The aim of this Essay is very simple: it is to demonstrate how quickly and how far the common law of England has departed from its traditional attitude, evident throughout the law of obligations, that while it may be very desirable for the parties to settle their dispute by themselves, the courts would not ordain a compromise, would not “split the difference,” but would give judgment in toto for one party or the other. The aim is to document the change, not to speculate on possible justifications or explanations.
Nevertheless, it may be suggested, as to justification for the change, that the traditional attitude, sensible enough in claims for property, which either belongs to the claimant or does not, may be thought less appropriate where the claim is for money, so easily divisible whether the claim is for the sum promised or paid in advance or for damages for harm caused. After all, the merits are not always all on one side or the other, though one must be aware of the tension between fairness and predictability of outcome. As to explanation, it may be that as long as the quantum of recovery fell within the province of a civil jury composed of laymen, who can usually see a matter in the round, the judges could rely on it to reach a fair result; now that the civil jury is virtually extinct in England, the judges perhaps feel themselves bound or entitled to take over its role in that respect. These questions are left to the reader, for in this Essay they are barely adumbrated by the writer.
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