All or Nothing?

The aim of this Essay is very simple: it is to demonstrate how quickly and how far the common law of England has departed from its traditional attitude, evident throughout the law of obligations, that while it may be very desirable for the parties to settle their dispute by themselves, the courts would not ordain a compromise, would not “split the difference,” but would give judgment in toto for one party or the other. The aim is to document the change, not to speculate on possible justifications or explanations.
Nevertheless, it may be suggested, as to justification for the change, that the traditional attitude, sensible enough in claims for property, which either belongs to the claimant or does not, may be thought less appropriate where the claim is for money, so easily divisible whether the claim is for the sum promised or paid in advance or for damages for harm caused. After all, the merits are not always all on one side or the other, though one must be aware of the tension between fairness and predictability of outcome. As to explanation, it may be that as long as the quantum of recovery fell within the province of a civil jury composed of laymen, who can usually see a matter in the round, the judges could rely on it to reach a fair result; now that the civil jury is virtually extinct in England, the judges perhaps feel themselves bound or entitled to take over its role in that respect. These questions are left to the reader, for in this Essay they are barely adumbrated by the writer.
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Contracts in Rome and England

I am not about to enter here into a critical examination of the Roman contracts: it would be a work of deadly ennui. If we were to imagine all possible defects-in their division, in their nomenclature-it would be difficult to exaggerate them. The idea of reciprocal promises, of mutual dispositions, so familiar to all the world, finds itself so obscured in this mischievous and absurd system of jurisprudence, that the lawyers, who have not ceased to explain it, always feel the necessity of new explanations. These are the words of that unrealistic busybody, Jeremy Bentham. Like him, if for very different reasons, we are not going to enter into a critical examination of the Roman contracts, but we do propose to make some observations about them in relation to the common law of England. We are not, any more than Bentham, going to be scholarly; neither, unlike him, have we a unitary view of what is, or what is not desirable.

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