The historical and epistemological obstacles 155 tions is that while symmetry has a pleasing simplicity, it can also act as a forceful and complex obstacle to harmonisation of patterns of legal thought in that incompatibility of pattern within the analysis of a factual situation will give rise to an incompatibility at the level of analysis itself. For example, in the codes, the idea of a law of obligations is, as we have seen, defined in part through its opposition, in terms of a pattern of relationships, to a lawof property; contract and possession are different because they involve two quite different relationships. In turn this difference of pattern gives rise to the fundamental dichotomy between real and personal rights which, in its turn, acts as the foundation for the normative differences between the law of property and the law of obligations. 3. Transgressing the symmetry But what if a legal systemrefuses to conformto this symmetry? What if, as in English law, one can have a personal action {actio in personam) based upon a real right {ius in rem)} In Lipkin Gorman v Karpnale Ltd^'^ a firm of solicitors brought an action against a gambling casino for the return of money embezzled fromtheir client account by one of their partners and gambled away at the defendants’ club. According to Lord Goff “the solicitors seek to showthat the money in question was their property at common law.” However “their claim in the present case for money had and received is nevertheless a personal claim; it is not a proprietary claim, advanced on the basis that money remaining in the hands of the respondents is their property.Turning briefly to equity, the law Lord made the point that even if legal title to the money did vest in the fraudulent partner immediately on receipt, nevertheless he would have held it on trust for his partners, who would accordingly have been entitled to trace it in equity into the hands of the respondents. However no such equitable tracing claimwas advanced by the solicitors; they were, it seems, content to proceed at common law by a personal action, that is to say, an action for money had and received. Returning to the facts of the case before him Lord Goff observed that before the partner drew upon the solicitors’ client account at the bank, there was no question of the solicitors having any legal property in any cash lying at the bank since the relationship of the bank with the solicitors was essentially that of debtor and creditor. But such “a debt constitutes a chose in action, which is a species of property; and since the debt was enforceable at common law, the chose in action was legal property belonging to the solicitors at common law.”’^ Lord Goff accordingly concluded that in his opinion there was “no reason why the solicitors should not be able to trace their property at '•» [1991] 2 AC548. 15 At p. 572. I'’ At p. 574.
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