One reason for this difference is, as we shall see (Chapter 3 § 4), historical. As Lord Goff observed recently:
The situation in common law countries, including of course England, is exceptional, in that the common law grew up within a procedural
52 Zimmermann, p 891.
53 Cass req 15.6.1892; Dalloz 1892.1.596.
54 See, eg, Tettenborn, A, An Introduction to the Law of Obligations, 1984, Butterworths; Cooke, J and Oughton, D, Common Law of Obligations, 3rd edn, 2000, Butterworths; Burrows, A, Understanding the Law of Obligations, 1997, Hart. 55 For a brief comparative history, see van Caenegem, RC, Judges, Legislators and
framework uninfluenced by Roman law. The law was categorised by reference to the forms of action, and it was not until the abolition of the forms of action by the Common Law Procedure Act 1852 (15 & 16 Vict c 76) that it became necessary to reclassify the law in substantive terms. The result was that common lawyers did at last separate our law of obligations into contract and tort, though in so doing they relegated quasi-contractual claims to the status of an appendix to the law of contract, thereby postponing by a century or so the development of a law of restitution. Even then, there was no systematic reconsideration of the problem of concurrent claims in contract and tort. We can see the courts rather grappling with unpromising material drawn from the old cases in which liability in negligence derived largely from categories based upon the status of the defendant. In a sense, we must not be surprised; for no significant law faculties were established at our universities until the late 19th century, and so until then there was no academic opinion available to guide or stimulate the judges ...56
The Continental jurist who tries, then, to understand English law through the genera and species framework of the Institutes of Justinian, which as we have just briefly seen, has characterised the civil law from Gaius to the modern codes, will end up both encouraged and frustrated. The jurist will be encouraged both by the existence of the species of contract, tort (delict) and quasi-contract and by the use of the generic term law of obligations by some senior judges.57But the jurist will become very frustrated if an attempt is made to locate these species and the genus within a coherent and logical framework of rights conforming to the traditional pattern of iura in rem and iura in personam legal relationships. English law simply does not think in terms of rights (les
droits subjectifs) nor does it really have a coherent notion of the
distinction between rights and interests.58 It is quite happy to use ‘interest’ where a continental lawyer would see rights, and ‘rights’ where it perhaps means interest (cf Chapter 3 § 3).
There are a number of reasons why English law refuses to conform to the logic of the civil codes. First, and most obviously, because English private law has not been codified; it is, like French administrative law, an area of case law. However, this is really only part of the problem. A more basic difficulty is that the common lawyer has historically thought more in terms of remedies rather than rights and the reason for this is that, unlike the civilian systems, the common law has never progressed to an axiomatic stage of legal science. That is to say, it has never thought
56 Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, p 184.
57 See, eg, Lord Diplock in Moschi v Lep Air Services Ltd [1973] AC 331, p 346. 58 Samuel, G, ‘Le droit subjectif and English law’ [1987] CLJ 264; ibid; ‘La notion
d’intérêt en droit anglais’, in Gérard, Ph, Ost, F and van de Kerchove, M (sous
direction de), Droit et intérêt, 1990, Facultés Universitaires Saint-Louis, Bruxelles,
Chapter 1: General Introduction
of law as an abstract model of interrelating propositions capable of being applied deductively to any factual situation.59It remains rooted in
an inductive stage60and thus even today the nature of the claim can be
of the utmost importance (cf Chapters 4–6). In French administrative law, in contrast, the case law is much less orientated in style towards facts and remedies; the jurisprudence is more concerned with the development of general principles capable of acting as an unwritten code.61This is not to say that fact, argumentation and policy are not of
equal importance in the French system.62The point to be stressed is that
in England the judges are not that interested in expressing themselves in terms of general principle since they see their role as primarily deciding a dispute between two parties (cf Chapter 3 § 2).63
A second reason is that there has never been a clear distinction in English law between actions in rem and in personam.64English judges have to some extent, like the old Roman jurists,65 looked for their answers to legal problems in the circumstances of the case (in causa ius
est positum)66 viewed in the context of their own previous decisions (stare decisis).67But these previous decisions have been guided by a selection of remedies that have not been shaped by the Roman forms of action.68English lawyers traditionally thought more in terms of trespass and debt than in terms of a set of remedies which rigidly distinguished between real and personal relations. And this has resulted in a system of remedies which at one and the same time use ideas from the law of property and the law of obligations.69
A third reason is that the distinction between substantive law and legal procedure is not so clearly drawn in the English legal process as it
59 Cf Zweigert and Kötz, pp 135–42.
60 Samuel, G, ‘Der Einfluss des Civil Law auf das Englische Recht des 19 Jahrhunderts’, in Schulze, R (ed), Französisches Zivilrecht in Europa während des 19
Jahrhunderts, 1994, Dunker & Humblot, pp 287–313.
61 This point is well brought out by Legrand, P, ‘Against a European Civil Code’ (1997) 60 MLR 44, pp 49–50.
62 Cf Bell, J, ‘English law and French law – not so different?’ [1995] CLP 63; Lasser, M, ‘Judicial (self-)portraits: judicial discourse in the French legal system’ (1995) 104 Yale LJ 1325.
63 See, eg, Samuel, Sourcebook, pp 122–23. 64 D.44.7.25.
65 Zimmermann, pp xi–xii. 66 D.9.2.52.2.
67 Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, pp 358–59, 377–79.
68 Samuel, G, ‘System und Systemdenken – zu den Unterschieden zwischen kontinentaleuropäischem Recht und Common Law’ [1995] ZEuP 375.
is in the continental systems (cf Chapter 2). Whether or not a claimant is entitled to a legal remedy can sometimes be influenced as much by the way a case has been presented as by any pre-existing substantive legal relationship or legal rule (cf below § 7(a)). That is to say it can turn on the presentation of evidence70and the nature of the action.71Thus in
order to understand the functioning of the law of obligations in England it is always necessary to consider, at one and the same time, rules which in continental law would be separated into codes of rights and codes of procedure. English legal method, in other words, consists as much in
knowing how to sue as in knowing what are the legal rights of the client.