The historicAl, and epistemological obstacles 159 equitable remedy of specific performance, an institution capable of attracting its own particular rules.Indeed, in the Court of Appeal,^*^ the promise to pay a debt was transformed, by institutional rearrangement, froma personal obligation into a real right, thus allowing, according to the majority of the court (who were overturned on this point by the House of Lords), Mrs Beswick to sue the nephew in her own personal capacity. At one level one is referring to rules, that is to say to propositional knowledge which can be seen as part of a symbolic system of representation (the rules dealing with privity of contract and its exceptions). But at another level these rules have grown out of an institutional image created, and rearranged, by the interrelation of these elements. “Du symbolique”, as Delacour has observed, “pent done ctre produit par du non-symholique”P 5. Ex facto ius oritur The common law, then, functions by constructing its solutions within the factual situation itself and not outside of it. It rarely thinks in terms of models of rules each bound one with another via the symmetry of the institutional system of relations between the abstracted elements of persona, res and actio. Instead it uses a mc^del of institutions which functions within the facts and attaches to subjects and objects as individualised persons and things so as to organise a structure to conformwith particular legal possibilities. Of course there is abstraction. But the level of abstraction becomes in itself part of legal knowledge. Thus in 1936 it was not yet clear if the rule in Donoghue v Stevenson,^° concerning injury done by a defective bottle of ginger-beer, would apply to a defective pair of underpants and thus counsel for the defendants in Grant V Australian Knitting Mills Ltd^^ argued, admittedly it would seem rather weakly, that a rule fashioned for an article of drink should not apply to an article of clothing since they were quite different objects. In holding that the rule was applicable, the Privy Council was confirming that, as far as the facts of Donoghue and Grant were concerned, the res to which the rule attached was a ‘product’. Other examples could be given. In fact, in the very recent decision of White v Jones^^ the difference of opinion in the House of Lords between the majority and dissenting minority focused on the question of whether a duty was something that fixed to a particular factual class of persons (solicitors) or to an abstract structure of relations which transcended the Bes-zt'ick V Beswick [1968] AC58. [1966] Ch 538. And see G. Samuel, Foundations, op.cit.. pp. 234-235. J. Dclacour, Lc cerveau ct I’csprit (Presses Universitaires de France, 1995), p. 121. io [1932] AC 562. 'I [1936] AC58. '2 [1995] 2 AC207.
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