Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

356 PARTICULAR DELICTS AND TORTS

This use of the notions, furtum possessions, and 'special property', is curious in view of the fact that our law habitually treats theft as an inroad on possession, while the Roma«n law regards it primarily as an inroad on ownership. Mr Justice R.S. Wright1 observes that while 'the ordinary conception of theft is that it is a violation of a person's ownership of a thing. . . the proper conception of it is that it is a violation of a person's possession of the thing accompanied with an intention to misappropriate the thing*. The difference is a natural, one may almost say a necessary, result of the difference in the architecture of the two systems of law. Our common law, at least in relation to moveables, has always thought in terms of possession rather than in those of ownership. As Sir Frederick Pollock says,2 ' The Common Law never had any. . . process at all in the case of goods for the vindication of ownership pure and simple. So feeble and precarious was property without possession, or rather without possessory remedies, in the eyes of medieval lawyers, that Possession largely usurped not only the substance but the name of Property', a piece of history which explains the term 'special property' and the practice in indictments of 'laying the property' in someone. Roman law on the other hand had a wellmarked scheme of proprietary remedies before possessory remedies were invented by the Praetor. It is, however, to be noted that in the second century there are signs of a conception offurtum as an inroad on possession very like our own. Scaevola says3 thatfurtum is an inroad on possession, that where no one was in possession there can be no furtum and that this is why there can be no furtum of the goods of a hereditas on which no heres has as yet entered. There are other texts which apply the same notion to the same case. But it does not seem that this is the original view and it is not that which predominates in the

sources: the reason was that no one owned the vacant hereditas}

But neither our system, essentially based on possession, nor the Roman law, at any point applies the notion of possession with any strictness: the Roman law has many cases quite inconsistent with it, which we shall not discuss. The best illustration perhaps is that of the finder of lost goods. The Roman law made no attempt to apply the notion of possession to the case. It is clear that the possession was lost.2 A finder was a thief if he took the thing in bad faith, i.e. not in the belief that it had been abandoned by the owner or belonged to no one,3 and this attitude made it unnecessary to enquire where the possession was, an enquiry which has had such curious results in our law.4 Our own law purports to apply the notion of taking out of possession to goods found in the street: it appears to hold that, for the purpose of the law of trespass and larceny, they are still in the possession of the owner. Actually they are not in anybody's possession, and to attribute possession to the owner is really only to say that for such cases the doctrine of taking out of possession is not to apply. It might be interesting to enquire how the law would deal with a case in which the owner drops a thing in the street, and a dishonest person picks it up, and so steals it, in fact takes the possession, and then fearing that he is observed, drops it again: is the possession restored to the owner, as against any new thief? If a bailee loses a thing in the street, does he still possess or has he restored the possession to the owner ?

There is another difference in the matter of finding. As we have seen, a finder who took the thing in bad faith was, in Rome, a thief. In our modern law this is not so unless

See also Hannah v. Peel, [1945] K.B. 509; Hibbert v. McKiernan, [1948] 2 K.B. 142; City ofLondon Corporationv. Appleyard, [1963] 1 W.L.R. 982.

PARTICULAR DELICTS AND TORTS

there was at the time of finding some reason to think the owner could be found,1 probably a better rule but not easy to apply. In our law it does not seem to be quite clear whether a finder with a clue who takes intending to find the owner and restore the thing but afterwards changes his mind and applies it to his own purposes has committed theft or not. On the cases he has not: it is conversion after innocent taking and this cannot be theft, which involves a wrongful taking.2 But it is said by Mr Justice R.S. Wright3 that such a person should be treated like a bailee who breaks bulk and thereby determines the bailment. Such a rule would do no injustice, but it is extending a highly artificial doctrine, itself invented to get the law out of a difficulty, in a way which does not logically follow. For the possession under the bailment rested on the consent of the owner, which might well be regarded as destroyed by the act of breaking bulk, but there is nothing of this sort in the other case. We have to suppose a tacit consent of which neither party is in any way conscious. The point does not seem to be directly discussed in Roman texts, but since a pledgee could commit theft,4 it does not seem that the jurists would have seen any difficulty in the fact that the first taking was innocent.

Since taking out of possession played a very small part in the Roman law, and, in particular, since most of those holders whom we call bailees, and endow with possession, had no possession in Roman law, but only detention (custody), e.g. borrower, depositee, carrier, the Roman lawyer escaped some of the difficulties which have arisen in our law. If a servant intercepted and made away with property he had received for his master, this was simply furtumJ There was no separate offence of embezzlement and no

1 Reg. v. Preston (1851), 5 Cox C.C. 390.

2See Kenny, cii. p. 278.

3Pollock and Wright, cit. p. 185.

need for it. The depositee or borrower who makes away with the thing commits furtum^ simply.1 The only important practical case resembling our larceny by a bailee is that of the pledgee, who certainly has possessio. But the fact of his having possession is nowhere treated as creating a difficulty.

Modern writers say that the Roman owner, usufructuary, etc. had the actio furti by reason of their positive interesse in the thing stolen. Others, such as the commodatariuSy had it by reason of a negative interesse; they were interested in the safety of the thing because they would be liable over to the bailor if the thing were stolen. A bailee such as a depositee, who was not so liable, had not the action.z In English law all bailees have possession and so can prosecute for theft; and The WinkfieldJ* which was decided in trover, held that the bailee's possession availed him even if he could not be liable over.

As with us, land could not be stolen,4 though some of the earlier lawyers took a different view.5 But they never found any difficulty about * things savouring of the realty'.6 Our own lawyers probably would not have experienced this and many other difficulties if the punishment for theft in older times had been less cruel. And, the notion of inroad on possession not being really part of Roman law, there was no question of the necessity of separation both in time and intent, i.e., an act 'not continuated but interpolated'.7 If a man cut and immediately carried away crops, this was furtum*

The normal theft in both systems is secret taking, called, by the Romans, subreptio. But there may be dishonest taking without subreptio, e.g. by taking advantage

1G. 3. 195 sqq.\ Inst. 4. 1.6 sq.\ D. 47. 2. 40, 48. 4, etc. These texts deal with cases short of making away with the thing—afortiori this is theft.

2See Jolowicz, De Furtis, pp. xxviii-lv.

36O PARTICULAR DELICTS AND TORTS

of a mistake. This kind of thing was often furtum and has been called by commentators furtum irnproprium. But the circumstances in which one may have applied to one's own purposes, fraudulently, what was the property of another are infinitely various and not all of them are theft or furtum. Both the Roman and the English systems ultimately reached what is at any rate a principle. If in our law the ownership passes as the result of the transaction the act is not larceny, though it may be the offence of obtaining by false pretences or possibly no more than an actionable fraud.1 Similarly in the Roman law of the Digest if the ownership passes it is not furtum, though it may be the offence of stellionatus or perhaps only a ground for the actio dolt? But the earlier history of the two systems is very different. Our law, up to quite modern times, dealt so severely with thefts that the judges invented all sorts of artificial doctrines in order to exclude from the notion of larceny, involving liability as a felon, many acts of fraud which were normally at least on the same level. But the Roman law, at least in historic times, had no such severity: a penalty of twice, or in some cases four times, what was stolen, is in no way excessive. And, on the other hand, the earlier Roman conception of furtum seems to have been extraordinarily wide. Owing to the rather haphazard way in which the Digest was compiled, much evidence of this wide conception of furtum is contained in it, though it seems to be anachronistic. Thus we several times get the proposition that knowingly to receive money not due is furtum.4 On such a general doctrine almost any fraudulent acquisition would be theft. But the actual rule of later law was more precise. A type of case prominent in the texts

1Kenny, cit. pp. 342 sqq.

2D. 47. 2. 43. 3; D. 47. 20. 3. 1; cp. D. 47. 2. 43. pr.

3Sir J. Stephen, General View ofthe Criminal Law, pp. 71 sq., speaks of

'extravagant severity', 'the horror of the old system'. See also Radzino- wicz, History of English Criminal Law, vol. i. passim.

4 D. 13. 1. 18; 47. 2.43. 2.

362 PARTICULAR DELICTS AND TORTS

was held that a maid-servant in a house, her master being in the garden and within call, had a 'special property' in her master's coat, so that in an indictment for robbery it was correct to lay the property in the servant.1

2.NEGLIGENCE

(a)GENERAL

It was long a matter of controversy whether our law had such a tort as negligence, or whether the law was not more accurately stated by the proposition that in some torts negligence was a minimal requirement. The view prevailed however that negligence is an independent tort as well as an element in certain other torts.2 Difficulty has been caused by the ambiguities which hang about the word. Does it mean a state of mind or a course of conduct ? Does it cover inadvertent omissions as well as inadvertent acts ? Is the inadvertence as to the act or omission itself, or as to a given consequence ?3 To these questions it may perhaps be answered, notwithstanding the language of some of the books, (i) that we are concerned with conduct, not with states of mind; that, from this point of view, negligence means failure to observe the standard of conduct of a reasonable man in the circumstances as a commonly observant person would have seen them; (ii) that in our law (as in the Roman) failures to act do not as yet cause a liability for resulting damage unless there existed, aliunde, some

consequences. But there is another question: Does negligence refer to the conduct alone or does it include its

1 R.v. Harding (1929), 46T.L.R. 105; 21 Cr. App.R. 166546 L.Q.R.

3 See also, as to negligence and recklessness, Turner, Cambridge Law Journal, v (1933)* PP- 6 l W-

consequences? So stated, the question seems absurd. Negligence is what a man does or fails to do, not what happens as the result of his conduct. It would be more logical to call the tort * damage' (as the Roman law did), though no doubt such names as negligence, deceit, etc., have convenience and tradition on their side. For the gist of the action is the damage: if the point were material, which it is not likely often to be, prescription would run from the time of the damage, at any rate where no breach of contract is involved, and not from that of the act.1

Our books and cases are full of a certain duty to take care, relative to a certain person. We are told that, to constitute the wrong, there must be (i) a duty to take care, as against the plaintiff, (ii) breach of that duty, and (iii) resulting damage.2 It is clear that this * duty to take care' is a part of our law, though it may be doubted whether it is very logical or usefuP Since breach of it gives in itself no right of action, for there must be damage, it would seem better to speak ofa duty not to damage by careless conduct, a duty owed to everyone, subject to questions of contributory negligence, remoteness, etc. Indeed the 'duty, relative to the person affected, to take care' seems to be little more than another name for a particular kind of remoteness.*

However this may be, it is clear, on the one hand, that the Roman law had not this conception of duty to take care, and, on the other, that there was no such general proposition as that damage negligently caused gave a right of action. What we do get is a liability based directly or indirectly on the lex Aquilia for damage to property,

1Wiixfield, Tort, 7th ed. p. 803.

2See, e.g. (but it can be found everywhere), Winfield, cit. pp. 168 sqq.;

on the history of the requirement, Winfield, 34 Columbia Law Review

Co.Ltd.{The fVagonMound\[\()6i]k.Q.^%%. For discussion see Buckland, 51 L.Q.R. (1935), pp637 sqq. For a different view see Excursus: Duty of Care (p. 367, post).

364 PARTICULAR DELICTS AND TORTS

caused without justification, and it may be caused either wilfully or negligently. That is far from a general liability for the consequences of negligence, though it is not so narrow as it looks. On the one hand, where property was damaged, much consequential damage could come into account, compendiously described as idamnum emergens* and *lucrum cessans',1 which we need not illustrate. On the other hand, the Praetor (or possibly only later authority) extended the liability to what was not exactly property, e.g. the body of a freeman; though here, too, the Roman law, like our own apart from statute, gave no remedy where the unfortunate man was killed.2 This limitation is all the more remarkable as in a neighbouring region another line is taken. Where a thing is thrown from a house and a freeman is killed there is a penalty of 50 aurei, formally an actio popularis, parallel to our penal actions, but with certain preferences as to who might bring it.3 But all this leaves it much narrower than our law of negligence. It is true that there are texts which say that there is an actio in factum for cases to which the lex Aquilia does not apply.4 On the face of it this might extend the liability for negligent or wilful damage indefinitely, even where no physical thing was affected, but there is no text which suggests such a case. It probably refers to cases where the thing is not damaged but is rendered unavailable, e.g. money is thrown into the sea, in which there certainly was an action in factum.5 On another point we must regard Roman law as more favourable to the plaintiff. A Roman master had

1G. 3. 212; Inst. 4. 3. 10; D. 9. 2. 22. 1, etc. The terms are riot technical.

2At any rate the texts nowhere deal with any Aquilian liability where a

freeman is killed. See D. 9. 1. 3; 9. 2. 7. />r.

3 Buckland, Text-book, p. 598. The civilians of the seventeenth and eighteenth centuries merged this action with that on the lex Aquilia so as to justify the admission—in any case inevitable—of an action for negligent killing of a freeman. See 38 H.L.R. 499.

4 D. 9. 2. 33. 1.

5 Inst. 4. 3. 16 inJin.; D. 9. 2. 27. 21.