Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

4. DUTY OF THIRD PARTIES NOT TO

INTERFERE WITH CONTRACT

We have already seen1 that Roman law, like our own, recognised the principle that a third person could not have rights or liabilities under a contract, and that, like our own, it succeeded in evading this in pressing cases. It should be added that in both systems, though a third party could not be bound, the contract does in fact, to use 'jurisprudent^!' language, generate a ius in rent, in the sense that there are remedies if a third person interferes in the performance of the contract, though the Roman law does not go so far in that direction as does ours. In Roman law such interference with a contract as made it impossible for one party to perform it and so released him gave to the other party an actio doli against the person interfering.* This is a very narrow protection. In our law the existence of a contract (at any rate of certain kinds of contract) imposes upon everyone a duty not knowingly to cause damage by interfering with the performance of it. Apart from the somewhat special rules affecting trade disputes,3 it is an actionable wrong, knowingly and without just excuse, to cause damage by inducing a party to a contract to break it. To what classes of contract this principle applies, and what are just excuses, are questions still in process of solution, though the principle has recently been clarified by the Court of Appeal in its application to the typical class of contract affected by it, namely the contract of employment.4 There seems to be no authority in our law upon the actual case above cited from Roman law, but the tort of interference with contractual relations certainly extends beyond the direct inducement oiAto break a contract with B and reaches an act by the defendant himself

Barnard, supra.

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says Story on Bailments (Sect. 431). But with us, in general, differing circumstances call for different degrees of carefulness—a man carrying a delicate instrument must show more care than need be shown by one who is carrying a brick. Unintentional failure to show the care needed in the circumstances is negligence. Thus we do not in our law of contract or tort usually speak of degrees of negligence although until recently we did so in the law of bailments, which, as is well known, shows the impact of Sir John Holt's attempt to carry over a certain amount of the Roman law via Bracton so far as this matter is concerned.1 If we speak of degrees at all we speak of degrees of care, or at any rate we ought to. That this is the correct point of view for the common law is clearly laid down by Beven, who states2 that * the learning concerning degrees of negligence is scholastic, for the division of negligence into the three degrees of "ordinary", "slight", and "gross", although well known to the Roman law, does not exist in English law.. . . The positive quality is care according to the circumstances. . .'; it is the degree of care that varies with the circumstances, and lack of the required degree constitutes negligence. That appears to be the true doctrine; more epigrammatically it has been said judicially that gross negligence is the same thing as negligence 'with the addition of a vituperative epithet'.3 But the temptation to speak of degrees is not always resisted. On the other hand, in the law of the Corpus Juris the matter is otherwise put. The texts speak not of degrees of care, but of degrees of carelessness, and in stating these degrees they do not take account of the kind of thing which is to be done: they do

1See now the judgment ofthe Court ofAppeal in Houghlandw. R. R. Low {Luxury Coaches) Ltd. [1962] 1 Q.B. 694.

2Negligence, 4th ed. p. 15.

3Rolfe B. in Wilson v. Brett (1843), 11 M. and W. 113, 116; see also Willes J. in Grill v. General Iron Screw Collier Co. (1866), L.R. 1 C.P. 600, 612: ' Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use.'

not say that it is less permissible to do one sort of thing carelessly than another. This is taken for granted: of course one who is winding a watch needs to act more cautiously than one who is winding a bucket out of a well. They distinguish on other lines. Putting the matter roughly, we may say that their position is that in certain transactions involving confidence and wherever one is beneficially interested under the contract one is liable for culpa levis, defined as failing to show exact care, such as a bonus paterfamilias would show. In other cases, e.g. deposit, a gratuitous service, one is liable only for dolus and for culpa lata^ i.e. for gross negligence: 'non intellegere quod omnes intellegunt'.1 Further complication is introduced by the cases in which one is bound to show the care which one habitually shows in one's own affairs, but this we need not consider. This distinction is not ancient in the law and its genesis and indeed the genesis of the whole conception of culpa is one of the most vexed questions in the history of the Roman law, into which we cannot enter.2'

The curious way in which culpa lata is defined—*non intellegere quod omnes intellegunt'—and the crude proposition in the Digest—'magna culpa dolus est'3—led Mitteis to the view4 that since it is not easy to tell whether a course of conduct was actually intended or not, the facts are allowed to speak for themselves: you may say that your gross disregard of the other party's interest was merely carelessness, but you must have known better than to do what you did: your conduct is indistinguishable from doluSy so that you are responsible. The result is that, even starting as the law clearly did in earlier classical times from the view that only dolus entailed liability in

2For a general account of the matter see Buckland, Main Institutions of the Roman Law, pp. 299 sqq.

3D. 50. 16. 226.

4Rom. Privatrecht, pp. 325 sq., 327, n. 42. See also Arangio Ruiz,

Resp. Contratt. 2nd ed. p. 255.

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a great many cases, the lawyers reached much the same result as was reached in later times. What later times called magna or lata culpa, they were prepared to treat as dolus. German law seems to retain the distinction and there are traces of it in the French Code Civil, but if we may judge by the commentaries it is of little use.1

'Non intellegere quod omnes intellegunt' expresses on the face of it an impossibility, but it seems designed to bring out just the relation between culpa lata and dolus above stated: whatever you say, you must have known what you were doing. In fact it is not negligence, but the state of mind called by Austin recklessness, consciousness of the possible results but no desire that they should occur.2 And there is a close similarity between Austin's classification of recklessness under the head of intention and the Roman, at least the late Roman, culpa lata dolus est. Thus this conduct or habit of mind, recklessness, stands in both systems between dolus and culpa, between intention and negligence, and has a foot in both camps.

It may be noted that in our law of manslaughter this

which is necessary to a conviction for * involuntary manslaughter* is in fact recklessness as defined above. 'Culpable negligence' seems a curiously chosen expression; for in telling us that the ' negligence' which creates liability for homicide must be 'culpable' negligence the proposition tells us nothing, for culpable means creating liability. The expression seems to be a creation of text-books and judges, not statutory, any more than is the almost equally unhappy expression 'involuntary manslaughter'. But the

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statute book does even worse, for it speaks, in a different connexion, of * wilful neglect',1 which seems very like a contradiction in terms.

6. NEED AND NUMBER OF WITNESSES

If it is desired to prove a transaction it is necessary to submit some evidence of it, which may be documents signed by a party or certified in some way or the evidence of witnesses who testify to the occurrence of the transaction. But neither the old common law nor the earlier Roman law required the presence of witnesses as a requisite to the validity of transactions in many cases. No contract of the classical or later law normally required witnesses as a matter of law. The normal contract of stipulatio never required

them, nor did the formal dictio dotis. Cretio> the formal acceptance of a hereditas, did not require witnesses, though they were commonly used and testators often required them. Some writers indeed, in view of the nature of the act, assume that witnesses were required, but entirely without evidence. Traditio of property required no witnesses in classical law or under Justinian. Similarly with us a deed requires no witness at common law though attestation is

a usual precaution and statutes have now required witnesses in many cases. But there is one notable difference. With the Romans ordinary transactions inter vivos rarely needed witnesses, but they were required in all acts involving a ritual which went beyond formal words. Mancipatio and its derivatives needed witnesses. The ritual search for stolen goods did.2 Confarreatio> marriage with an elaborate ritual, needed witnesses. It is noteworthy that when Constantine surrounded traditio of land with ritual

1 See, e.g., Offences against the Person Act, 1861, ss. 26, 3 5; Words and Phrases judicially defined, vol. v, pp. 493-495. The condemnation in the text is perhaps a little too strong, for 'neglect' means no more than 'omission', which can of course be wilful.

2 At least the simpler form of search into which it was modified did; G. 3. 186, 193.

264 OBLIGATIONS: GENERAL

observances, to secure publicity he required the presence of the neighbours.1 Our own older law did not impose this requirement. Neither the speaking of the words of a feoffment nor the ensuing livery of seisin, a ritual delivery of land with the object of securing publicity, seems to have required the presence of anyone except the parties, though in its German home (if that be the origin) witnesses appear to have been necessary;2 when later it became customary to record the feoffment in a charter, witnesses became usual. The transfer of copyholds, a ritual act 'by the rod', never required the presence of witnesses. But where the Roman law did reqtiire witnesses it seems to have called for what look to us inordinate numbers. Confarreatio^ the ancient ritual marriage, required ten witnesses;3 mancipation formal conveyance, required five witnesses.4 Wills, not unnaturally in view of the postponed operation of the instrument, have required attestation in the developed law of both systems. But while our law has contented itself with three or more and now requires two,5 Roman law required a number varying historically, but normallyfiveor seven.6 These seven witnesses appear elsewhere. The formal notice of divorce under the lex Iulia required seven witnesses.? When it became usual to have written notes of transactions these were often attested, though that this was not legally necessary appears from the fact that many which have survived are not attested, and the number of witnesses is very often seven. Constantine required for certain donationes'conventusplurimorum\% In some cases we know only that witnesses were needed, not their number, e.g. in the search for stolen goods itestibus praesentibus^ and in the attestation of proceedings of the Senate.10