A Historical Introduction to the Law of

In this book David Ibbetson exposes the historical layers beneath the modern rules and principles of contract, tort, and unjust enrichment. Small-scale changes caused by lawyers successfully exploiting procedural advantages are juxtaposed with changes caused by friction along the boundaries of these principal legal categories; fossilized remnants of old doctrines jostle with newer ideas in a state of half-consistent tension; and loose-knit rules of equity developed in the Chancery infiltrate themselves into more tightly controlled Common law structures.

David Ibbetson is a lecturer in law at Oxford University

Table of Cases

xi

Abbreviations

xli

Table of Regnal Years

xliii

Prologue: The Prehistory of the English Law of Obligations

1

(1)

Pervasive Ideas

1

(5)

Penalties and Entitlements

1

(1)

Wrongs: Dishonour and Loss

2

(1)

The Economy of Exchange

3

(1)

Oaths: Threats and Promises

4

(1)

Contracts and Personal Bonds

4

(2)

Obligations in Roman Law

6

(5)

Delict

6

(1)

Contract

7

(3)

Quasi-Contract

10

(1)

Quasi-Delict

10

(1)

Part One. Form and Substance in Medieval Law

11

(84)

Structural Foundations

13

(11)

Liability for Wrongdoing: Damage and Dishonour

13

(4)

Glanvill and the Law of Debt

17

(4)

Covenant and a Law of Contract

21

(3)

Unity and Fragmentation of the Medieval Law of Contract

24

(15)

The Formalization of Covenant

24

(4)

Covenant and the Conditional Bond

28

(2)

The Fragmentation of Remedies for Informal Contracts

30

(9)

Trespass, Trespass on the Case, and the Medieval Law of Tort

39

(18)

The Core of Trespass: Forcible Wrongdoing

39

(4)

Contractual Mis-performance and Non-Forcible Wrongs

43

(5)

The Origins of Trespass on the Case

48

(9)

The Substantive Law of Torts

57

(14)

Strict Liability and the Role of Fault

58

(5)

The Scope of Trespassory Liability

63

(8)

The Substantive Law of Contract

71

(24)

Voluntariness, Agreement, and the Formation of Contracts

71

(5)

The Boundaries of Contract

76

(11)

Privity

76

(4)

Reciprocity

80

(3)

Contractual Terms

83

(4)

Expectations, Entitlements, and Liability for Breach of Contract

87

(8)

Part Two. The Triumph of Trespass on the Case

95

(58)

Tort, Property, and Reputation: The Expansion of the Action on the Case

97

(29)

Nuisance

98

(9)

Trover and Conversion

107

(5)

Tort and Reputation: Defamation

112

(14)

The Rise of the Action of Assumpsit

126

(27)

Trespass on the Case and Contractual Liability

126

(4)

Contract and Tort: The Action of Assumpsit

130

(5)

Assumpsit and the Theory of Contract

135

(12)

Promise and Agreement

135

(5)

Privity of Contract

140

(1)

Contracts, Promises, and the Doctrine of Consideration

141

(4)

Assumpsit and Contractual Intention

145

(2)

The Formal Structure of Contractual Litigation

147

(6)

Part Three. The Modern Law of Tort and Contract

153

(110)

Trespass, Case, and the Moral Basis of Liability

155

(14)

Trespass and Case: The Formal Division

155

(9)

The Crystallization of Negligence

164

(5)

The Law of Torts in the Nineteenth Century: The Rise of the Tort of Negligence

169

(19)

The Tort of Negligence

169

(9)

The Duty of Care

170

(4)

Breach of Duty

174

(1)

Remoteness of Damage

175

(2)

Defences

177

(1)

The Fragmentation of the Law of Tort

178

(10)

Duties of Care and the Fragmentation of the Tort of Negligence

178

(3)

Vicarious Liability and Non-Personal Fault

181

(3)

Tortious Liability without Negligence

184

(4)

The Law of Torts in the Twentieth Century: Expansion and Collapse of the Tort of Negligence

188

(14)

The Unity of the Tort of Negligence

188

(11)

Generalization of the Duty of Care

188

(7)

Reintegration of the Elements of Negligence

195

(1)

Moral Wrongdoing and Fault

196

(3)

Negligence and its Satellites

199

(3)

Foundations of the Modern Law of Contract

202

(18)

The Model of Contract

202

(13)

Agreement and Reciprocity

203

(1)

Mercantile Documents

204

(2)

The Court of Chancery and the Trust

206

(2)

Vitiating Factors

208

(3)

Public Policy

211

(2)

Damages and Penalties

213

(2)

The Theory of Contract

215

(5)

Social Contract Theories: Thomas Hobbes

215

(2)

Natural-Law Theories: Samuel Pufendorf

217

(3)

The Rise of the Will Theory

220

(25)

The Will Theory and the Classical Model of Contract

221

(15)

The Centrality of Agreement

221

(1)

Offer and Acceptance

222

(1)

Conditions, Warranties, and the Terms of the Contract

223

(2)

Mistake

225

(4)

Damages

229

(3)

Voluntariness and Contractual Intention

232

(1)

Intention to Create Legal Relations

233

(1)

Fraud and Duress

234

(2)

The Will Theory and the Model of Exchange

236

(9)

Consideration

236

(5)

Privity of Contract

241

(4)

The Decline of the Will Theory: Legal Regulation and Contractual Fairness

245

(18)

Internal Weakness of the Will Theory

245

(3)

Undercutting the Will of the Parties

248

(15)

Public Policy and Illegality

249

(2)

Unconscionability, Fairness, and the Regulation of Contractual Relationships

251

(1)

Procedural Unconscionability

252

(3)

Substantive Unconscionability

255

(3)

Unconscionability in Enforcement

258

(5)

Part Four. Unjust Enrichment

263

(40)

Unjust Enrichment

264

(30)

Unjust Enrichment before Lord Mansfield

265

(11)

The Medieval Background: Prehistory of a Category

265

(4)

The Action of Assumpsit

269

(4)

The Courts of Equity

273

(3)

Implied Trusts and Implied Contracts

276

(8)

Quasi-Contracts and Implied Contracts

277

(4)

Implied, Resulting, and Constructive Trusts

281

(3)

Quasi-Contract, Restitution, and Unjust Enrichment

284

(10)

Legal Change and Legal Continuity

294

(9)

Index

303

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A Historical Introduction to the Law of Obligations

Summary

Author Biography

Table of Contents

Supplemental Materials