Quasi-Contract

2019 ◽  
pp. 386-402
Author(s):  
John Baker
Keyword(s):  
General Principle ◽  
Common Law ◽  
History Of ◽  
The Common ◽  
The Law

This chapter traces the history of what used to be called quasi-contract but is now part of the law of restitution. It was principally concerned with the receipt of money which belonged in justice to someone else. The earliest relevant action was account, at first limited to agents and then extended to all receivers of money; this was an impracticable action and went into disuse. Actions on the case came to the rescue, particularly the action for money had and received (a species of indebitatus assumpsit). The latter action was used not only in traditional cases of accountability but also where money was received by mistake or compulsion, where income from property was taken by an interloper, or where a party to a failed contract sought rescission. Much of the history is hidden from view by fictions, but Lord Mansfield declared a general principle based on the equity of the common law.

scholarly journals Law, Language and the Printing Press in the Reign of Charles I: Explaining the Printing of the Common Law in English

2019 ◽  
Vol 38 (2) ◽  
pp. 339-371
Author(s):  
Ian Williams
Keyword(s):  
Common Law ◽  
Printing Press ◽  
Legal Knowledge ◽  
Charles I ◽  
Professional Control ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Long Term Trend

The printing press had the potential to break the common lawyers' monopoly of legal knowledge. Early-modern England witnessed debates about the desirability of wider dissemination of legal learning. Previous scholarship has identified the long-term trend to increased printing of the law in English, focusing on ideological debates between lawyers and other key actors. Only selected texts and types of material were made available to the wider public before the 1620s. From the later 1620s a wider range of material which had hitherto existed only in manuscript was printed in English. Knowledge of the common law became more commonly available. This article identifies this crucial moment and explains the change. Rather than the ideological questions which are discussed in the existing literature, more mundane causes are identified for the legal profession's reduced control over the transmission of legal knowledge: a shift to the use of English by lawyers themselves, and a loss of professional control over manuscripts. The paper therefore demonstrates an important methodological point: understanding and assessing the history of legal printing requires engagement with older methods of transmitting the law.

Priests of the Law

2019 ◽  
Author(s):  
Thomas J. McSweeney
Keyword(s):  
Common Law ◽  
Roman Law ◽  
Full Time ◽  
Legal Professionals ◽  
The Status ◽  
Royal Courts ◽  
History Of ◽  
The Common ◽  
The Law ◽  
New Interpretation

Priests of the Law tells the story of the first people in the history of the common law to think of themselves as legal professionals: the group of justices who wrote the celebrated treatise known as Bracton. It offers a new interpretation of Bracton and its authors. Bracton was not so much an attempt to explain or reform the early common law as it was an attempt to establish the status and authority of the king’s justices. The justices who wrote it were some of the first people to work full-time in England’s royal courts, at a time when they had no obvious model for the legal professional. They found one in an unexpected place: the Roman-law tradition that was sweeping across Europe in the thirteenth century. They modeled themselves on the jurists of Roman law who were teaching in Italy and France. In Bracton and other texts they produced, the justices of the royal courts worked hard to establish that the nascent common-law tradition was just one constituent part of the Roman-law tradition. Through their writing, this small group of people, working in the courts of an island realm, imagined themselves to be part of a broader European legal culture. They made the case that they were not merely servants of the king. They were priests of the law.

Blackstone

2018 ◽  
Author(s):  
John V. Orth
Keyword(s):  
Significant Role ◽  
Common Law ◽  
Legal Education ◽  
First Century ◽  
Legal Development ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The University ◽  
Law Professors

This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.

Status: Problems of Definition and Use

1984 ◽  
Vol 43 (2) ◽  
pp. 361-376 ◽  
Author(s):  
Geoffrey MacCormack
Keyword(s):  
Social Theory ◽  
Common Law ◽  
Legal Development ◽  
Frequent Use ◽  
Ancient Law ◽  
Tribal Societies ◽  
History Of ◽  
The Common ◽  
The Law

Sir Henry Maine's Ancient Law, first published in 1861, postulated legal development in terms of an evolution from status to contract. Since that time both lawyers and anthropologists have made frequent use of the notion of status in their characterisation of law or society. Although status is a concept well known in social theory whose exponents, independently of Maine, have worked out its content and application, much that has been written about status in a legal or anthropological context owes its inspiration to him. Maine's status to contract thesis has proved of interest both to lawyers studying the history of the common law or modern developments in the law of contract and to anthropologists studying social and legal phenomena in simple or tribal societies.

The Law Merchant and the Common Law Before 1700

1979 ◽  
Vol 38 (2) ◽  
pp. 295-322 ◽  
Author(s):  
J. H. Baker
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Roman Law ◽  
Commercial Law ◽  
Legal Doctrine ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Law Merchant ◽  
Ius Gentium

In 1845 a master of English commercial law wrote that there was “no part of the history of English law more obscure than that connected with the maxim that the law merchant is part of the law of the land.” Since then there have been detailed studies of the medieval law merchant and of the later development of English mercantile law, but the precise status of the law merchant in England and the nature of the process by which it supposedly became fused with the common law remain as obscure as they were in 1845. The obscurity begins with the very concept of the “law merchant,” which has been differently understood by different writers and continues to be used in widely divergent senses. Some have regarded it as a distinct and independent system of legal doctrine, akin in status to Civil or Canon law, and perhaps derived from Roman law. Others have supposed it to be a particular aspect of natural law, or the universal ius gentium, and as such akin to international law.

Conclusion

2019 ◽  
pp. 240-246
Author(s):  
Thomas J. McSweeney
Keyword(s):  
Thirteenth Century ◽  
Canon Law ◽  
Common Law ◽  
Textual Production ◽  
Legal Literature ◽  
Royal Courts ◽  
History Of ◽  
The Common ◽  
The Law

The culture of textual production that these justices tried to create did not survive the thirteenth century. In the second half of the century, English legal literature became more insular in its outlook. But Bracton and the plea roll collections represent an important moment in the history of the common law, when people were reflecting on what law is and how it should be practiced. Through Bracton we can catch a glimpse of people who were thinking about what it meant to administer the law of the king’s courts, in a time before the common law was the common law. In these texts, we see the justices of the royal courts turning to Roman and canon law for inspiration.

Introduction

2019 ◽  
pp. 1-32
Author(s):  
Thomas J. McSweeney
Keyword(s):  
Thirteenth Century ◽  
Canon Law ◽  
Common Law ◽  
Early History ◽  
First Century ◽  
Central Question ◽  
History Of ◽  
The Common ◽  
The Law

A central question in the early history of the common law is how much influence Roman and canon law exerted over the common law in its first century. The debates over Roman- and canon-law influence have largely stalled, however. This chapter introduces a new way forward in those debates. Most scholars who have looked for Roman- and canon-law influence on the common law have looked for similarities in particular rules and have argued that common lawyers adopted those rules from Roman or canon law. Priests of the Law argues that we are more likely to find borrowings in the context of more fundamental questions. The early thirteenth century was a time before the common law was the common law. There was debate over its nature and who should control it. In their attempts to answer these questions, the authors of Bracton turned to Roman and canon law.

scholarly journals THE COMPARATIVE LEGAL HISTORY OF LIMITATION AND PRESCRIPTION

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Eltjo Schrage
Keyword(s):  
Legal History ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Legal Systems ◽  
Oliver Wendell Holmes ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The One

Within both the civil law and the common law (as well as in mixed legal systems), there are means of acquiring and losing rights, or of freeing ourselves from obligations with the passage of time. The reason for this is at least twofold: on the one hand, for a claimant, a dispossessed owner or a creditor, limitation and prescription provide stimuli for bringing the action; on the other, this sanction upon the negligence of the claimant implies in many cases a windfall for the defendant. If a creditor is negligent in protecting his assets, the law at a certain stage no longer protects him or her. As Oliver Wendell Holmes, Jr. said aptly some 100 years ago: “Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example”.

Precedents

1943 ◽  
Vol 8 (2) ◽  
pp. 118-145 ◽  
Author(s):  
Lord Wright
Keyword(s):  
Common Law ◽  
The Other ◽  
Brute Force ◽  
University Of Toronto ◽  
Free Spirit ◽  
History Of ◽  
English Speaking ◽  
The Common ◽  
The Law ◽  
Do So

It may seem odd at a crisis like this in the history of the empire and of mankind to be thinking and writing of academic questions of law, but the Editor has asked me to contribute an article to the University of Toronto Law Journal as a token of the sympathy and fellow-feeling of lawyers on both sides of the Atlantic. I am glad to be able to comply with his request and I do so also as a token of appreciation of the noble efforts that Canada is making for the cause which is so dear to the hearts of all of us. What Canada is doing is also being done by the other sister nations of the empire—the great Dominions—the colonies and India. All are united not by material or formal bonds, but by ties of kindred and by a common devotion to the cause of the free spirit and dignity of man, of the supremacy of law over tyranny, treachery, and brute force. The common law which binds together the English-speaking countries has been well called the law of the free peoples. We are confident that the forces of evil are ephemeral compared with that law. We can without impropriety forget for a brief space the pressing evils and dwell a little on that which will survive them, the common law.

Natural Law and Common Law

2001 ◽  
Vol 5 (1) ◽  
pp. 4-20 ◽  
Author(s):  
D J Ibbetson
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Company Law ◽  
Practical Significance ◽  
Law Of Nature ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Law Reports ◽  
Lost Opportunity

If you scan through the law reports ofthe last century or so, you will come across a sprinkling of references to Natural Law, commonly in conjunction with some such phrase as “manifest nonsense”.1 Introductory books dealing with the sources of law hardly place it in the forefront of their treatment, to say the least; and anyone writing a practitioners' manual on some practically useful area of law who began with a chapter on Natural Law would be thought to have taken leave of his senses. Go back two or three hundred years or so and the picture looks very different. References to the law of nature abound in the reports of the seventeenth and eighteenth centuries; institutional writers dealing with the Common Law will regularly list Natural Law as one of its principal sources, and when Stewart Kyd wrote the first English book on what we would now call company law2 the obvious starting pointfor his first chapter was the work of the Natural Lawyers of the previous century. England, like everywhere else in Europe, had been caught up in a fervour of Natural Law thinking. Legal historians, of course, are well aware of this, but commonly portray it in their books as part of the background against which the Common Law was worked out, rather than as an integral part ofthe story of English law's development.3 This downplaying of the practical significance of Natural Law represents something of a lost opportunity, not merely because it can give a frame of reference within which some sense can be made ofthe reorientation of English law in the eighteenth century, but also because it provides an important point ofcontact between the all-too-insular history ofEnglish law and the apparently more homogeneous legal history of the rest of Europe.

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