Date: Thu, 13 Dec 2007 14:10

From: Lionel Smith

Subject: Obligations in the common law

On 12/12/07 18:03, "Chaim Saiman" wrote:

How is it (and since when) do common lawyers know what the "law of obligations" is? My guess is that 30 years ago common lawyers would not have used this term.

Like Tariq, I am not so sure. In the US, as Chaim's own work shows, many academic lawyers are not even really interested in US law any more, so it is hardly surprising that they are not interested in anyone else's law. But that is not the universal approach. In what other university discipline would one consider oneself to be well-versed if one did not have some familiarity with what was happening in other countries?

Common lawyers possessed of some level of legal culture beyond their own system have always been familiar with the idea of a law of obligations as the great counterpart to the law of property. Let us name, in the US, Joseph Story, who seems to have given the common law of private international law its enduring legacy of civilian categories, also mentioned by Tariq; James Barr Ames, who knew far more than he ever wrote, including about the civilian tradition; Karl Llewellyn, unwilling midwife of the legal realism that has so affected US academic legal culture; Austin Scott, John Dawson, George Palmer, John Langbein, Andrew Kull, James Gordley ... I see a fairly substantial index heading for "Obligation" in the Restatement of Restitution (1937), and I see the word in Tentative Drafts of the Restatement (3d) too. Llewellyn was the principal drafter of UCC Article 9, and the UCC has always defined a security interest (a critical concept in Article 9, but in other articles as well, which is why it is defined in §1-201(35)) to be an interest that secures payment or performance of an obligation. Any US lawyer who knows the UCC must know something of the law of obligations ...

Lionel

--
"The Judges cannot be required to write their judgments; that must be left to their own discretion."

Lord St. Leonards, submission to a Committee of the Bar inquiring into the system of law reporting, 12 February 1864; quoted in W.T.S. Daniel, The History and Origin of the Law Reports (London: W. Clowes and Sons Ltd., 1884) at 102.

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