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Greetings to all.

As I understand it, Birks' uses the concept of "causative events" to describe categories of events that create private obligation, of which he specifies three basic categories (wrong, consent, and unjust enrichment) and a miscellany. Neyers' question of how property fits in this schema, I think, at bottom raises a question about what we mean by obligation. Thinking about this question suggests a caveat to a point Birks makes at the end of "Equity, Conscience, and Unjust Enrichment" that equity ought to have the same taxonomy as law.

Birks flips the old common law world view. He uses the concept of causative events to establish when P may seek the assistance of a court in making some demand upon D. What P may demand is a subsidiary question. You might say Birks puts right before remedy (I gather he would use the term rights to include remedies, meaning (loosely) what a court will do for you upon a causative event. See Birks, Rights, Wrongs, and Remedies, 20 Oxford Journal of Legal Stud. 1 (2000)). In a body of law organized around writs, it was more the reverse in the sense that a plaintiff had to bring his case within a writ that gave a court the power to act. The image this brings to my mind is of a world where people do not always or in the first instance look to the state (or the king's courts) to do justice or to protect their rights. Another way to put it is that their rights were not co-extensive with what the state would enforce. Property still very much has this quality, at least in common understanding. My land is mine because I can put a fence around it, or can hurt you if you come on it without permission. To the extent I look to the state to protect my land it is to the police, who will drive the intruder off, and not to common law courts.

This is not meant as a criticism of Birks' concept or his categories. His schema fits our world-view fairly well when its come to classifying private law, which is Birks' task (Though it does not work so well in contract. You might look at 20 Oxford J. Legal. Stud at 27-28.) The observation relates to a modest caveat I would add to a point Birks makes at the end of "Equity, Conscience, and Unjust Enrichment." His point is that equity ought to have the same taxonomy as law. Surely this is right in the main, but what are we to do with estoppel, or, more precisely, the old axiom that estoppel acts as a shield but not a sword? This axiom is easy to ridicule since estoppel may go to a defense to obligation, but it serves an indispensible function. It signals that estoppel works interstitially in the law. P must establish a wrong, consent, unjust enrichment, or some other miscellaneous basis to get a court to impose an obligation upon D, but conduct short of this may justify a court in holding its hand against D.