of the employment. For the same reason the keeper of a motor vehicle, the owner of premises and the producer of goods must all answer for the personal injuries and damage to property which are caused by their things. In the other direction, a person may be unable to recover reparation, if that person consented to the damage suffered or knowingly accepted the risk.103 Similarly, reparation may be reduced if there was contributory fault on the part of the person suffering the damage.104

52. Protecting the vulnerable. Although the law on non-contractual liability aims at protection, it is framed by reference to types of damage and not by reference to the need for protection of particular groups. There are, however, some recognitions of this aspect of the principle of justice. One is indirect: in the definition of negligence reference is made to failure to come up to the standard of care provided by a statutory provision whose purpose is the protection of the injured person (the assumption being that the statute protects a vulnerable group of which the injured person is a member).105 The others are more direct but operate in the other direction, by protecting the people in the categories concerned from full liability for damage caused where it would be unfair to expose them to such liability. Children under 7, young persons under 18 and mentally incompetent persons are all given some protection in this way.106

Property

53. Importance of certainty. Certainty is so important in property law that there are fewer rules which rely overtly on justice than in the other branches of the law already discussed. However, the idea of treating like alike (specifically, treating all the creditors of the transferor alike) played an important part in the debates on the question of whether ownership should as a rule pass on the conclusion of the

103VI. – 5:101.

104VI. – 5:102.

105VI. – 3:102.

106VI. – 3:103 and VI.–5:301.

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relevant contract (e. g. a contract for the sale of goods) or only on delivery of the goods or in accordance with another system.107 Moreover the notion of good faith plays a crucial role in the rules of Book VIII which deal with the acquisition of goods. Chapter 3 deals with good faith acquisition from a person who is not the owner. The main objective of those rules is the promotion of security by favouring the status quo but they are heavily qualified by notions of justice. The acquirer will get ownership only if the acquisition was in good faith.108 The position is the same in the rules on the acquisition of ownership by continuous possession.109 Justice is also an important element in the rules on the consequences of production, combination or commingling. It is not enough to produce an answer to the question of who owns the resulting goods. The result must also be fair. Where, for example, one person acquires ownership by producing something out of material owned by another, a fair result is achieved by giving the person who loses ownership a right to payment of an amount equal to the value of the material at the moment of production, secured by a proprietary security right in the new goods.110 This prevents the taking of an undue advantage at the expense of another. The only example of consumer protection in Book VIII is the rule on the ownership of unsolicited goods sent by a business to a consumer.111 Justice lies behind many of the rules in Book IX on proprietary security and particularly the rules on priority112 and enforcement.113 In this context it means not only fairness as between the security provider and the secured creditor but also fairness between different secured creditors and indeed others having a proprietary right in the encumbered assets. The emphasis is on the protective aspect of justice and it is the security provider who often requires protection. There are provisions designed to afford particu-

107For the outcome, see VIII. – 2:101.

108VIII. – 3:101. See also VIII. – 3:101 on acquisition free of limited proprietary rights.

109VIII. – 4:101.

110VIII. – 5:201.

111VIII. – 2:304.

112Chapter 4.

113Chapter 7.

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