chapter
parts. The world of English law is not the world of German law, and the remedies approach to problem solving has its own strengths. The chapter on reasoning and method (Chapter 2) ought to show that ideas of axiomatic precision and logical rationality belong to legal history; scientia iuris and ars judicandi are now two separate processes, each with their own epistemological (theory of knowledge) standpoint. One great strength of approaching unjust enrichment through a law of remedies is that a law of actions provides great flexibility when it comes to analysing and categorising the facts. Thus, there is nothing wrong with the idea that tracing and rescission in equity should themselves act as focal points for their own particular rules. Of course, there are drawbacks to a form of liability approach, as the Esso case perhaps illustrates (above, p 216). Yet Denning LJ had little difficulty in this case in finding the just decision, indeed he used the old forms of liability to give expression to underlying legal rights (see above, p 613, note 1). The problem with the case was a House of Lords insensitive to its own role and the role of judges in the face of facts. Is not a law of remedies more sensitive than a law of axiomatic principles to the nuances of benefit in a society dedicated to the pursuit of profit? 11 This is not to say that one abandons a category of restitutionary rights any more than one abandons the category of tort; they both are useful for contrasting non-contractual obligations with contractual. But just as tort (and, in truth, contract) defies theory because it contains a range of cases which have quite different objectives (for example, the protection of constitutional rights as well as loss spreading), so restitution will always be a category with little theoretical cohesion. Indeed, one need only look at the case of Dimskal Shipping Co v ITWF [1992] 2 AC 152 to see what damage restitution lawyers have done with their ill-thought out theories of economic duress in a capitalist society. A traditional equity lawyer with a sensitive feel to the problems of industrial relations would never have allowed the remedy of rescission to be used in such facts. The law of obligations is about solving problems, admittedly with an eye to the future, and thus the emphasis needs to be on a legal reasoning which can handle social, political and economic complexity within its own model of concepts and relations. The problem with many restitution writers is that they think that their duty is to overcome complexity. Happily, practising common lawyers seem, on the whole, to have known better. Do we need a law of restitution based on rather meaningless abstract propositions? Are different species of debt claims which make various factual distinctions such a bad thing? LAW OF OBLIGATIONS: FINAL OBSERVATIONS
This collection of materials will not have provided much more than an introduction to the law of obligations and the law of remedies. Hopefully,
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