rules and EU Succession Regulation (for deaths pre-Brexit).

Conclusion

The factor loco absentis remains a vital, if specialised, institution of Scots private law. Rooted in equity, codified in nineteenth-century statutes, and adaptable to twenty-first-century challenges, the office exemplifies the Scottish courts’ pragmatic guardianship of property where ownership is in abeyance. While other UK and Irish jurisdictions employ different devices – receivers, administrators, or statutory presumptions – the underlying policy is shared: to balance protection of property with respect for the absentee’s ultimate rights. Sensible modernisation, rather than radical abolition, will best preserve that balance.

Footnotes

  1. Gordon v Williams’ Trustees (1889) 26 SLR 750.
  2. Meikle v Wood (Tait’s Factor) (1890) 27 SLR 902.
  3. Williamson v Williamsons (1886) 24 SLR 170.
  4. Willison and Others, Petitioners (1890) 28 SLR 187.
  5. Drummond v Carse (1881) 8 R 54.
  6. Mitchell v Scott (Moir’s Trustee) (1881) 18 SLR 623.
  7. Johnston (Johnston’s Executor) v Dobie (Hastie’s Trustee) (1906) 14 SLT 286.
  8. Spinnato v HM Prison Brixton [2001] EWHC Admin 340; Stryjecki v District Court in Lublin [2016] EWHC 180 (Admin).
  9. Fuller & Ors v Minister for Agriculture [2005] IESC 93.
  10. Rexha v Serious Organised Crime Agency [2012] EWHC 1274 (Admin).