These Lectures

The present volume contains notes for a series of twenty-four lectures on the Roman law of obligations: two fifty-minute lectures per week over the long, twelve-week, Edinburgh term.

The Lectures are not only organised around, but a constant reflec­tion over the institutional structure of the law, so named after the Institutes of Gaius and Justinian, which (in a modified form) would become the backbone of the later civilian tradition. They approach the law of obligations, in the first instance, as a constituent part of this framework. �Omne autem ius, quo utimur, vel ad personas pertinet vel ad res vel ad actiones', as every student of Roman law learns early in their study: �All the law we use has to do either with persons or with things or with actions.'^[2] Obligations are concerned with the middle element, �things'. From a modern perspective, we would probably want to say that the law of things comprises assets, that is to say, rights. These rights can be �real' (in the sense of pertaining to a thing, in Latin res) or they can be �personal' (residing in a persona): from this we derive our law of property—the study of rights in rem—and our law of obligations— the study of rights in personam.

That Birks believed this to be the map through which the common law too could best be understood is visible, in particular, from his attempt to produce Institutes of English law in the guise of English Private Law,^[3] a double-decker he coordinated at the turn of the cen­tury. (This was later followed by an English Public Law,^[4] which he spurred even though he did not contribute directly to it.) However, our modern version of the scheme, whether civilian or �Birksian', is markedly different from the Gaian-Justinianic attempt, which itself was entirely at odds with the traditional mode of thinking of Roman lawyers.

The following ten chapters follow closely the Gaian order of Roman obligations. At the next level, obligations are divided according to their causative event, that is to say, the real-life event to which the law responds by creating a right vesting in Peter Plaintiff (in Latin, Aulus Agerius) and available against David Defendant (Numerius Negidius). These events are contracts, civil wrongs (delicts) and a miscellany which Gaius called �a variety of types of causes'.^[5] The identification and classi­fication of these miscellaneous events poses redoubtable problems. Indeed, Gaius did not include them in his original Institutes and only mentioned them in a later work, known to us through excerpts in the Digest, the Res Cottidianae.6 Though of particular interest to Birks, they are examined with comparative brevity in the third and final part of these Lectures.

The first two parts, Contracts and Delicts, are divided one level down into nominate species of their genus, such as sale and mandate for contracts or loss wrongfully caused and contempt (iniuria) for delicts. (Contracts, but not delicts, are arranged in clusters of like events into the four classes of contracts litteris [by writing], verbis [by words], re [by delivery of a thing], and consensu [by consent, sc. by consent alone]. There is on the other hand only one class of delicts.) The part on contracts is longer than that on delicts, although it is hard not to sense that Birks' heart is more in the latter, as indeed the rest of his career shows. What makes the contractual section of these Lectures especially interesting is precisely that the author published precious little on contracts, whether Roman or English, in his lifetime.

As we move to delict, one noticeable feature is that Birks starts to engage with other scholars, the likes of Daube, Honoré, Jolowicz, and Kelly. The style is also different: less attention is given to the fine-tuning of the law as the Romans knew it, and more emphasis is laid on jurisprudential aspects. It is clear that Birks regarded delict as a more challenging subject and one more worthy of engagement on the part of the modern mind (the same premise which explains why, for several decades, the sole Roman law course on the Bachelor of Civil Law in Oxford was an advanced course in Roman delict). Indeed, it is well-known that writing a book on the Roman law of delicts was one of his main plans for the retirement he never had a chance to enjoy.

Within delicts, the attention of modern scholars has been dispro­portionately directed to the lex Aquilia, the action for wrongful loss that was the basis on which the civilian tradition gradually erected a general principle of liability for loss caused by fault, and which has so many echoes in the modern history of the English tort of negligence. Birks shared this fascination for the Aquilian action, on which he wrote at length, returning to it over the course of two decades.^{[6] [7] But his interest was not limited to it, and these lectures contain extensive develop­ments on the other two main civil wrongs of Roman law, on which he also wrote: furtum (a very wide form of theft) and the transversal delict of iniuria, which he liked to translate as �contempt', for which Birks had a profound interest. This would resurface, in particular, in his John Maurice Kelly Lecture, given many years later in memory of his old Roman law tutor at Trinity College Oxford,[8] and which the present editor regards as one of the finest pieces of scholarship he ever produced.}