Date01 March 2001
Published date01 March 2001
David J. Ibbetson,A Historical Introduction to the Law of Obligations, Oxford:
Oxford University Press, 1999, xliv + 307pp, hb £35.00.
Our millennial common law is apt to come to an ignominious end now that the
legislative and judicial powers to make and unmake it have been delegated to
strangers from a quite different legal tradition. It is therefore some comfort that its
fascinating past has attracted the stylish intelligence of so many remarkable scholars:
Maitland may soon be in Westminster Abbey, but happily still with us are Toby
Milsom, John Baker and Brian Simpson, to name but three. These are now joined by
David Ibbetson who has written a common law counterpart to Zimmermann and an
obligational companion for Brian Simpson’s work on land law.
English legal historians have been in some respects fortunate. Whereas in France
interest in the history of private law was defused by the caesura of 1804 – the
marvellous muniments of Les Olim are only now being studied – and in Germany the
schism between Romanists and Germanists made global treatment difficult, English
law has been quite continuous and its different components, such as canon law and
equity, can be accommodated without too much difficulty, as David Ibbetson shows.
In other respects, however, the task of the English legal historian is more taxing than
that of continental writers, for his material comes preponderantly from the bench rather
than the study. This was bound to be so, given England’s perennial (and continuing)
distaste for disinterested thought: whereas the continent had 59 universities by 1500
and little Scotland already had four by 1603 when its king came South to rule the
country which had decapitated his mother and was about to decollate his son, it took
England more than 200 years more to produce its third. The English legal historian’s
material is thus procedural rather than substantive, argumentative rather than
propositional, practical rather than conceptual, dicta rather than ratio, resting on
allegations not findings. Often we have only the pleadings, not even the facts, and very
often not the outcome, for what the jury did and why is generally unknown and
unknowable. As the author says ‘... the principal losers are the legal historians who
seek for clear answers to questions that were never explicitly asked’ (p 57). Imagine
trying to cope with modern case-law if the actual disposition of the case were secret,
and all one had were the arguments of counsel and the interventions of the judges.
How specifically English was the law and its development? Certainly the author,
starting out with a brief description of the relevant Roman law, observes that ‘The
friction between [native ideas and sophisticated Roman learning] was a prime force for
legal change, and has remained so right up to the present day’, but this is hardly borne
out by the text. Lord Holt CJ admittedly invoked Roman law as regards bailments (a
useful common law concept unknown to Roman law) and Lord Blackburn was forever
flashing his learning, helpful or not, but it is not every reference to foreign law that is
significant. For example, the author says of one case that ‘the analogy with the Scots
law based on the condictio causa data causa non secuta was drawn’ (p 275); all that was
said, however, was ‘An action at law lies for money had and received to his use, which
is expressed by the Scotch law, causa data sed non secuta’. This is allusion, not analogy.
Again, one would like some warrant for the following: ‘. . . by 1700 it was established as
a rule, almost certainly introduced by analogy with Roman law, that where the plaintiff
had been directly injured by the defendant’s act the correct action was trespass, and
ßThe Modern Law Review Limited 2001 (MLR 64:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.

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