The Classification of Obligations

The Classification of Obligations

The Classification of Obligations

The Classification of Obligations


This is an important book which explores the classification of obligations. This is a very topical subject since the professions only started requiring Obligations in the compulsory core as recently as October 1995. It is fitting that it is examined here by contributors who are among the best-known writers in this field. The contributions include A New 'Seascape' for Obligations: Reclassification on the Basis of Measure of Damages by Jane Stapleton; Basic Obligations by James Penner; and an essay by Peter Birks himself entitled, Definition and Division: A Meditation on Institutes. These essays combine practical and academic perspectives which usefully highlight contemporary trends in the law of obligations. The book will be a valuable addition to the libraries of all teachers involved in this area of law.


It is a frequent criticism of law schools that law graduates show insufficient ability to move from one category of the law to another. The phrase 'stovepipe mentality' has been coined in Canada to identify this deficiency. If lawyers cannot move efficiently across the law, the law itself cannot be reliably applied. Individuals must then lose cases they should have won or, more commonly, settle or abandon claims on wrong advice. Perfect justice may be elusive, but these are obvious injustices. Remedies are proposed. It is suggested that the law might be taught category-free. But that is impossible. The human mind cannot think category-free.

The root of the trouble has been wrongly diagnosed. It is not the existence of categories but the almost complete failure of the common law to think about and talk about the shape and inter-relationship of the categories which it uses. In short the common law has not attended to its taxonomy. If there is no debate as to the nature of the categories which the law uses and the relationship between them, the business of moving from one to another will inevitably be fraught with anxiety and danger. The alphabet will assert itself and has asserted itself. The alphabet can help in finding things but not in understanding them. It cannot tell you, for example, why a whale has more in common with an elephant than a shark. Left to itself, the untutored mind, confronted with a dogma to that effect, will speculate and almost certainly fall into error. No science can progress without taxonomy and taxonomic debate. A dead taxonomy is almost as bad as none at all. There has to be a continuous debate, constantly seeking to improve the received wisdom.

The forms of action gave the common law a kind of classification, historically or, one might say, intuitively determined. When faith in the list of actions faded in the nineteenth century, a rigid doctrine of precedent was pressed in their place to be the means of stabilizing the bewildering fluidity which threatened to result from their abolition. With hindsight we can see that that could never be more than a holding operation. It gave time for a new taxonomy to develop. Common law jurists of the late nineteenth and early twentieth century drew on Roman law and the continental systems derived from Roman law and with that help began to move the taxonomic debate forward. Somewhere along the line the effort faltered. The doctrine of precedent can no longer hold things as they were a century ago. But, as the twenty-first century approaches, we still have no taxonomy to order a legal world in which the forms of action can no longer rule us from their graves.

Fallacy and error are enemies of justice. The necessity of good classification and keen consciousness of the nature of the diverse series of categories which the law uses is no less obvious. The child who thinks that a whale is a . . .

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