ABSTRACT
The previous chapters have, on the whole, attempted to examine private law from the position of – to use Roman terminology – the law of actions. For, one starting point of legal thinking, owing to the historical legacy of the forms of action (Chapter 3 § 4), has been the institution of the remedy. Can the claimant obtain an injunction to stop the defendants’ cricket balls from landing in the claimant’s garden? Can the claimant obtain the cost of a new swimming pool from a defendant contractor who has failed to produce the product specifically requested by the claimant? Nevertheless, there has since the abolition of the forms of action (if not before) been another aspect to English law. Actions cannot support themselves but need to be founded upon a cause. And once it is appreciated that the role of actions was simply indirectly to give expression to these causes the easier it becomes to see that it is the substantive foundation of the action and not its form that makes up the object of legal knowledge. Obligatio mater actionis said the medieval Roman lawyers (obligations are the mother of actions);1 and the maternal categories that acted as the basis for these obligations were, by Justinian’s time, the categories of contract, quasi-contract, delict and quasi-delict.2 These categories, or most of them, will act as the framework for the second half of this book.
