chapter  4
Nature of an obligation. A further difficulty with regard to an English law of obligations is that common lawyers have never worked with any notion of an obligation as a general legal bond (vinculum iuris). Certainly, they developed a general contractual duty (obligation) based on skill and care (The Moorcock, p 512; Supply of Goods and Services Act 1982, s 13) and it could be said that they even extended this general duty to non-contractual situations in most cases of physical injury (Donoghue v Stevenson, p 65) and some cases of pure economic loss when the relationship was close to contract (Hedley Byrne and Co v Heller, p 470; White v Jones, p 702). But, outside of negligence, it is almost impossible to conceive of any general pre-existing obligation, since strict liability is very much an exception, save perhaps in the area of supply of goods (Frost v Aylesbury Dairy, p 47). Strict liability is governed by discrete causes of action or statutes. Indeed, it has been specifically stated that the tort of trespass to the person cannot be envisaged in terms of a pre-existing duty (Stubbings v Webb [1993] AC 498, p 508) and there is certainly no general obligational liability in respect either of individual acts or of damage done by things under the control of another (Read v J Lyons and Co, p 662). One problem with this lack of any obligational principle outside of negligence is that strict liability causes of action are being re-interpreted in terms of fault (Cambridge Water Co v Eastern Leather, p 665) and this rounding down towards negligence in the common law is probably against the general flow of obligational liability in continental legal thought (see, for example, Brasserie du Pêcheur v Germany [1996] QB 404; Zweigert and Kötz, An Introduction to Comparative Law, 3rd edn, 1998, OUP, p 684). 5 Methodology. The idea of a vinculum iuris is, then, not easy to find in the common law. Now the absence of any abstract notion of a vinculum iuris is due not just to the lack of a Roman legal scholarship tradition in English legal history: it also results from a methodological approach which is somewhat different from that to be found on the continent. The styles of legal reasoning in the common law and in the civil law are, for some, evidence of contrasting mentalities which, in turn, reflect quite different understandings of what it is to have legal knowledge (Legrand (1996) 45 ICLQ 52). This view is not shared by all comparatists (see, for example, Bell (1995) 48 CLP 63). However, for the obligations lawyer there is, arguably, sufficient difference of style to raise a serious question about transplanting continental ideas about obligations on to the common law of civil liability. English lawyers simply do not reason at the abstract level of the codes where form and symmetry help shape the institutional structures. Indeed, for the English lawyer, arguments based upon formal consistency are apt to mislead (Read v J Lyons and Co [1947] AC 156, p 175, above, p 662) and thus, legal reasoning is geared towards the search for the pragmatic solution. It is a question of proceeding one step at a time (Miliangos v George Frank, p 10) via analogy and metaphor rather than
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