D. J. IBBETSON
- Published in print:
- 2001
- Published Online:
- February 2010
- ISBN:
- 9780198764113
- eISBN:
- 9780191709852
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198764113.003.0016
- Subject:
- Law, Law of Obligations, Legal History
This chapter argues that legal change occurs by filling in gaps between the rules in the way that seems the most convenient or most just at the time; through twisting rules, or rediscovering old ...
More
This chapter argues that legal change occurs by filling in gaps between the rules in the way that seems the most convenient or most just at the time; through twisting rules, or rediscovering old ones; through reformulating claims into a different conceptual category; through intervening new rules that get tacked onto existing ones; through injecting shifting ideas of fairness or justice; and through adopting wholesale procrustean theoretical frameworks into which existing law can be squeezed. Whatever changes occurred at the surface of law, and whatever accretions have been incorporated into its fabric, at a deep level the structure of the Common law of obligations remained slow-moving.Less
This chapter argues that legal change occurs by filling in gaps between the rules in the way that seems the most convenient or most just at the time; through twisting rules, or rediscovering old ones; through reformulating claims into a different conceptual category; through intervening new rules that get tacked onto existing ones; through injecting shifting ideas of fairness or justice; and through adopting wholesale procrustean theoretical frameworks into which existing law can be squeezed. Whatever changes occurred at the surface of law, and whatever accretions have been incorporated into its fabric, at a deep level the structure of the Common law of obligations remained slow-moving.
D. J. IBBETSON
- Published in print:
- 2001
- Published Online:
- February 2010
- ISBN:
- 9780198764113
- eISBN:
- 9780191709852
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198764113.003.0001
- Subject:
- Law, Law of Obligations, Legal History
The Common law of obligations grew out of the intermingling of native ideas and sophisticated Roman learning. The friction between them was a prime force for legal change, and has remained so right ...
More
The Common law of obligations grew out of the intermingling of native ideas and sophisticated Roman learning. The friction between them was a prime force for legal change, and has remained so right up to the present. This chapter identifies these basic building blocks. Topics discussed include prevailing ideas about the legal system in medieval Europe and obligations in Roman law.Less
The Common law of obligations grew out of the intermingling of native ideas and sophisticated Roman learning. The friction between them was a prime force for legal change, and has remained so right up to the present. This chapter identifies these basic building blocks. Topics discussed include prevailing ideas about the legal system in medieval Europe and obligations in Roman law.
D. J. IBBETSON
- Published in print:
- 2001
- Published Online:
- February 2010
- ISBN:
- 9780198764113
- eISBN:
- 9780191709852
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198764113.003.0003
- Subject:
- Law, Law of Obligations, Legal History
This chapter shows that with the emergence of the action of covenant as a specifically and exclusively contractual remedy, set the stage for the Common law of obligations to align itself with Roman ...
More
This chapter shows that with the emergence of the action of covenant as a specifically and exclusively contractual remedy, set the stage for the Common law of obligations to align itself with Roman law. If events had been allowed to run their course, trespass would have become the equivalent of the Romans' delictal ability and covenant the equivalent of their contract, leaving entitlement-based action of debt-retinue to cover the proprietary ground of Romans' vindication. That this did not occur resulted from a tiny procedural tightening in the rules of proof applicable to the action of covenant but not to trespass or debt, as a result of which it became less attractive to plaintiffs.Less
This chapter shows that with the emergence of the action of covenant as a specifically and exclusively contractual remedy, set the stage for the Common law of obligations to align itself with Roman law. If events had been allowed to run their course, trespass would have become the equivalent of the Romans' delictal ability and covenant the equivalent of their contract, leaving entitlement-based action of debt-retinue to cover the proprietary ground of Romans' vindication. That this did not occur resulted from a tiny procedural tightening in the rules of proof applicable to the action of covenant but not to trespass or debt, as a result of which it became less attractive to plaintiffs.
