Geoffrey Samuel 156 common law in that chose in action, or in any part of it, into its product” since such “a claimis consistent with their assertion that the money so obtained by [the fraudulent partner] was their property at common law.”'^ There is in fact no institutional reason why a debt cannot be a formof property since it is easy enough to turn it into a res which one can then claim as one’s own. Yet, to a civil lawyer, the whole purpose of the symmetry behind the relations in rem and in personam is to reflect the difference between owning and owing. To rearrange the symmetry, as indeed the English law of restitution is quite happy to do, raises a major obstacle to harmonisation in that there is actually little point in talking about a law of obligations since, as Lipkin Gorman illustrates, an actio such as a debt claim is neither a purely personal action in the Romanist sense of the term nt')r a purely in remclaim. It is, quite simple, a mixture of both. In fact this intermixingof owningand owdng is a general difficulty facing those who would like to develop a law of tort froma lawof torts in that tort as a category acts as the home not just to non-contractual personal claims but also to what many would see as remedies belonging to the law of moveable property. If one person interferes with the property rights - with the possession - of another person this will give rise to a claim for damages in tort on the basis of trespass or, perhaps, conversion.*^ Yet the law of tort, in a harmonised European private law, would have to formpart of the law of obligations since it is concerned with personal actions for damages; the fact that some of these personal claims would arise as a result of rights founded upon the relationship between person and thing cuts across the symmetry of the codes. From an historical position trespass, nuisance, debt and detinue simply do not conformto the symmetry of real and personal rights. Indeed there is also a problem with regard to the Romanist distinction between public and private law.-° In Roy v Kensington & Chelsea Family Practitioner Commiltee-^ a doctor brought an action in debt against his Family Practitioner Committee for work done; he based the debt claimon a breach of contract. The Family Practitioner Committee (FPC) sought to have the claim struck out as an abuse of process on the basis that the relationship between a doctor and the FPC was a matter only of public law and that the sole remedy available to the doctor was an action for judicial review. The House of Lords refused to strike out the claimeven although, according to Lord Bridge, the relationship between the doctor and the FPC was probably not contractual. •7 Ihid. See now Torts (Interference tilth Goods) Act 1977. S. Milsom, Historical Foundations of the Common Latv (Butterworths, 2nd. ed., 1981), p. 6. And see nowHunter v Canary Wharf Ltd [1997] 2 WLR684 (HL). On which see G. Samuel, What is it to Have Knowledge of a European Public Law? in B. de Witte & C. Lorder (eds.). The common latv of Europe and the future of legal education (Kluwer, 1992), 171. [1992] 1 AC624.
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