13-02-20

Comparative Tort Law

The
Law of Torts
and the Law of
Delict
2

Literature
Reinhard Zimmermann,
The Law of Obligations, Roman Foundations of the
Civilian Tradition
Chapter 27 Delict in General
Chapter 30 Lex Aquilia II, par. III and IV

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General principles
• Prof. Winfield: ‘tortious liability arises from a
duty primarily fixed by law: this duty is
towards persons generally and its breach is
redressible by an action for unliquidated
damages.’

Nature of a tort
• Tort or Torts?
• General principle of liability theory
• Only specific torts
• No tort of eviction: Perera v Vandiyar, 1953
• No tort of perjury: Hargreaves v Bretherton,
1958, affirmed: Roy v Prior, 1969
• New [?] tort of intimidation: Rookes v Barnard,
1964, per Lord Reid
[1793 prec.?]

The remarkable resemblance

between
Roman law
with regard to ‘Delicta’
and the Anglo-American
‘Law of Torts’
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*
Not just one ‘illegal act,
but a catalogue of torts
(resp. delicta)
*

The same background:

the old common law
was (until 1854 (!)) based on actions
(just like classical Roman law)
*
writ = actio
*

The
Law of Torts

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Torts: Delicta:
Trespass Damnum iniuria datum
Nuisance (lex Aquilia)
Waste Metus
(Detinue)
Conversion Furtum
Deceit Dolus
Defamation Iniuria
Conspiracy Rapina
Etc. Etc.
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The - somewhat - unifying force

of the tort of negligence
• Donoghue v Stevenson (1932): Lord
Macmillan: ‘the categories of negligence are
never closed.’

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2
*
Not just compensatory,
but also punitive
(just like the classical Roman
law of delicts)
*

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Punitive damages
(compare the poena of the classical
Roman law of delicts)
*

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*
cumulation
of punitive damages and ‘real damages’
(just like under the classical Roman
law of delicts)
*

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Divergence
of English law and the law
of a great number
of states in the U.S. *
The significance of Amendment VII
*

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Punitive damages
• Exemplary (punitive) damages
– Rookes v Barnard [1964] 1 All ER 367, per Lord
Devlin

• Arbitrary or unconstitutional action by servants of

state
• Conduct calculated to make profit exceeding
compensation
• Expressly authorised by statute

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Broome v Cassell,
(CA, 1971) per Lord Denning
When the House came to deliver their speeches, Lord Devlin threw over all that
we ever knew about exemplary damages. He knocked down the common law as
it had existed for centuries. He laid down a new doctrine about exemplary
damages. He said [...] that they could only be awarded in three very limited
categories, but in no other category: and all the other lords agreed with him.
This wholesale condemnation justifies us, I think, in examining this new doctrine
for ourselves: and I make so bold as to say that it should not be followed any
longer in this country. I say this primarily because the common law of England
on this subject was so well settled before 1964 – and on such sound and secure
foundations — that it was not open to the House of Lords to overthrow it. It
could only be done by the legislature.
If ever there was a decision of the House of Lords given per incuriam, this was it.
The difficulties presented by Rookes v. Barnard are so great that the judges
should direct the juries in accordance with the law as it was understood before
Rookes v. Barnard.

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Broome v Cassell,
(HL, 1972), per Lord Hailsham
The fact is, and I hope it will never be necessary to say so again,
that, in the hierarchical system of courts which exists in this
country, it is necessary for each lower tier, including the Court of
Appeal, to accept loyally the decisions of the higher tiers. Where
decisions manifestly conflict, the decision in Young v. Bristol
Aeroplane Co. Ltd. [1944] K.B. 718 offers guidance to each tier in
matters affecting its own decisions. It does not entitle it to
question considered decisions in the upper tiers with the same
freedom. Even this House, since it has taken freedom to review
its own decisions, will do so cautiously.

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Amendment VII
(U.S. Constitution)
*
In suits at common law,where the value
in controversy shall exceed twenty
dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any
court of the United States, than according
to the rules of the common law.
*
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*
The rule
Actio poenalis moritur cum persona
(just like in the classical Roman
law of delicts)
*

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Not only in case of death of tortfeasor

(as in Roman law),
but also in case of death of victim.

‘Fatal Accidents Act’ 1846

‘Survival Act’ 1934
*

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*
(in England)
Inassignability
of an action based on tort
[maintenance or champerty]
Glegg v. Bromley
[1912] 3 KB 474
But: ‘no rule of law which prevents the
assignment of the fruits of an action.’
*
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The
Tort of Negligence

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Blyth v. Birmingham Waterworks

(1856) [p. 464]
per Alderson B.

‘negligence is the omission to do something

which a reasonable man, guided upon those
considerations which ordinarily regulate the
conduct of human affairs, would do, or doing
something which a prudent and reasonable man
would not do’.
(diligentia boni patris familias)
privity of contract
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Quintus Mucius Scaevola

D. 9,2,31
(Paulus libro decimo ad Sabinum)
Mucius dixit … culpam autem esse,
quod cum a diligente provideri
poterit, non esset provisum.

(Paulus, On Sabinus, Book X)

Mucius states … it is negligence
when provision was not made by
taking such precautions as a
diligent man would have done.

Tiepolo

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Donoghue v Stevenson [1932]

Paisley

Mrs May Donoghue,

born McAllister

Site of Wellmeadow Café

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Donoghue v Stevenson
[1932] AC 562, 580
per Lord Atkin:

Duty of care
‘You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be
likely to injure your neighbour.
Who, then, in law is my neighbour?
The answer seems to be - persons who are so closely and
directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question’.

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Judge Benjamin Cardozo

MacPherson v Buick Motor Co.
111 N.E. 1050 (N.Y. 1916)

‘If the nature of a thing is such that it is

reasonably certain to place life and limb in
peril when negligently made, it is then a
thing of danger. Its nature gives warning
of the consequence to be expected. If to
the element of danger there is added
knowledge that the thing will be used by
persons other than the purchaser, and
used without new tests, then, irrespective
of contract, the manufacturer of this thing
of danger is under a duty to make it
carefully. That is as far as we need to go
for the decision of this case . . . . If he is
negligent, where danger is to be foreseen,
a liability will follow.’

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Duty of care
• Presence of duty of care
• Breach of duty of care
• Damage
• Causation

Lord Atkin

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Lex Aquilia
• Damnum iniuria datum
• 287 BC: damage to property
• Chapter 1: occidere: killing of slaves or cattle
• Chapter 3: urere, frangere, rumpere: burning,
breaking, tearing
corrumpere: despoiling, deteriorate
Actio directa: direct injury
Actio in factum: indirect injury (cf. case)

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Lex Aquilia
• Iniuria (illegality)
• Culpa (fault)
• Damnum: from value object to damages
• Datum: direct or indirect
– Reasonably foreseeable (Pothier); Cf. Wagon Mound
• Actio mixta: punitive and real damages
– Passively intransmissible and cumulative
• Actio directa: owner
• Actio utilis: other title

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Ius commune
(Roman law and canon law)
• Real damages
• Passively transmissible: aequitas canonica
– Sin restitution: to save the soul of the
perpetrator: (tacit) promise at ‘confession’: contract!
• Not penal any longer: secular law as well
• Purely patrimonial loss, not just property
• Injury to free persons: pain, suffering,
disfigurement
• Damages for immaterial interests

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French law
• Natural law: general principle
• Fault general basis (faute)
• Purely patrimonial loss (French law)
• Art. 1382 Cc:
• Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par
la faute duquel il est arrivé à le réparer.

• Any act by which a person causes damage to

another binds the person by whose fault the
damage occurred to repair such damage.

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German law
• German law different (Pandectists)
• Back to lex Aquilia: limited scope
• § 823 I BGB:
• Wer vorsätzlich oder fahrlässig das Leben, den Körper, die Gesundheit, die Freiheit, das
Eigentum oder ein sonstiges Recht eines anderen widerrechtlich verletzt, ist dem
anderen zum Ersatz des daraus entstehenden Schadens verpflichtet.

• A person who, intentionally or negligently,

unlawfully injures the life, body, health, freedom,
property or any other [absolute] right of a person
is liable to make compensation to the other party
for the damage arising from this.

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