Book Review

This book is a valuable addition to the scholarship on this subject. Ibbetson analyzes the development of tort and contract law from the medieval era to the present. The book is divided into four parts. Part One, "Form and Substance in Medieval Law," treating the twelfth through fifteenth centuries, discusses the "structural foundations" of liability for wrongdoing, the "unity and fragmentation" of the medieval contract law, "trespass, trespass on the case and the medieval tort law, the substantive tort law, and the substantive law of contract." Part Two, "The Triumph of Trespass on the Case" covers the sixteenth through the seventeenth centuries with chapters entitled "Tort, Property, and Reputation: The Expansion of Action on the Case" and "The Rise of the Action of Assumpsit." Part Three, "The Modern Law of Tort and Contract," moves to the eighteenth through twentieth centuries, discussing trespass, case, and the moral basis of liability, nineteenth-century tort law and the rise of negligence, "the law of torts in the twentieth century [and] the expansion and collapse of the tort of negligence, foundations of the modern contract law, the rise and decline of the will theory, and legal regulation and contractual fairness." Part Four has a chapter on unjust enrichment and concludes with a chapter, "Legal Change and Legal Continuity."	1
Ibbetson's book has all the characteristics of fine scholarship: lots of ideas, thorough research, a general thesis, and clear writing. But it offers more as it pursues a different approach to these familiar topics. Over the years legal historians and commentators on tort and contract law have produced numerous books and articles on topics covered in the book. But none of the prior scholarship approaches these subjects as Ibbetson has. Thus his book provides a new, distinctive perspective that substantially enhances its significant contribution.	2
The final chapter, "Legal Change and Legal Continuity" provides the essence of Ibbetson's approach. He explains that the nature of a case law system causes change to occur through "filling in gaps," "twisting rules," "rediscovering old ones," "reformulating claims in new conceptual categories," "inventing new rules," "borrowing rules from outside the Common Law," "injecting shifting ideas of fairness or justice," and "very occasionally. . . adopting wholesale procrustean theoretical frameworks into which existing law can be squeezed" (294). But he points out that "inventing of the new is rarely combined with the discarding of the old" (294). As a result, "at a deep level the structure of the Common Law of obligations has remained remarkably slow-moving" (294) and "like an ancient building in continual use for centuries but readapted to satisfy the needs of each generation, the medieval ground plan of the Common Law of obligations remains visible through all the reordering of its internal features and the change of use of its component rooms" (295). However, "this type of structural continuity" results in "legal hangover: although the Common Law is capable of sloughing off outdated rules that have become inconvenient, it is less successful at losing doctrines or whole bodies of ideas" (301). The book's "meta-theme" regarding legal change and continuity produces three important contributions to the literature on these subjects that give it a special significance.	3
First, the book recounts the development of the law of obligations from its beginning to the present. Most other works in the field focus on a period or particular development. Telling a fuller and more complex story offers important advantages. Seeing the "continuity of structure" of tort and contract law from the medieval period enables the student of the subject to understand more fully the modern law and the manner in which this "skeleton" impacts the continuing development of the law. Moreover, Ibbetson raises many provocative issues regarding twentieth-century developments. Second, the book recounts a history of the law of obligations, not of the separate law of tort and contract. Ibbetson repeatedly illustrates how the law in these two areas not only has a tangential or interstitial relationship, but in fact is interrelated. From its pre-history to the present, the book postulates an interrelation of tort and contract with lasting, visible, and important effects. The "ambiguity [between contract and tort] was never resolved. One pervasive theme for the next seven centuries of legal history was the friction on boundaries [of contract and tort].. . . The scars are plainly visible in the Common Law of the end of the twentieth century" (23). Third, Ibbetson has an eclectic approach to English legal history. At one level, this book is rooted in the traditional approach to the subject. It focuses on doctrine and the significant role of lawyers and judges in the evolution of the law. Thus, its approach is much closer to that associated with S. F. C. Milsom and others and more distant from the revisionism of Robert Palmer. On the other hand, Ibbetson's interest in Roman and later civil law and commentators is very evident. Beginning in the seventeenth century and extending into the nineteenth century, Ibbetson believes that Roman law, Natural Lawyers, and continental writers such as Pothier, Grotius, Savigny, and Pufendorf had a substantial influence on the theoretical structure of and changes in contract and tort law (153-54, 158, 164-68, 213-32). The main thrust of this argument is not specifically inconsistent with the traditional approach because of the particular time period in which he asserts that these influences occurred. However, Ibbetson also detects the influence of Roman law during the medieval period (19, 99, 108). Nor are the influences limited to Europe. He notes the law applicable to India (227, 235, 253, 255, 284-85) and even gives credit to an American influence on English law. Without diminishing the impact of Moses v. Macferlan, he believes that unjust enrichment was not fully established in England as an independent notion until the last decade of the twentieth century and he attributes significant influence to the American Law Institute's 1937 Restatement of Restitution and American commentators (285-86). Although other scholars, particularly Richard Helmholz, have argued that civil and ecclesiastical law have influenced the common law, Ibbetson's more expansive acknowledgment of outside sources departs more significantly from the nationalistic nature of the traditional orthodoxy.	4
In conclusion, this book is a substantial addition to the literature in the field. A wide variety of academic and practicing lawyers would benefit from reading it. It also prompts a question with this American reader: is the story of the historical development of American tort and contract law the same or different? My experience in teaching English contract law made me understand that the doctrinal similarities of American and English contract law mask real dissimilarities due to the differences in English and American notions of judicial power and the judicial process. Thus, I suspect that the historical development may differ.	5
Jonathan Rose Arizona State University

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.