Property Notions in the Law of Obligations

Editorial Committee of the Cambridge Law Journal

Property Notions in the Law of ObligationsAuthor(s): Geoffrey SamuelSource: The Cambridge Law Journal, Vol. 53, No. 3 (Nov., 1994), pp. 524-545Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507993 .

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CamOridge Law Journal, S3(3), November 1994, pp. 52v545 Printed in Creal Hritain

PROPERTY NOTIONS IN THE LAW OF OBLIGATIONS

GEOFFREY SAMUEL

WHEN the coach carrying Mr. and Mrs. Houghland from Ternhill to Cheshire arrived at its destination, Mrs. Houghland's suitcase could not be found. The suitcase had been loaded on to one of Low's coaches at Southampton, but this coach had broken down at Ternhill and the luggage had been transferred by the passengers to the luggage compartment of a relief vehicle which had arrived some three hours later. The coach company was unable to trace the case or to explain how it had disappeared and in a subsequent claim, either for its value or for damages for its loss, the County Court found in Mrs. Houghland's favour. An appeal to the Court of Appeal was dismissed.

These simple facts may, at first sight, seem too banal to act as the basis for a discussion of European legal thought, legal harrnonisation and legal science. Yet their very simplicity hides a richness that should not go unnoticed by anyone interested in legal methodology and, indeed, legal knowledge in general. What, for instance, might someone with a background in Roman law make of these facts? Should Houghland v. R.R. Low (Luxury Coaches) Ltd.' be classified as a property case to be discussed within a conceptual structure of possession, ownership, bailment and remedies in rem; or as a contractual matter to be analysed in the context of implied terms, breach and (or) non-performance; or as a tort case raising questions of negligence, res ipsa loq2witllr, detinue and conversion? Or is it simply a set of bare facts within which a range of models might find expression?

The comparative lawyer might go further and pose questions about analogous situations. Is a claim for the price of goods sold, or a service rendered, similar in fotm to Mrs. Houghland's claim for the value of her suitcase? Are they both, for example, claims for some specific thing or is there a fundamental difTerence between a claim for the payment of money in performance of a promise and a claim for a lost item of property? Additionally one can ask how legal notions and concepts

' Reader in Law, Lancaster University; Professeur Associe, Paris 1 & ll. This article is a revised version of a paper written for the W.G. Hart Workshop, London, 1993. 1962] I Q.B. 694.

524



C.L.J. Property Notions in the Law of Obligations 525

might affect these classification questions. Is Mrs. Houghland seeking to vindicate her "right" and, if so, does this right differ in form or

substance from the right to a debt for, say, goods sold or from the

right to compensation for injuries caused? In turn, does a debt claim

differ from a claim for the return of money paid to another in error,

by fraud or under an ineffective transaction? And if rights are

correlative to duties, and (or) if they are legally protected interests, do

these duties or these interests vary in form or substance or are they all, to a greater or lesser extent, property rights?

It is the purpose of this article to examine some of these questions in the hope not just of gaining insights into differences of approach between the common law and civil law mind and how these differences

may or may not act as an obstacle to harmonisation and rapprochement. It is hoped, also, that some insight will be gained into what it is to have legal knowledge. For as a leading Italian comparatist has

observed, the goal of comparative law is to know differences existing between legal models and how these differences in themselves contrib-

ute to legal knowledge.2 What are the kinds of models which might make sense of Mrs. Houghland, the coach company and her suitcase?

I

In the law reports Houghland is classified, inter alia, under the heading of bailment and this at once gives rise to some interesting curiosities since bailment is said not only to have come from Roman law but to

have its roots in the law of contracts, that is to say the law of

obligations.3 How is it that an area of law which, seemingly, belongs to the law of property,4 can be traced back to the law of obligations? This is a curiosity because the use of property concepts in the law of

obligations would appear, to anyone brought up within the Romanist

tradition, to be something ofa contradiction in that the law of property is about making or claiming something as ours while the law of

obligations is about binding us to do or to convey something to another.5 The law of property, in other words, is about owning and the law of obligations is about owing. Of course the moment one moves from possessio to obligatio (duty), bailment begins to look like a

relationship binding someone to do or to convey something to another; but it would be misleading to a civil lawyer to classify the "duties"

2 R. Sacco, La comparaison juridique au service de la connaissance du droit (Paris 1991), pp. 8, 10. 3 See, e.g. Diplock L.J. in Morris v. CW Martin & Sons Ltd. [1966] 1 Q.B. 716, 731. Winfield identifies Bracton as the vehicle: P.H. Winfield, The Province ofthe Law ofTort (Cambridge 1931), p.92. 4 Building and Civil Engineering Holidays Scheme Management Ltd. v. Post Office [1966] I Q.B. 247, 261.

5 Gaius IV. 2-4; Digest 44.7.3pr.



526 The Cambridge Law Journal [1994]

arising out of the relationship between person and thing (possessio) under the heading of "obligations" simply because some normative aspects of the property relationship can be captured by the words "duty" and "obligatio". Duties nowadays correlate with rights and rights are classified by Continental lawyers into those that are in rem and those that are in personam.6 In fact, as Tony Weir has recently shown, the property and obligations relationship in respect of"bailment" situations in Roman law itself was more subtle than the crude classification dichotomy might at first suggest;7 but even if the facts of Houghland can be related to the Roman real contracts,8 a curiosity remains in that bailment is based upon the notions of delivery and possession and it is these legal notions that would appear to generate the duties. Delivery and possession are not part of the law of obligations since they have nothing to do with any obligation or duty to deliver or to possess. As Winfield has pointed out, "possession is a justification for separating bailment from both contract and tort" because although contract can be a vehicle for transferring rights in rem, the rights themselves "are all incidental to property, and have no necessary connection whatsoever with the contract the vehicle which transferred them".9 If this is right, how is it that the existence of a contract can directly affect the nature of bailment duty? How is it that a gratuitous bailment gives rise to different duties than a contractual bailment for reward?'° The answer is to be found in the notion of "duty". Duties, and as we shall see "rights", are normative concepts in themselves and, as such, not only can they transcend classification categories but they can carry with them notions from one category and deposit them in another.

In addition to this merging of property and obligations at the level of duty there is another curiosity resulting from the interrelationship of bailment with the law of actions. The remedy enforcing bailment duties was the tort of detinue which, although abolished in form, continues to exist in substance within the tort of conversion.l ] Should the law of tort be seen in bailment situations to be part of the law of property? And, if so, should one extend this idea, given the alternative damages claim in Houghland, to the tort of negligence? Should this tort be seen as a proprietary remedy each time it is utilised to compensate for wrongful interference with property?'2 Admittedly the

6 For a discussion of the historical background see P. Ourliac & J. de Malafosse, }fistoire dfi droit prive: 2: Les biens (2nd ed., Paris 1971), pp. 5>54.

7 T. Weir, "Contracts in Rome and England" (1992) 66 Tutane Law Review 1615, at pp. 1636-1637. 8 R. Zimmerrnann, The Law of Obligations: Roman Foundutions of the Civilian Tradition (Cape

Town 1990), p. 205. 9 Winfield, op. cit.. p. 102.

MorrEs v. CW l'Zartin dE Sons Ltd. [1966] I Q.B. 716, 725-728. " Torts (Interference with Goods) Act 1977, s. 2. 12 C The Mediana [1w] A.C. 1 13.



C L.J. Property Notions in the Law of ObZigations 527

distinction between "loss" and "damage" reflected in the economic loss rule of negligence goes some way in keeping out of this tort duties essentially belonging to other areas of private law;|3 but statute has enshrined the idea that negligence is available as a proprietary action'4 and it may be that distinctions will now have to be reflected strictly at the level of the measure of damages.5 In truth tort protects both property and property ''interests''l6 and once one starts to see a11 tort as a matter of protecting "interests"l7 it has to be asked whether the only meaningful distinction that can be made by common lawyers is the one between criminal and civil processes.'8 Such a question reveals another curiosity because once one says that the law of tort is about "interests" one is in effect saying that what was once the object of an aspect of legal science (the law of tort) has now become the science. Like duty, interest has become a vehicle for transcending legal categories, carrying with it notions that once belonged as specific objects within particular branches of a science; and while it may be true that the common law has never been unsettled by the intermixing of property, contract, tort, equity and real and personal remedies- indeed the old forrns of action were often both obligational and proprietary in folm'9 it has always to be remembered that modern commercial law could not have functioned without a distinction being made between owing and owning. Real security, for example, is entirely dependent upon lawyers adhering to a dichotomy between contract and ownership20 and any commercial textbook worth its salt will spend time on these fundamental concepts.2'

It would be a mistake, however, for civil lawyers to feel superior to common lawyers simply because they have elevated the dichotomy between relations in rem and in personam into an axiomatic legal science. A closer inspection of the civil law tradition will reveal that the property and obligations symmetry is more ambiguous than might at first appear. Certainly the dichotomy between real and personal righes is a fundamental characteristic of the Romanist mind and the older codes, to a greater or lesser extent, are all structured around the separation; yet when viewed from the position of patrimonium, another great civilian notion, the distinction rapidly begins to evaporate as the New Dutch Civil Code (Nieuw Nederlands BurgerlEjk Wetboek) goes

3 The Aliakmon [1986} A.C 1 13. 4 Torts (Interference with Goods) Act 1977, s. I (c), (d). s See, e.g., Tke Albazero 119771 A.C. 774.

16 Torts (Interference wilh Goods) Act l977, s. I (c), (d). 17 See, e.g., P. Cane, Tort L^aw and Economic Interesrs (Oxford 1991). 18 In re Norway s Application 119901 1 A.C. 723. 19 S.F.C. Milsom, fSisrorical Foundations of the Common Low (2nd ed., London 1981), pp. 26s261,

263, 275, 278. 20 Helby v. Marrhews 11985] A.C. 471. 21 See, e.g., I. Davies, Textbook on Commercial Law (London 1992), pp. 15 43.




some way in recognising. This new code, although by no means

abandoning the dichotomy, nevertheless starts out from the position of a law of things as a general category for rights;22 all rights are

patrimonial rights. In doing this the New Dutch Code recalls the

Institutes of Gaius in that, although Gaius made much in Book IV of

the distinction between actions in rem and in personam, he listed

obligationes in Book II as a form of property.23 If obligations are

things why is it that they cannot be owned? Gaius himself never really

posed this question as a matter of substance,24 but in classifying

obligations as a form of property he was including the law of

obligations within the category of res incorporales and, as he himself

recognised, once these intangible forms of wealth were mixed with

tangible forms of property (res corporales) within a patrimony (heredi-

tas) they had the effect of reducing the whole to an abstract form of

property. It was irrelevant that corporeal property might be included

in an inheritance or that a physical thing might be the object of a

contract: nam ipsum ius successionis et ipsum ius utendi fruendi et ipsum ius obligationis incorporale est.2S One could construct a relationship between persona and res which could exist independently from the

vinculum iuris that constituted the obligation relationship between

persona and persona2* while at the same time incorporating the latter

within the notion of res.

Obligations, therefore, gave rise to two kinds of legal relationship. On the one hand they gave rise to a relationship in personam which

consisted of a vinculum iuris between two legal subjects (personae) and

enforceable by an action in personam; on the other hand they gave rise

to a proprietary relationship between legal subject (persona) and legal

object (res, patrimonium, hereditas) which, in respect of a hereditas, could be enforced by a proprietary action (petitio hereditatis) even

against a mere debtor of the estate.27 The idea, therefore, that debts

could not be "owned" has to be qualified; and once the notion of ius

itself had undergone, during the second life of Roman law, its

metamorphosis into a "right"28 the distinction between real and

personal relations was merely a question of the relativity of rights as

the New Dutch Code recognises.29 Owners and creditors both have

entitlements, a right to something (ius ad rem), and the role of

remedies is simply to vindicate these rights (ubi ius ibi remedium). All

22 G. Samuel & J. Rinkes, Contractual and non-contractual obligations in English law (Nijmegen 1992), pp. 22-24.

23 G. H. 14. 24 But cf, e.g.G. II. 38. 25 G. II. 14. 26 Justinian Institutiones III. 13pr. 27 D. 5.3.13.15. 28 See generally H.F. Jolowicz, Roman Foundations of Modern Law (Oxford 1957), pp. 61-81. 29 Samuel & Rinkes, op. cit., pp. 22-23.




legal entitlements, in other words, are forms of property including the

entitlements (actiones) themselves. Why, then, were the Romans so

concerned to maintain the distinction between actions in rem and in

personam, between property and obligations?30 According to Patault

the reason is to be found in the distinction between res corporales and

res incorporales; with respect to the former the Romans were never

able to escape from the idea of a direct connection between a persona and a tangible thing itself and thus dominium in the Gaian scheme

always expressed a relationship between a person and a res corporalis?x There was an element of the descriptive in the sense that ownership was a form of potestas that merged with the actual thing itself. This

position can be contrasted with feudal notions of property which saw

all property relations, not as a direct connection between person and

actual physical thing (in rem), but as a relation between person and an

abstracted "right".32 There was no single bond between person and

physical thing acting as a yardstick for all other property relations; instead the relationship between person and thing was one where the

res was a res incorporalis, even where the object was a physical piece of land (the most important form of property in a feudal society). This

is the reason why English land lawyers think in terms of "estates" and

"interests" rather than relations in things.33

II

If one turns to English law one can certainly find little evidence of

Gaian thinking and plenty of evidence ofa feudal approach even when

it comes to personal property. Accordingly, as we have seen in

Houghland v. Low, English law does not appear to have a separate action in rem to assert title in a res corporalis; it uses instead the law of torts to compensate owners for wrongful interference with their

property.34 The tort of trespass is used to protect possessory interests and conversion can now be utilised not just in its traditional role of

protecting against interferences with title (measured in turn by the

right to possession)35 but in a new role of compensating bailors whose

property has been mislaid or destroyed by bailees.36 These torts, it must be said, have a property flavour in that the compensation tends to be measured prima facie by reference to the value ofthe thing37 and

D. 44.7.3pr. A.-M. Patault, Introduction historique au droit des biens (Paris 1990), pp. 17-18. Ibid., pp. 18-19. F.H. Lawson & B. Rudden, The Law of Property (2nd ed., Oxford 1982), pp. 76-104. See generally, T. Weir, A Casebook on Tort (7th ed., London 1992), pp. 473^178. The Winkfield [1902] P. 42. Torts (Interference with Goods) Act 1977, s. 2 (2). Ibid., section 3 (2).



The Cambridge Law Joarnal [1994] 530

fault is not an aspect of liability;38 but "loss" is increasingly being measured with respect to the general aims of a law of tort, as opposed to a law of personal property,39 and the notion of "duty" is now one of the main conceptual devices for measuring liability.40 Indeed even aspects of ownership itself can find themselves being defined with reference to the neighbour duty.4' The law of contract is similarly infused with property notions.42 In Beswick v. Beswick Lord Denning M.R. attempted to avoid the long-standing right in

personam pnnciple that a contract cannot bind strangers by treating a promise to pay a debt as a matter of property rather than obligation;43 and although this attempt was checked by the House of Lords44 the Law Lords have revived the idea in Lipkin Gorman v. Karpnale Ltd.45 In this case a firm of solicitors was allowed to trace money, embezzled from its client account by a partner, into the patrimony of a gambling club on the basis that the relationship between bank and customer is both obligational and proprietary; the debt owed by the bank to a customer in credit "constitutes a chose in action, which is a species of property; and since the debt was enforceable at common law, the chose in action was legal property belonging to the solicitors at common law".46 It would appear, at first sight, that the solicitors had an action in rem against the gambling club in respect of "their" money and although the principle underlying this proprietary right was the obligation principle of unjust enrichment, the right itself was not "founded upon any wrong committed by the club against the solicitors".47 English law, in contrast to Roman law, does not have an action in rem in respect of things as such; but in respect of money it has an action which aims itself at the res as much as at any persona at

the other end of the obligational chain. Whether or not a plaintiff in a tracing claim has a direct ownership

right in the money or even a remedy in rem in the full Roman sense is by no means certain.48 What does appear more certain is that the

38 See, e.g., Mitchell v. Ealing LBC [1979] Q.B. 1. 39 See, e.g., IBL Ltd v. Coassens [19911 2 All E.R. 145. 40 See, e.g., Mitchell v. lialing LBC 119791 Q.B. i. 41 Moorgate Mercantife Co Ltd. v. Twitefxings [19771 A.C. 890. 42 K. Gray, "Property in Thin Air" [1991] C.L.J. 2S2, 274. 43 [1966] Ch. 538 (C.A.). 44 [1968] A C 58- 45 [19911 2 A.C. 548. 46 Lord Goff at p. 5?4. 47 Shid., p. 578. 48 "Tracing at common law, unlike its counterpart in equity, is neither a cause of action nor a

remedy but serves an evidential purpose. The cause of action is for money had and received. Tracing at common law enables the defendant to be identified as the recipient of the plaintiffss money and the measure of his liability to be deterrnined by the amount of the plaintifFs money he is shown to have received" per Millett J., in Agip (Africa) Ltd. v. Jackson [1990] Ch. 265, 285. C P. Hirks, "Persistent Problems in Misdirected Money: A Quintet" [1993] L.M.C.L.Q. 21E, at pp. 230, 235-236.




possibility of being able to turn the personal action for money had

and received into a tracing claim finally allows restitution lawyers to

escape from the implied contract theory which once underpinned the

quasi-contractual debt remedies.49 In turn this appeal to the law of

property will also allow remedies lawyers to emphasise the truism of

the law of actions that claims for unjust benefits are structurally different from compensation claims for damages. In proprietary claims

one is aiming the action at the res rather than the persona and this

means that the normative quality of the legal relationship (ius) is

founded in the vinculum iuris, not between person and person (obliga-

tio), but between person and thing (dominium) .50 In other words one

is not looking at any act or omission by the defendant. In Lipkin Gorman the defendants did nothing wrong in accepting cash from a

customer who subsequently turned out to be an embezzler since there

is no general duty resting on the supplier of goods or services to

enquire into title to money. It is, in other words, very difficult to see

the casino in breach of any duty vis-a-vis the solicitors and this is why, as will be seen, the case has need of a res in the form of a benefit.

There are some situations, it must be said, where the distinction

between obligation wrongs and property rights is not so easy to

determine; for example if a defendant misuses another's property in

order to make a profit for himself this can be seen either as a "wrong" vis-a-vis the owner or a "right" vis-a-vis the profit (fructus) in the

defendant's patrimony. If, however, it is seen as a wrong there is

something of a problem when it comes to assessing damages in that

the plaintiff may well have suffered little or no damage.51 In these

situations the role of damages has to change; instead of compensation

being measured in terms of the plaintiffs loss they have to be assessed

with reference to the defendant's profit or benefit and this in effect

turns a damages action into one that is closer to a debt claim in

restitution.52 In fact even if the defendant's profit could be turned into

a plaintiffs lucrum cessans (failure to gain) loss there may still be a

reluctance to recognise this as a legally protected interest, at least in

the absence of contract or fraud;53 and this suggests that from a law

of actions viewpoint the courts do seem to distinguish between damnum

and fructus\ between injuring another and vindicating a thing. One is

49 Sinclair v. Brougham [1914] A.C. 398; cf. P. Birks, "English Recognition of Unjust Enrichment" [1991] L.M.CL.Q. 473.

50 "A proprietary claim is one by which the plaintiff seeks the return of chattels or land which are his property, or claims that a specified debt is owed by a third party to him and not the defendant" per Staughton L.J., in Republic ofHaiti v. Duvalier [1990] 1 Q.B. 202, 213-214.

51 See, e.g., Stoke-on-Trent CC v. W. & J. Wass Ltd [1988] 1 W.L.R. 1406; Surrey CC v. Bredero HomesLtd. [1993] I W.L.R. 1361.

52 See Strand Electric & Engineering Co. Ltd. v. Brisford Entertainments Ltd [1952] 2 Q.B. 246. 53 Spartan Steel & Alloys Ltd. v. Martin & Co. [1973] 1 Q.B. 27; Surrey CC v. Bredero Homes Ltd

[1993] 1 W.L.R. 1361.




back, then, to the law of actions idea that there is a structural difference between proprietary (including debt) and compensation claims. Claim- ing something as one's own is a structural relationship that has its foundation in the idea of an actio against a res; and while this structure can certainly be differentiated from an action aimed at another person, based on the idea of a vinculum iuris between persona and persona,54 it does not mean that the English law of actions necessarily conforms to the rigid structure, constructed by the Romanists, of nghts in rem and in personam. If one wishes to have a full picture of the role of property notions in the law of obligations it is necessary to look at the sources not just from the position of the law of things but also from that of the law of remedies.

The difEculty with the technique adopted in Lipkin Gorman is that in approaching debt nzainly from a remedies position (the action for money had and received) it has created a logical contradiction within the law of things. If a debt is something capable of being owned, are not all creditorsr at least all creditors entitled to trace their money in effect privileged creditors? If the casino had been in the process of bankruptcy would not the solicitors have been entitled to their debt before the ordinary creditors? There are several responses that can be offered here. First, one can simply accept the logic of the property relationship and hold that those entitled to trace are indeed in a privileged position. However it would seem that tracing at common law does not necessarily import this logic into the law of restitution; what tracing does in this situation is, according to Peter Birks, to provide a 4ssufficient interest to support the claim against the club''.55 Tracing both in common law and in equity is a form of in personam strict liability56 where the notion of 4'property" has differing degrees of intensity.5'

Secondly, and perhaps rather controversially, one might respond by saying that law is not logical in any universal sense. The role of the court, including the House of Lords, is simply to decide particular cases between pareicular litigants and it is not the duty of the courts to rationalise the legal system. Accordingly the decision in Lipkin Corman is a decision in the law of restitution and its material facts have no relevance for any future problem that might arise ins say, the law of bankruptcy or retention of title situations.S8 If this seems rather heretical it must be remembered that there is judicial authority for this view59 and even civil lawyers no longer see law as a matter of

54J t1l.l3pr.

5S [1991] L.M c L.Q. 473 at p. 478. S6 Sbid, p. 486.

S7 p. Birks 1}9931 L.M.C.L.Q. 218 at pp. 229-230. S8 Set, e.g.r Aluminium hdtrie Kaassen BV v. Romalpa Aluminium Ltd. [19f6] I W.L.R 676. S9 Lord Macmillan in Resd v. J. Lyons & Co. [1947] A.C. 156+ 175.




formal logic where solutions are deduced from axiomatic principles.60 Moreover a system that still actively uses the law of actions as a means

of determining causes of action, which in turn will define legal rights,61

might well be excused, except by the strictest of Modernists,62 from

failing to harmonise the epistemology of the law school with that of

the practitioner. Legal reasoners and legal architects might not, in

other words, be engaged in quite the same enterprise. A third response is to suggest that Lord Goff ought not have gone

as far as he did in importing ownership notions into the law of

obligations or actions. If he had simply recognised that an action for

debt, like an action for damages, can be either contractual or non-

contractual, and that the latter kind of debt claim need not logically be based on any notion of a wrong, then the same result might have

been achieved without recourse to tracing and proprietary rights as

such. If those who suffer injury and loss can bring non-contractual

damages claims without recourse to property notions, why should the

same not be true for debt claims? Why must all debts be based either

in contract or in the law of property? If an action for a quantum meruit

is a debt claim which can exist outside of contract,63 then why not say the same is true for an action for money had and received? Perhaps this is to be too simplistic; for even in non-contractual damages claims

there is in general a requirement that the plaintiff establish some kind

of duty relationship with the defendant and this is why, in non-

contractual debt claims, recourse was had to the idea of an implied contract. If the fiction of an implied contract is no longer satisfactory, what vinculum iuris can be established in its place between the solicitors

and the casino other than the tracing "interest"? This is a general

problem in the law of restitution in that there are a range of situations

where, money having been paid over say by mistake, it is difficult to

establish an obligatio between payee and payer.64 By importing

property notions into this kind of factual situation lawyers can

construct a relationship which has normative force. In other words

Lord Goff wanted to go beyond the idea that certain forms of action

have their own force;65 he wanted to establish a "right" to the debt

and as this, seemingly, could not be located in any structural

relationship between solicitors and casino as legal subjects, it had to

60 See, e.g., J.-L. Bergel, Theorie generale du droit (2nd ed., Paris 1989), pp. 264-272. 61 See, e.g., Sir Nicolas Browne-Wilkinson V.C. in Kingdom of Spain v. Christie, Manson & Woods

Ltd. [1986] 1 W.L.R. 1120, 1129. 62 The Code civil is said to have put an end to "the hesitations in the doctrine, the contradictions in

the caselaw of the parlements, the recourse to equity in order to make up for the shortcomings in legislation" (J.-L. Gazzaniga, Introduction historique au droit des obligations, Paris 1992, p. 183). Would not these apparent weaknesses be seen as strengths by the English judiciary? 63 The Aldora [1975] Q.B. 748, 751.

64 Cf. D. 44.7.5.3. 65 Cf. G. IV. 33.



534 The Cambridge Law Journal [19941

be located in the relationship between legal subject and legal object.

The question, however, is whether this recourse to a "quasi-property"

right is really any less of a fiction, or any more satisfactory, than the

old fiction of an implied contract. The civilian response to this problem is to focus on the benefit and

to create an obligation through the use of the principle of unjust

enrichmerlt. Unless the benefit can be justified in terms of a legally

recognised cause it cannot be retained. However the application of

this principle alone to the facts of Lipkin Corman would result in the

casino being under 1lo obligation to repay, since if one tries to measure

the benefit against any absence of cause it soon becomes evident that

the casino might well be entitled to the benefit.66 They were not,

admittedly, entitled to the money by virtue of a contract since gaming

contracts are "void" by statute; but the casino's activity itself was not

illegal and thus any profits were not wrongfully obtained.6' The fact is

that while the money was in the possession of the gambling club they

could pass good title should they make any payments and thus the

real question was whether they were under a legal duty to pay the

plaintiff solicitors a debt. Now what the House of Lords was doing in

this case was to treat debt as a claim analogous to one in detinue; the

club was liable to the solicitors much in the same way as the coach

company was liable to Mrs. Houghland in the law of tort. The

differences of course, is that in bailment the legal obJect is a res

corporalis while in debt it is a res incorporalis. All the same from an

historical position there is some justification in that the writ of debt

has the same pedigree as the writ of detinue68 and given that a claim

in debt has no relation whatsoever to the actual damage suffered by a

plaintifFs patrimony unless of course one constructs "damage" via

the notion of an ';expectation interest'69-there is no reason why

restitution lawyers should not accept that all debt claims, even those

in contract, are more proprietary than obligational. ls there really any

difference in form between Mrs. Carlill's claim against the Carbolic

Smoke Ball Company70 and Mrs. Houghland's claim for her suitcase?

66 Hox4ever the relationship between cause and benefit does not yet seem to have been fuily worked

out by the House of Lords: see, e.g., DimskaZSftipping Co. v. JTWFt1992] 2 A.C. 152.

67 If the action for money had and received had been treated as still being based on an implied

contract, then the money would nol havc been recoverable since the contract would havc been

void by statute: Sinefair v. BrougJxam [1914} A.C. 398. This surely would have been the jusl reslJlt:

for why should the casino be discriminated against simply on thc basis that Parliament has refused

to enforce gaming contracts? How can one say that casino profits are unjwst when the activity

itself is not illegal? Al1QWjNg property notions to enter the law of ob)igations via the law of

restitution is to emphasise dominium (or not, depending upon how one interprets the idea that

tracing is, well, whatever it is) at the expense of oblStio. Who allowed a partner to walk ofT with

bags full of cash lo the Playboy club? Why blame the Playboy club when one should be 1ooking

for professional incompetence? 68 Milsom op ct pp 262-26S 69 See, e.g*, Damon SA v. filapag-Lloyd[1985] 1 W.L.R. 43S.

7° CarlilJ v. Carboltc Smoke Ball Co. [1893] I Q.B. 256.




Mrs. Carlill was not, admittedly, claiming back her property, but it is

not unreal to see the contract as having given her as much right to the

value of the reward as Mrs. Houghland had to the value of her

suitcase.71 Or, to put it in the words of the civil law, the actions of

debt and detinue both express the idea of a ius ad rem or obligation

propter rem.12

The advantage of seeing these debt cases via the notion of a

property right (to a res incorporalis) rather than an obligational duty is that they help explain why the law of actions takes such an all-or-

nothing approach in some contract cases. Thus the consumer who

pleads non-performance rather than breach of contract might end up with free services73 or goods,74 while the provider of an unwanted

service might end up with more than if he had behaved reasonably.75 These situations are about strict liability entitlements and what stops them from being actual property cases in the strict sense is the Roman

conception of ownership as a relationship in an actual thing itself, in

a res corporalis. The moment one replaces the idea of two separate

legal relations, one between person and person (in personam) and one

between person and thing (in rem), with a single conception ofa right

consisting of a relationship between persona and res incorporalis the

whole property and obligation dichotomy begins to disappear.76

Owning and owing become a matter of viewpoint in that they appear and disappear depending upon whether the right-holder is looking towards the thing as an empirical reality or the thing as an abstract

entity. Mrs. Houghland has a right to her suitcase whether or not the

suitcase still exists, and if all property rights depended on the existence

of things then the law of intellectual property would have little

meaning. Moreover the moment one uses the term "right" one is in

effect using the language of property: for a right-holder is always

claiming a right to something and this implies that all rights need a

res.

III

Now the civil lawyer might well go some way in agreeing with this

analysis.77 However he or she might respond by saying that such an

analysis nevertheless fails to take account of the role of patrimony; to

71 And in English law, as in French law, contract can of itself act as a means of transferring rights in rem: Sale of Goods Act 1979, s. 18.

72 Ourliac & de Malafosse, op. cit., pp. 50-54. 73 See, e.g.. Rowlandv. Divall [1923] 2 K.B. 500. 74 See, e.g., Bolton v. Mahadeva [1972] 1 W.L.R. 1009. 75 See, e.g., White & Carter (Councils) Ltd. v. McGregor [1962] A.C. 413. 76 Cf Gray, op. cit. note 42 above, pp. 305-307. 77 See, e.g., S. Ginossar, Droit reel, propriete et creance (Paris 1960).




be the owner of a res is to have the res itself in one's patrimony, whi]e to be a creditor is simply to have a res incorporalis a chose in action- as an asset. But this is to reassert once again the distinction between res corporales and res incorporales. What must be appreciated is that a debt owed is itself a res (une chose) capable of being included in a creditor's patrimony and if all assets are seen as "rights" the dichotomy between res corporales and res incorporales again collapses. As Ginos- sar has observed, the remarkable thing in all this is that in order to understand the difference between owning (propriete) and owing (creance), it is necessary to combine them "or, rather, to supplement the notion of owing with that of owning".78 All this should serve as a warning to jurists. The construction of an axiomatic scheme of legal relations, rights or categories based upon a fundamental distinction between owning and owing is no longer viable as a logical model; and it is no longer viable not just because the nature of property itself has changed, rendering the old distinction between tangible and intangible things obsolete,79 but also because the Roman scheme as expressed by Gaius itself contained a logical flaw that is now proving to be the means of its own undoing. This flaw caused few problems while legal relations (iura) were viewed objectively and entitlements were expressed via a law of actions which distinguished claims against things from claims against people. With the development of the modern subjective right, however, the traditional objective epistemological scheme has been gradually replaced by one that started to see all entitlements as things to be vindicated;8° rights, like property, belonged to right-holders. Accordingly, although the notion of ownership itself remained a fundamental pillar of Modernist legal thought-indeed the Code civil re-adopted the Roman idea of a relationship with a chose corporelle8}-and although the codes continued to emphasise with varying degrees of rigidity the dichotomy between property and obligations, the scene was being set for a post-Modernist, or post- axiomatic, collapse of the Modernist certainties.82 The distinction between res corporales and res incorporales is proving as unrealistic to the modern word as it did to feudal society.83

Where does all this leave the civil lawyer? One should hesitate before claiming that the New Outch Code is a Post-Modernist text (even in the sense given to this term by Arnaud),84 but it is post-

78 ltid.. pp. 3S-36 79 W. Friedmann, Law in cl Changing Socierv (2nd ed, Harmondsworth 1972), pp. 93-118. See also

Gray, op. cit. note 42 above. 80 H.F. Jolowics, op. cit. note 28 above, p. 67. 81 Patault, Op. cl. note 31 above, pp. 219-220. 82 A.-J. Arnaud, PolJr une penseeJIlridEque europeenne (Paris 1991), pp. 197-202. 83 Patault, Op. cif. note 31 above, p. 248. R4 "When one talks of the 'modern' epoch it is to designate the period which extends from the end



Property Notions in the Law of Obligations 537 C.L.J.

axiomatic in the sense that it now openly incorporates analogy, doctrine and case law into its formal structure85 and the rigid distinction between res corporales and res incorporales has been partly subsumed by the notion of patrimonium and ius.86 More generally in the civil law one can say that it will probably not be long before the traditional categories and concepts yield to a droit economique in which the old certainties begin to face up to the new realities.87 Yet that said, there is no doubt that these conceptual changes are working very much within the Gaian tradition in the sense that it is not a matter of new concepts and institutions replacing the old; what is happening is a re- emphasis within the law of things. Instead of an institutional scheme that emphasised the ancient distinction between the material and non- material, there is now a move towards a conceptual structure that is founded almost entirely upon the non-material.88 Real people have been replaced by legal persons, real property by intellectual property, sovereignty over things by exploitation of assets and res corporales by interest and utilitas. The words- persona, res, patrimonium, ius, interest-remain the same however; for, as Patault observes, "in order to understand ownership yesterday, today, tomorrow, one must always come back to the fil conducteur given by Gaiuss'.89 But the substance of these words has been transformed by the reaction of the economic system to the.increasing abstraction of property ideas. The moment one can have a property right in a res incorporalis, it must follow that contract, originally a "satellite" institution to dominium,90 becomes part and parcel of the object of dominium itself. Contract, or at least the entitlement to the performance, transforms itself into a res and thus one can talk of contractual "rights".

No doubt the distinction between in personam and in rem (or perhaps, following the Gennan scholars, one should say in re) rights wilI remain at one level in the institutional and economic systems. After all, few banks would want to see the device of real security evaporating overnight into a mere personal right. Yet one can legitimately pose questions about the ability of traditional legal sciences to cope with the rising number of increasingly serious socia]

of the Middle Ages until the French Revolution. Historians talk next Of the 'contemporary period'; but legal and political philosophers and theorists have now started to talk confidently of post-modernism lo describe the time we are now entering, which suggests thal, with regard to intellectual thought at least, they think we are not yet fully out of the influence of modernist times": Arnaud, op. czt., p. 102.

85 See, e.g., Book 3 art. 326. 86 Book 3. However the distinction between res corporales and res incorporales is maintained (see

Book 3: art. 2) and there are separate books on rights in rem and in personam. B7 C A Jacquemin & G. Schrans, Le droit economique (3rd. ed., Paris 1982), pp. 9F124. 88 C Fnedmann. °p Cit., p- 97- 89 Patault, Op. Cit. note 31 above, p. 18. 40 O. Kahn-Freund, lntroduction to K. Renner, The Institutions of Private Law and Their Social

Functions (London 1949), p. 33.




and ecological problems thrown up by the exploitation (dominium) of property. ls widespread pollution, for example, to be dealt with as a problem of dominium or obligatio? What if a commercial corporation causes long-term pollution in the profitable exploitation of land: is this a matter of in rem or in personam relations between neighbours? If the latter, as Pothier once suggested,9' how is this to be conceptualised: is it a question of an obligation attaching to the legal personality of the corporation itself or does each and every shareholder who has profited from the exploitation also have a duty? In turn, who has the rights? The civilian view of dominium may well help protect those who have profited from the exploitation in that property relations give rise to no in personam obligations as such (save perhaps in respect of abuse of dominium).92 However an international pollution disaster might be all that it takes to test the viability of an axiomatic dichotomy between dominivm and obligatio. The problem is, in truth, one of mentalite: every time one tries to say that the relationship between persona and res is a two-way relationshithat it gives rise to duties as well as to rightsne is back into the world of the law of obligations. Duties cannot be owed to things, although one can have a right to a thing; duties can only be owed to people (or more precisely a persona) and this requires something more than a mere descriptive vinculum iuris since duties must have a normative dimension which is usually supplied by fault, contract or, following the French model,93 control. Ownership does not need to be justified in any normative sense since, once established, its existence supplies its own norrnativity reflected in the law of actions in the duty of a judge always to find in favour of an owner.94 The future, therefore, probably lies in the idea of a liability for things which, it would seem, is the only conceptual vehicle for moving from la propriete to la responsabilite. The ownership of a thing gives rise, in itself, to a duty in the law of obligations.

IV

Perhaps the more interesting question in the face of these conceptual reorientations concerns the future of common law. Where does all this leave the common lawyer who has never experienced an axiomatic stage of legal thought? It might be tempting to respond to this question by saying that "Anglo-American conceptions of property are closely in line with the sociological and popular meaning, whereas civilian concepts of property still labour under an artificial analytical division

91 Patault, Op. Cit. nole 31 above, p. 153. 92 Cy Patault, Op. cit. note 31 above, pp. 223-225. 93 Code civi! arl. 1384. 94 D. 6. I .9, 1 3.




inherited from Roman jurisprudence, and out of step with the reality of modern industrial society".95 Accordingly English law can be proud of its rational strength.96 It can be proud of its ability to move with

ease from rights in personam to remedies in rem and from negligence and conversion to bailment and contract. Yet such a response runs the

risk of failing to appreciate the delicate relationship between ars

judicandi and scientia iuris. It may be that the common law is less

logical in the axiomatic sense, but it is equally capable of deciding that

ownership trumps obligations. Thus "an owner of property is entitled

to be careless with it if he likes"97 and the polluter is isolated from

liability, at common law at any rate, unless a neighbour can establish

something more than dominium. Only fault or breach of contract will

involve the polluter in having to pay his neighbour for any damage

arising out ofthe control of property.98 Is not English law as conceptual as civil law in the way it envisages property and obligations relations?

In order to answer this question it might be useful to return to

Gaius. The strength of the Gaian scheme lies not so much in the

analytical categories and divisions of legal thought but in the system of legal relations flowing between the legal institutions ofpersonae, res

and actiones." These legal relations (dominium, ius, vinculum iuris,

obligatio) might be abstract notions, but the institutions themselves

remain very close to the facts of society; sociologists as well as lawyers can talk about people, things and courts. What Gaius and the Roman

jurists constructed between these "sociological" institutions were

connections capable of giving rise to normative relations (iura): the

vinculum iuris between persona and persona became an obligatio if the facts of the transaction or accident fell within certain categorised situations which would disclose a contractual actio or would indicate

for example the existence of culpa and damnum; and the relationship between persona and res gave rise to legal remedies either out of the

factual reality of control (possessio) or out of the fact that they were

things capable of forming part of a private patrimony (privatae sunt

quae singulorum hominum sunt).m Now this structure might look abstract and analytical if one merely focuses on the relations between

legal subjects; yet the Romans themselves never lost sight of the institution of the actio and so law was not just a matter of asserting rights but of analysing factual situations around the institutions

themselves. Thus even an owner had an absolute entitlement only

95 Friedmann, op. cit. note 79 above, p. 94.. 96 F.H. Lawson, The Rational Strength of English Law (London 1951). 97 Lord Fraser in Moorgate Mercantile Ltd. v. Twitchings [1977] A.C. 890, 925. 98 See, e.g., Esso Petroleum v. Southport Corporation [1956] A.C. 218; Cambridge Water Co.

Eastern Counties Leather P.l.c. [1994] 2 W.L.R. 53. 99 Omne autem ius quo utimur vel adpersonaspertinet vel ad res vel adactiones: G. 1.8. 100 G. II. 10-11.




because the judge in the actio in rem was under an obligation (offtcium

iudicis) to find in the owner's favour once dominium had been

established in the proceedings themselves.101 In other words, and to

use the words of a common lawyer, a "cause of action is simply a

factual situation the existence of which entitles one person to obtain

from the court a remedy against another person".102 What, then, gives a set of facts their normative force? The answer in Roman law is the

interrelationship ofpersonae, res and actiones together with any legal

relationships that can be constructed out of this "sociological" analysis which would act, either in themselves (for example ownership) or

together with notions such as damage, fault and (or) interest, as

structures capable of injecting into the facts a normative element. Is

the common law really any different?

Let us come back to the relationship between persona and res.

These institutions surely represent Mrs. Houghland and her suitcase

and the normative force of a relationship between them, whether it is

possession or (to use the words of the Sale of Goods Act) property

(proprietas), is to be felt in the actio (detinue) which allowed her to

recover the value of her res without having to prove fault. Exactly the

same analysis can be applied in Lipkin Gorman to the solicitors and to

the client account money in the casino's possession; the solicitors were

able to recover partly because of the normative force that attaches to

debt as a remedy (action) and a thing (chose). The point to be stressed

is that the formal normative relations between person and thing are as

active in the common law as they were in Roman law and are in the

modern codified systems, even if English law has definitions neither of

possession nor of ownership. Property structures are "sociological" in

the sense that they are constructed between people and things and

legal in that the law, as a rational scientia, injects into the structure a

normative force. This normative force can come directly from statute

where its basis is, in the end, located in imperium or it can come from

the relationship between persona and actio through the medium of

what might be called "quasi-normative" notions such as fault and

damage.103 Accordingly, before new copyright legislation formalised

the structure into a normative proposition,104 the relationship between

a performer and his or her live musical performance was capable in

itself of giving rise to a normative relationship via the remedy of an

injunction. "I am satisfied", said Waller L.J. in Ex parte Island Records, "that in equity there is jurisdiction for a court to grant an injunction to a person who claims that he suffered special damage to a property

D. 6.1.9, 13. Diplock LJ. in Letang\. Cooper [1965] 1 Q.B. 232, 242-243. P. Dubouchet, Semiotique juridique (Paris 1990), pp. 144-145. Copyright, Designsand Patents Act 1988, ss. 180, 182, 194.




interest" .m In this case the res was being created with the help of the

notions of an "interest" and of "damage" and once this had been

completed the res could normatively be related back to the persona since "interests" are incapable of existing independently of legal

subjects. If legal remedies are a matter of protecting "legitimate interests", and an "interest" is something that can be "owned", then

every time a "legitimate interest" is threatened a remedy should issue.

It has to be admitted that as a matter of precedent this property

approach in Island Records subsequently came in for criticism from

the House of Lords,106 but as an illustration ofthe relationship between

ars judicandi and scientia iuris the analysis retains much force and it

indicates how the nature of property is a more flexible institution in

English law than it is in say French law where article 544 of the Code

civil requires that property be something that can be enjoyed and

disposed of. This is not to say that French lawyers could not offer, in

the absence of specific copyright legislation, protection against illegal

recordings of live musical performances;107 the point to be made is

that when one talks of English property law being more "sociological" one is talking just as much about the functioning of legal institutions

and legal concepts as when one talks about law being scientific and

logical. The "sociological" label comes from the fact that a notion

such as an "interest" has a role outside of law as well as within it. It can function as a descriptive term and, when related to an actio, as the

basis for a "right." There are, it must be stressed, major differences between Roman

law and the common law. However these differences are in some

respects less important than those that separate the modern civilian

and the modern common lawyer.108 And although the Romans

operated a sharp distinction between property and obligations, they also recognised not only that res incorporales were forms of property but that the notion of a res incorporalis was closely interrelated with the law of obligations and law of actions. English lawyers have, so to

speak, taken this a stage further. They have produced a system where the property structures created by the institutions ofpersonae, res and actiones are capable of operating across legal categories with the result, for example, that a plaintiff seeking damages via a negligence claim in

personam might well resort to a property structure to inject some

normative force into what otherwise might be a weak argument.109 In

[1978] Ch. 122, 144-145, emphasis added. Lonrho Ltd. v. Shell Petroleum Co. Ltd. [1982] A.C. 173,187 per Lord Diplock; and see Copyright, Designs and Patents Act 1988, s. 194. The French lawyer might use the law of persons rather than the law of property: A. Seriaux, Les personnes (Paris 1992), pp. 66-70. P. Legrand, "Legal Traditions in Western Europe: The Limits of Rationality" (seminar paper delivered at the University of Trento, Italy, February 1993). See, e.g., F. v. Wirral MBC[\99\] Fam. 69.




other words English lawyers have used the property structure, together with the idea of a right which the property structure has spawned,"° as a reasoning device (ars judicandi). Civil lawyers have been much more formal with respect both to the notion of a nWht (le droit subyectiJ) and to the notion of property. However this formality reflects a scientia iuris which has its own "sociological" element in the respect it gives to tangible things while at the same time recognising that it is the notion of a res incorporalis that underpins the droit subjectif -a notion which, in turn, acts as an epistemological starting point for all modern legal analysis. Both the common law and civil law traditions are, then, locked into a reIationship between ars judicandi and scientia iuris. In the common law the point of emphasis is at the level of ars whereas in the civil law it is at the level of scientia and while this difference of level may well be responsible for two quite different mentalites it ought not to be allowed to eclipse the role of institutions in both traditions.

Of course there is little difficulty in identifying Mrs. Houghland's property. But what about a claim by a mother for the return of her children:'l' is this a property claim? The probiem here is that as far as the law is concerned, and despite the use of the possessive, children are legal subjects who have their own "interests" which can come before those of the parents;"2 one might be able to talk about rights in the sense of duty but not about property in the sense of ownership. Or what about Tony Bland's claim, or more precisely the claim of those acting on his behalf, that it was in his "best interests" that he be allowed to die?' 13 Is "best interests" here a property structure, something to be revindicated, or an aspect of the law of persons? A suitcase, of course, does not have its own "interests' and so there is little difficulty in saying that the bailor should have a claim in damages against a bailee simply on the basis of the interference with this property relationship."4 Yet in allowing bailors to succeed with such ease there is always the danger in a system that functions at the level of ars that such a property structure (ius) between owner (persona) and suitcase (res) might transcend the facts of the case in hand to be applied in areas where it can eclipse other, perhaps equally valid, structures. In Lipkin Gorman the relationship between solicitors and their chose in action ec]ipsed the casino's legitimate "interest" in a profit not illegally obtained from a customer. More serious is the use of property structures to eclipse constitutional relationships Ought

0 G. Samuel, "Epistemology, Propaganda and Roman Law: Some Reflections on the History of the Sub.1ective Right" (1989) 10 Joxrnal af Legal History 161.

XI F. v. Wirral MSC[1991] Fam. 69. 112 In re KD [1988] A.C. 806. 113 Airedale NSS Trust v. fifand [1993] 2 W.L.R. 316. 14 Mitchell v. Ealing LBC [19791 Q B l .



C.L.J. Property Notions in the Law oJ Obligations 543

government departments or commercial enterprises to be able to argue

that embarrassing secrets should not be made public on the basis that

publication would amount to an interference with a property right?

Does not the press have "rights" in such cases and, if so, are these

press rights to be balanced, also, against the "interests" of employees?l'5

Or take once again the Tony Bland tragedy. Ought this case to have

been approached using the same kind of notion, an "interest", that

Peter Birks proposes be used in the law of restitution? In the end the

question comes down to one of resources as the judges in the Bland

case, or some of them, recognised and so perhaps all law is simply a

matter of the distribution of "property". All the same, it is in problems

such as these that one can begin to see some scientific value in the

civilian distinctions between the law of persons and the law of

things and between public and private lawistinctions that reflect

differences between personality and wealth, between imperium and

dominium. English lawyers may distrust theories concerning rights,"6

theories concerning legal categories"7 or theories concerning any-

thing,"8 but they should not pretend that in working at the level of

casuistry they are immune to the kind of legal structures that underpin

the scientia iuris of the Civilian legal mind. However close English

legal thought remains to the facts, it still applies notions and concepts

to make sense of these facts. V

The immediate question is nevertheless whether English law should

develop new classification structures to reflect the differing meanings

of"property" it uses throughout private law. Some argue that new

categories like restitution will go far in making sense of property

structures such as tracing,X9 while others claim that lawyers should

abandon the old Gaian structure in favour of a scheme founded on

benefits, interests or the like.'20 Now all these arguments have much

to commend them and they all contribute to an understanding of legal

knowledge. Yet there is a tendency to assume that the normative

aspect of legal relations is closely bound up with the categories and

classification of legal rules. This is to misunderstand the nature of legal

reasoning both in Roman law and in the common law (if not in the

modern civil law). The strength of Gaius is to be found not so much

in his categories of law, but in his institutional structure and the

s See, e.g., XLtd. v. Morgan-Grampian Ltd [1991] 1 A.C. 1.

116 In re KD 119881 A.C. 806, 825 per Lord Oliver.

^l? Cassell & Co. Ltd v. Broome [19723 A.C. 1027, 1 1 14 per Lord Wilberforce.

118 Weir, op. ctt. note 7 above, at pp. 1616, 1646-1647.

^9 See Birks Op. Cit. notes 48 and 49 above.

See, e.g., S. Hedley, "Contract, Tort and Restitution; or, On Cutting the Legal System Down To

Size" ( 1988) 8 Legal Stwdies 137.




relations and notions that flow between people, things and actions.121

It is this structure that discloses whether a set of facts will give rise to

a remedy since it is a structure designed to make sense of facts.

Sometimes facts will gain their normative force from a relationship between persona and persona, especially if notions such as fault,

damage, agreement or risk can be used as quasi-normative focal

points. At other times, as Lipkin Gorman and Island Records illustrate, it is the relationship between persona and (or) actio and res that

provides the necessary normative dimension. In other words scientia

iuris and ars judicandi respond to different epistemological models.122

The judges, and perhaps academics, cannot always admit this difference

since the impression must be maintained that legal reasoning is not a

matter of "palm-tree justice" or "undirected empiricism";123 law, in an

age of science, must predict as well as explain.124 But, as the facts of

Houghland v. Low illustrate, there are often alternative institutional

structures that can be applied to a single set of facts.

To talk in terms of reforming the law at the level of legal classification is, then, to misunderstand the institutional aspect of legal

reasoning. Factual situations are not so much classified as constructed

from within using particular institutional structures. These structures

are neither reality, if one can ever use such a term, nor a science; they are models which permit the jurist to grasp and make sense of chaotic

social "reality". Such models, historically, are related to social reality via the institutions of persona and res125 and thus one can say of Mrs.

Houghland and her suitcase that they existed in the worlds of law and

sociology. However the law of property has moved on from its original institutional roots in tangible people and tangible things; it is now a

question of legal persons and res incorporales and these institutions

have a reality only in the institutional model itself. In other words the

ontological basis of law has changed with the result that the law of

property has become its own reality so to speak. All that lawyers can

do is to react. The practitioner will use the model to suit the best

interests of his or her client with little or no thought ofthe architectural

implications of any institutional argument; the legal academic will try

Some of these points are developed in Samuel & Rinkes, op. cit. note 22 above, pp. 231-266; G. Samuel, "Epistemology and Legal Institutions" [1991] International Journal for the Semiotics ofLaw 309. "The teacher has to master the contents of what is to be taught. This [involves] . . . a more general vision of the discipline to be taught, in terms of the organising principles, the areas of thought, the conceptual threads. It is a question of seeing the discipline not as a patchwork without unity, each element corresponding to a concept, but as an expressive mosaic made up of concepts each relating one to another": J.-P. Astolfi & M. Develay, La didactique des sciences (Paris 1989), p. 114. Birks [1991] L.M.C.L.Q. 473 at p. 745. C. Atias, Epistemologie du droit (Paris 1994), p. 107. See generally on this, D. Kelley, The Human Measure: Social Thought in the Western Legal Tradition (Harvard 1990).



C.L.J. Property Notions in the Law °f Obligations 545

to construct a grand scheme which might well come apart with the next court decision. Only the Gaian model of persons, things and actions will survive since it is a model that can react to (if not construct) the facts of litigation. Where does this leave law reformers? The rule-theorists and the categorisers will no doubt live in hope since, understandably, they like to take the credit for the construction of a law of contract and a law of restitution; and jurists from codified countries will no doubt continue to believes perhaps not so unreason ably, that they have mastered the universe through the use of symmetry. But are contract and restitution real norrnative categorses or are they just pigeonholes for collecting cases and statutes? Is the difference between ownership and contract to be found in the symmetry of rights or in the ideology of potestas? The answer to these questions will depend in the end upon whether one adheres to a rule-based paradign leading to a rule-based model or a conceptual, or some other, paradigm leading to, say, an institutional model.'26 Perhaps, given the failure in artificial intelligence research of the rule-based paradigm,l27 one can only return to Mrs. Houghland to ask where the Gaian model leaves people like her. The law of property-or was it the law of obligations?. allowed her to recover her suatcase without the burden of having to prove fault and thatX indeed, was a real social benefit as any medical negligence victim who has tried to secure compensation through the courts will probably bear witness. But the model that protected Mrs. Houghland also protected the property and the reputation and in England reputation is as well, if not better, protected than Mrs Houghlarldis suitcasef a man with a taste for plundering the "property"-are pension "rights" property rights9f others.'28 And so Mrs. Houghland could also be grateful that she did not have to experience retirement as a Robert Maxwell pensioner. Had she been, it is most unlikely that she could have afforded a trip to Jersey. As Proudhon (not the jurist from Dijon) did not quite say, le vol, c'est la propriete. But as the Romanist might respond: theft in Roman law was part of the law of obligations.

26 Cz R Susskind, Expert Systems in bw (Oxford 1987), pp. 15$155. 27 H. Dreyfus, What Computers Still Can't Do (Cambridge Mass., 1992). 28 T. Bower, The Cuardian, 9 December 1992.



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Property Notions in the Law of Obligations