Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

QUASI-CONTRACT AND NEGOTIORUM GESTIO

goods and is unable to communicate with the owner may in certain circumstances sell them; a person who supplies necessaries to a wife who is deserted by her husband may have a claim to reimbursement. These cases have been compared with the Roman negotiorum gestio, but it is to be noted that the case is not so much one of a service rendered as of a contract made: the party dealing with the agent of necessity recovers from the principal not the value of the service when it was rendered, but what is due under the contract; and in the third case the supply of necessaries can hardly be said to be done for the benefit of the husband, as at least the later Roman law required.

The condictiones for the recovery of unjust enrichment are closely analogous to our action for money had and received, and it may be said that in both systems the scheme is not exhaustive: in both there are cases in which money may be retained which morally ought not to be. Each system provides a rather haphazard list of cases in which recovery is possible. And while, as we have seen, there are many cases in which our law brings the matter under this head,' while Roman law dealt with it otherwise, so it may be that there are cases treated under the condictio in Roman law which are not dealt with in our law by the action for money had and received. Thus condictio furtiva was quasi-contractual in Roman law, while with us the action would be in tort, trespass, but that is not a very good example since this particular condictio is an anomaly even in Roman law. The efforts of our system to evolve an adequate remedy for unjust enrichment have recently been described by Sir Percy Winfield1 and by Professor Gutteridge.2 From time to time the need of it has been felt, but the difficulties of finding a place for it within the categories of contract or of tort or of indebitatus assumpsit

1Op. cit. ch. vii.

2Gutteridge and David, 'The Doctrine of Unjustified Enrichment',

Cambridge Law Journal, v (1934), pp. 204-229.

have hitherto been fatal to more than sporadic instances of recognition: amongst these it seems to be right to include Phillips v. Horn/ray,1 where the value of minerals wrongfully abstracted from under the plaintiff's land by a deceased trespasser and added to his estate was allowed to be recovered from the estate, thus constituting yet another exception to the maxim 'actio personalis moritur cum persona', which would then have defeated an action in tort.2 Whether, after the discussion in the House of Lords in Sinclair v. Brougham,! it will be possible to incorporate the doctrine of unjust enrichment into our law without the aid of legislation remains to be seen.4 Its more successful career in France is described by Professor David in the article cited above.5

It is observable that the action for recovery of money paid over for an unlawful purpose differs in one important way from the corresponding condictio ob turpem causam.

Where the wrongful purpose was common to both in equal degree the Roman law did not allow recovery.6 In our law there is a locus poenitentiae\ the money can be recovered before the unlawful purpose is substantially carried out.7 In Roman law, quasi-contract, like contract itself, is a civil conception. Modern writers tend, for convenience, to ignore this limitation and to expand the Roman law list by adding to it some of the almost innumerable praetorian rights and liabilities, the list varying in different books, but in practice covering what the individual writer thinks the more important. In many of them, e.g. those protecting the rights of adjoining owners, there is no shadow

of a negotium.

p.343, but cf. Reading v. Attorney-General, [1951] A.C. 507 at pp. 513,

514.See also Cheshire & Fifoot, Law of Contract, 5th ed. pp. 5 5 3-561;

the cases cited, Winfield, cit. p. 160, n. 5. But cf. Bigos v. Bousted, [1951J 1 All E.R. 92.

place themselves in a certain category such as common innkeepers, common carriers, users of the highway, prosecutors, occupants of premises, writers and printers, etc., does not on that account cease to be a right in rem. The point is that the innocuous traveller has a right of reception against any person who sets up as a common innkeeper in England and has room in his inn, just as I have a right against any person who institutes a prosecution against me that he shall do so without malice and with reasonable and probable cause. Conversely, the common innkeeper's duty of reception is none the less in rem because it is only owed to those who are travellers, nor the prosecutor's duty because.it is only owed to his victims. It is of course true that the breach of a duty in rem gives rise to a secondary, sanctioning right in personam. It is also true that in the case of the common innkeeper or the common carrier the reception of the guest or the acceptance of the goods for carriage creates rights in personam between the parties. Those rights are enforced sometimes by an action in contract, sometimes by an action in tort, like the passenger's action against the railway if negligent. But the original right of the traveller against the common innkeeper to be received as a guest and the latter's original duty to the traveller to receive him—and it is these which trouble Winfield—are in rem.1

In Roman law the special liabilities which rested on carriers and innkeepers all seem to be based on a previous undertaking: there was no * common calling'. They were essentially penal liabilities reinforcing the law of contract. Wanton refusal of an innkeeper to accept a guest or his goods might have been an iniuria^ but this outrage on personality is a breach of an ordinary ius in rem: the relation of the parties merely gave the occasion for it.

It may, however, be possible to define delict, as Winfield

1 The view expressed in the text depends on a rather special meaning being placed on the term 'generally' in the definition of a right in rem as one which avails against persons generally. Winfield is supported by Salmond,

Jurisprudencey nth ed. p. 284.

It may, however, be possible to define delict, as Winfield does tortious liability,1 as * breach of a duty primarily fixed by the law. . . towards persons generally and. . . redressible by an action for unliquidated damages'.2 Even if this description be correct, it is necessary to point out that there are great differences between the conceptions of tort and delict. Our law of tort is essentially common law, what is called the general custom of the realm, though it has been considerably modified by statute.3 The Roman law of delict is essentially statutory; all the civil law delicts, the only wrongs expressly called delicts, are based on statute, and even the numerous praetorian wrongs are all created by express enactment in the Edict. Conversely, as was bound to happen, the lawyers created most of the law of the matter. The statutes were very brief propositions which needed and received a vast amount of amplification by juristic interpretation. This origin is the more remarkable as, on the whole, statute played a less important part in the private law of Rome than with us. Moreover, in Roman law, each of the delicts has a distinct origin, separate provisions in the XII Tables, the lex Aquilia^ and the Edict, while with us the major part of the law of tort rests on the gradual extension and expansion of one origi-

1Op, cit. p. 32.

2See also Holdsworth, Jour. Soc. Public Teachers of Law, 1932, p. 41, who regards it as the breach of a duty arising from 'neither consent nor relationship'. Relationship is indeed a vague term, but what is meant

seems to be what the Romans called negotium, as in D. 12. 6. 33.

3 In the first edition the authors added the statement that our law of tort probably owes much of its flexibility to the enabling provisions of the Statute of Westminster 11,1285. But the use that was made by the Chancery clerks of the power that was conferred upon them by chapter 24 of that Statute has been the subject ofcontroversy, and itnowseems to be established that the development of the law of tort owes very little indeed to the Statute. See Plucknett, Concise History ofthe Common Law, 5th ed. pp. 28,

29; Fifoot, History and Sources of the Common Law, pp. 66 sqq, (and the literature there referred to).

nal writ, the writ of trespass, Maitland's 'fertile mother of actions'.1

If we exclude the action of detinue, much older than trespass and recuperatory in origin, which remedied certain wrongs to-day usually regarded as torts, there are very few torts which cannot be traced back to the writ of trespass or to the development of that writ and one or two others. Defamation had an independent origin, but, once adopted by the common law courts, it found a seat, eventually two, in the Case omnibus;2 similarly, the old writ of deceit, which lay for trickery in connexion with legal proceedings, gave rise to deceit on the case and the modern tort of deceit,3 and the old writ of conspiracy produced an action on the case in the nature of conspiracy.4

The gradual expansion of the law of tort thus took place in the main without the assistance of the legislature; and here a certain perhaps remote parallelism may be found in Roman law. The field of the action for iniuria underwent an extension very like that of the action for trespass. We shall deal with it later ;5 here it is enough to say that, beginning as a remedy for minor unjustified assaults, it ultimately became the remedy for a great variety of wrongs. The extension of Aquilian liability to new forms of damage followed only a slightly different technique.

Delictum strictly is a conception of civil, as opposed to praetorian law, and, apart from certain ancient actions which were almost completely absorbed into the wider

1 It has recently been pointed out that trespass in the thirteenth and fourteenth centuries was not in any way equivalent to modern trespass, but simply meant wrong or tort: S. F. C. Milsom [1954] C.L.J. 105, (1958)

DELICT AND TORT

delicts of classical law,1 there were but three: theft, including robbery, damage to property, and iniuria^ outrage on personality. But it is customary to treat under the same head a number of praetorian wrongs, and it is almost inevitable to think of these as in some way analogous to equitable wrongs. But the resemblance or analogy is very superficial. They were not created by the action of a court, but by express legislation in the Praetor's Edict. They were not adjudicated on by a separate tribunal, but by the ordinary court, in the ordinary way, giving rise to a judgement for a penalty, like a true delict. Some of them have special rules, not those of ordinary delict, especially where several persons are involved, but essentially they are the same thing, differing only in that they were created by a different mode of legislation. And the most important of them, that giving the actio doli, is closely similar to the case of the action for deceit: we shall therefore take them into account.

An interesting difference between Roman and English law is brought out by Professor R. W. Lee, in the following passage:

A man must see that he does not wilfully invade another's right, or, in breach of a duty, wilfully or carelessly cause him pecuniary loss,2

and again:

In the modern law the Roman terminology serves as a general touchstone of liability. The underlying principles of injuria and damnum injuria datum are applicable to all kinds of delict. To-day all delictual liabilities (with few exceptions) are referable to one or other of these two heads. I am answerable for wilful aggression on another's right (injuria), though it may not cause pecuniary loss. I am answerable for wilful or careless aggression on another's right which causes pecuniary loss {damnum injuria datum) .3

The liability for negligently causing* damage is therefore roughly the same in the two systems, but the place of

1Not altogether: some still existed in later times, e.g. the actio aquae pluviae arcendae.

2An Introduction to Roman-Dutch Law, 5th ed. p. 319.

3Ibid. p. 322.

iniuria, in which liability exists only for dolus, is in English law taken, not only by certain torts in which malice is a necessary ingredient, but also by various torts which are actionable on a basis of strict liability, that is to say, where the defendant is liable not merely if he acts without wrongful intent, but also if he acts without negligence. Such torts are trespass and defamation.

However, the matter is not so simple as that. The treatment of defamation is certainly strikingly different in the two systems, for in English law the plaintiff may recover substantial and even vindictive damages for a publication which was quite innocent on the part of the defendant.1 On the other hand, the more recent developments of trespass make that action normally available for the assertion of a right, and substantial damages are hardly ever given unless the trespass was wilful. Indeed it is now established that the actions for trespass to the person and trespass to goods will not lie at all unless the defendant has been guilty of either wrongful intent or negligence.2 Trespass to land is still in form a tort of strict liability; however, the Limitation Act, 1623, allows the defendant to tender amends and to disclaim any exercise of a right, and in such cases the plaintiff will not even win his action. Moreover, the action of trover, which still enforces strict liability, really puts in issue the right to possess the goods. It is obvious that the true Roman analogues of trespass and trover are to be found in the various real actions, the ret vindication the actio confessoria and the actio negatoria.

Thus the comparison between delict and tort—if we leave out of consideration negligence—takes on a new form. Iniuria is seen to correspond not to all other torts, but to the malicious torts and to trespass when accompanied

1But there is now a statutory defence for limited kinds of innocent defamation: Defamation Act, 1952, sect. 4. Moreover a mere distributor is not liable in the absence of negligence: Fizetelly v. Mudie's Select Library Ltd., [1900] 2 Q.B. 170.

2National CoalBoardv. J. E. Evans W Co., [1951] 2 K.B. 861; Fowler

v.Lanning, [1959] T Q.B. 426.

by wilful intent or aggravating circumstances, the place of simple trespass and conversion being taken, for all practical purposes, not by anything in the Roman law of delict, but by real actions of one kind or another. Viewed in this light the differences are not very great except in the one case already mentioned of defamation.

2. COMPENSATION OR PENALTY

There is a further difference. Various as are the many suggested definitions of tort,1 a frequently recurring element is the statement that the remedy for a tort is an action for unliquidated damages. Here the important word for us is * damages'. In the law of tort it is the primary aim of the action to give the aggrieved party compensation for damage wrongfully inflicted on him. It is true that in some cases there may be vindictive or exemplary damages, i.e. that in some cases the action has a definitely penal aspect, e.g. in cases of aggravated trespass to property,2 and in defamation, where the damages awarded by the jury are often obviously penal, but in principle an action in tort is an action for compensation, an action, to use Roman language, ad rem persequendam. For the Roman actions on delict we must reverse these propositions. Delict is imbued with the idea of vengeance, and the action is primarily not for damages but for a penalty, though this is usually unliquidated; the primary aim is not compensation. It is true that in some cases, indeed in many cases, there is a compensatory element, e.g. in the actio e lege Aqutlia^ for damage to property, but, in principle, even here the action is not ad rem persequen- damy but adpoenam persequendam. The distinction is fun- damental. It allies the law of delict with that of crime rather than with that of other civil obligation, so much so that Mommsen in his Strafrecht, somewhat to the confusion of his readers, hardly distinguishes between delict and crime

1The most important can be seen in Winfield's Province of the Law of Tort.

2But see now Rookes v. Barnard, [1964] 2 W.L.R. 269.