Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
.pdf366 PARTICULAR DELICTS AND TORTS
The Aquilian action gave compensation and, it might be, more, for the plaintiff was entitled to value the thing at its highest value within a certain time before the act was done.1 It is obvious, however, that often the thing will not have materially changed in value within the year (for destruction of slaves or cattle) or month (for any other damage), so that in effect the whole content of the claim is in many cases only compensation. And, by machinery which we need not consider, it barred in fact, though not formally, any action, contractual or quasi-contractual, for the same damage. Yet it was contemplated as a penal action and had all the characteristics of a penal action. It was cumulative where more than one were concerned.* It died with the wrongdoer.3 This might cause injustice, as it did, until recently, in the case of personal injuries in our law, since there was or might be no other remedy. There might of course be an alternative contractual or similar action and this would not ordinarily be affected by the death. The action was for double damages if the liability was denied, but that of itself does not make an action penal: it was equally true of the action to obtain conveyance of what had been left by legacy in a certain form in classical law and to certain favoured beneficiaries in later law.4
1 D. 9. 2. 2. pr.; 9. 2. 27. 5. This was certainly always true of damage falling under cap. 1; Dr D. Daube, 52 L.^.R. p. 253, thinks that cap. 3 awarded a penalty equal to the damage materialising within thirty days after the accident. This may well be true, but by the classical period the penalty was fixed on lines analogous to those laid down in cap. 1.
2D. 9. 2. 11. 2 in fin.
3G. 4. 112. Any enrichment of the heres out of the facts, a thing which might occur, was recoverable from him, and this, at least in later law, by
the Aquilian action itself. |
D. 9. 2. 23. 8. |
4 Inst. 4. 6. 23; G. 4. |
9. |
DUTY OF CARE |
367 |
EXCURSUS:1 DUTY OF CARE
Buckland took very seriously his attack on the Duty to take Care,2 and so I could not without impiety exclude all reference to it from this edition. All the same, I consider it ill-founded. As my own defence of the concept is not very accessible,3 I summarise it shortly here.
It is admitted on all hands that the actual technique of the duty to take care is not found in Roman law. What seems to take its place is a distinction, barely discernible in the classical texts, but sufficiently clear in the Institutes,* between physical damage caused negligently to the person or property of the victim, and mere pecuniary damage, that is to say, financial loss caused to him without any physical damage to the person or property. The example given of the latter is negligently to release a slave without injury to the slave, but with the result that his owner loses his value. It seems that by the time of Justinian at least and probably by the end of the classical period actions would be given almost as a matter of course for physical damage caused negligently. It seems also pretty clear that in the classical period actions for pecuniary damage caused negligently were given only sporadically, and probably in each case only if the Praetor was satisfied that the facts, if proved, ought to give rise to a cause of action. It looks as though liability for merely pecuniary damage was, by the time of Justinian, generalised, though there is a slight suggestion that it was limited to cases where although no specific object was damaged, yet the pecuniary damage to the plaintiff was in respect of some particular object.5 Finally it seems pretty clear that there was no general liability for damage caused by a mere
1 |
By Professor Lawson. |
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2 |
See also his later attack in Some Reflexions on Jurisprudence, p. i n . |
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3 |
See 22 Tulane L.R. (1947), pp. 111-130. |
4 J. 4. 3. 16. |
5 |
See Windscheid, Lehrbuch des Pandektenrechts, ii, § 455. |
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368 PARTICULAR DELICTS AND TORTS
omission to act. Where there is liability it is because the defendant has created a danger which can only be averted by positive steps on his part, and he has failed to take those steps, or again where he has accepted the duty to take care of a potentially dangerous thing, and has failed to do so.1
The position in English law, since the decision in Donoghue v. Stevenson^ seems to be that there are the same distinctions as in Roman law between liability for positive acts and liability for mere omissions to act. As in Roman law one may almost certainly say that there is a general liability for physical damage caused to persons or property by a positive act, subject however to an important exception in the case of a vendor or lessor of real property.3 It is also clear, as in Roman law, that there is no general duty to take positive steps, however reasonable, to avert damage which threatens another person, and where, exceptionally, there may be liability in Roman law, there is probably liability in English law also. On the other hand the treatment of mere pecuniary damage caused by a positive act seems to differ from the Roman treatment.* There are here three different schools of thought.
The first says that there is never any liability for carelessly causing merely pecuniary damage. Either liability is strict, as in trespass to land, conversion, and defamation, or it is dependent upon proof of intent to harm, or know-
1 D. 9. 2. 27. 9.
* [1932] A.C. 562.
3 Cavalier v. Pope, [1906] A.C. 428; Winfield, Tort, 7th ed. pp. 312-
315- .
4 Since Professor Lawson wrote this Excursus the House of Lords have decided, in Hedley Byrne & Co. Ltd. v. Heller £ff Partners Ltd., [1963] 3 W.L.R. 101, that a duty of care does exist where one person seeks information from another person who possesses a special skill if the first person places reliance on the other's skill and the other knows or ought to know of this reliance. Thus the former rule that there was no liability at common law for a negligent misstatement in the absence of a contractual orfiduciaryrelationship (unless perhaps physical damage had been caused thereby) has been abrogated; and what follows in the text in this Excursus must now be read with this in mind.
DUTY OF CARE |
369 |
ledge of some kind. It must be conceded to the defenders of this position that it is extremely hard to find cases establishing such a liability, and almost all of them are suspect on one ground or another. The second view, which Buckland might have taken had his attention been drawn to the specific point in issue, is that no real distinction can be made between physical and pecuniary damage, and that so long as the damage is not too remote and there is no possibility of raising the defences of contributory negligence or volenti non fit iniuria, there is no more reason why a careless person should escape liability for pecuniary than for physical damage. If faced with the question why in that case there is no liability for negligent interference with trade relations, of the type which, if malicious, would give rise to an action for conspiracy, the partisans of this view would probably say that for good or bad reasons the law has marked off certain territories occupied by well known heads of liability into which the law of negligence must not enter; though I find it not at all easy to understand this position if, with Sir Percy Winfield,1 they assert that it is possible to get rid of the effect of Derry v. Peek2 by saying that the case was decided, not in negligence, but in deceit^ for if you take that line, there is no reason whatever why you should not get rid of the effect of all the decisions on conspiracy, injurious falsehood, and malicious prosecution, by reframing the action in each case as an action of negligence. It is perhaps not unfair to say that this position is far less defensible than the former.
The third school of thought, to which I belong, holds that this particular type of damage, that is to say, merely pecuniary damage caused carelessly, is, like damage caused by mere omission to act, a field peculiarly appropriate to the technique of the Duty of Care. In other words, one is liable for negligently causing pecuniary damage if one owed a duty to take care to avoid damage in one of a
1 Text-book of the Law of Torts, 5th ed. s. 114 (the editors of the 7th edition do not make such an assertion). 2 (1889), 14 App. Cas. 337.
3 But cf. Hedley Byrne & Co. Ltd. v. Heller, ante, at p. 107.
3 7 ° PARTICULAR DELICTS AND TORTS
number of particular types of situation. Those situations certainly cannot be generalised, and I admit that they are as yet very rare, just as the situations in which there is a duty to act positively are rare; but there are one or two cases where such a duty has been established,1 and from certain hypotheses put forward injudgements2 it seems that others may be added to them. In other words, in this field, as in that of pure omissions to act, it will be necessary, and it seems it will be possible, for the plaintiff to start proceedings by satisfying the judge in limine, as Sir Percy Winfield has it,3 that there was a specific duty to take reasonable care to avoid the damage. Elsewhere I believe I have shown that, except in Germany, where the Civil Code rigorously excludes liability for merely pecuniary damage caused negligently,4 all foreign systems utilise, overtly or in a disguised form, this Duty of Care.
(J?) CONTRIBUTORY NEGLIGENCE^
The Romans had not exactly a law of contributory negligence, i.e. they did not think of the matter quite in that way. It is true that modern writers have invented and attributed to the Romans a theory of what they call ' culpa compensation',6 into which they have attempted to force the Roman texts. It is an unsuitable name in any case, since it suggests set off" {compensatio\ a quantitative estimate of the negligence on each side, or, at best, our Admiralty rule rather than the common law rule recently discarded. And it completely falsifies the Roman view. They seem to have applied here a theory of causation, no
1E.g. Wilkinson v. Coverdale (1793), 1 Esp. 75.
2E.g. by Lord Roche in Morrison Steamship Co., Ltd. v. Greystoke Castle
(Cargo-owners), [1947] A.C. 265, at p. 280. See now Hedley Byrne £ff
Co. Ltd. v. Heller & Partners Ltd., ante p. 368, n. 4.
3 |
Tort, 7th ed. p. 169. |
4 |
This is the effect of §§ 823-826 of the B.G.B. |
5 |
For English law generally see Glanville L. Williams, Joint Torts and |
Contributory Negligence (1951). |
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6 |
E.g. Pernice, Sachbeschddigungen, p. 62. |
CONTRIBUTORY NEGLIGENCE |
37 I |
doubt a theory of causation which is not satisfactory, but that is not exceptional in theories of causation.1 The Roman view was that the negligent or intending person was liable for the harm if he caused it but not if some intervening agency prevented his act from producing its effect. Many applications of this principle are recorded which have nothing to do with contributory negligence. I stab a slave with what is clearly a mortal wound, but, before he dies, A cuts his throat or an earthquake overwhelms him. These agencies have killed him; my attempt to kill has been frustrated: I have only wounded him, with resulting effects, not indeed very important, on the measure of damages.2 The same is true ifthe intervening event is something done by the victim or by the plaintiff—not necessarily the same. If I injure a slave so that he will certainly die unless attended td and a doctor is called in who neglects the case or treats it wrongly so that the patient dies, it is the doctor who killed, not 1.3 This is the act of a third party. If his master undertook the treatment and neglected him, it is he who killed, not the wounder.4 This is the act of the plaintiff, the master. If I mortally wound a slave and he destroys himself to avoid the agony, I have presumably only wounded him.
Contributory negligence is illustrated from another point of view. If a man crosses a field where people are lawfully practisingjavelin throwing and is hit and wounded, there is normally no action.5 If I am cutting off a branch of a tree and shout a warning and you nevertheless pass under and are hurt, there is no liability.6 Perhaps it may
1 Pernice indeed treats culpa compensation, which for him leads to a cancellation of claims on both sides, as a consequence of the difficulty of deciding which party caused the damage.
2 D. 9. 2. n . 3; 9. 2. 15. 1. 9. 2. 51. pr. takes the opposite view, perhaps per incuriam, the wish to date the killing back to the infliction of the mortal wound prevailing over the need for an uninterrupted causation.
3 D. 9. 2. 7. 8, 8. pr.; 9. 2. 52. pr. |
4 Arg. 9. 2. 30. 4. |
5 D. 9. 2. 9. 4. |
6 D. 9. 2. 31. |
372 PARTICULAR DELICTS AND TORTS
be said here that there was no negligence in me at all. There is, however, at least an apparent difficulty. The result ought logically to be the same whether my original act was intentional or merely negligent. If I did not cause the result in the one case I did not in the other. In the javelin case indeed we are told that if seeing the man crossing I intentionally throw at him, I am liable. But this would be true on any theory. I was the direct cause. I was the proximate cause. I had the last chance. His presence was the causa sine qua non: my act was the causa causans. But it would seem that neither Roman nor English law would allow the doctrine of contributory negligence to operate so as to relieve an intentional wrongdoer of liability.
It seems that the Romans reached a result very like our own without any conscious analysis. A text1 states the case of a barber shaving a slave in a place where people were playing ball; a player hit a ball rather hard and it hit the barber's hand and the slave's throat was cut as a result; we are told that whichever party (the player or the barber) was negligent, to be determined on the facts, is liable lege Aquilia. The text ends with the remark that one who sits down to be shaved in such a place has himself to blame for what happens. This may be either contributory negligence or an application of the maxim 'volenti non fit iniuria'. There is perhaps the same fusion of the two notions in the maxim:z * Quod quis ex culpa sua damnum sentit non intellegitur damnum sentire.' But the rule as to willingness to take the risk is more clearly illustrated in other texts, e.g. where a man engages in a contest he accepts the ordinary consequences,3 a filius who permits himself to be treated as a slave has no action for the iniuria, though his father may have,4 just as, in our law, in the case
1D. 9. 2. 11. pr.
2D. 50. 17. 203. The text is corrupt. As to contributory negligence in Roman law, see Pollock, cit. 13th ed. Appendix D.
3 D. 9. 2. 7. 4. |
* D. 47. 10. 1. 5. |
CONTRIBUTORY NEGLIGENCE |
373 |
of seduction of a woman, her consent debars her |
from |
recovering damages for the trespass, but does not preclude her employer's or parent's action for seduction.
Our expression 'contributory negligence', as applied to the law before 1945, was an unfortunate one—quite apart from the fact that the word 'contributory' was misleading because much more than a contribution was required of the plaintiff before he disentitled himself to recover. It was unfortunate because it accepted as the main basis of its operation the view that the plaintiff was being punished for his own negligence, whereas among many competing theories there is attractive authority for the view that an important, if not the important, ground was that the damage was not caused by the defendant, and therefore he could not be held liable.1 The Roman texts have no expression corresponding to 'contributory negligence'. They do not indeed discuss the topic at all fully, but it is clear that breach of causal nexus between the culpa of the defendant and the damage done is the guiding principle in the matter.2
The Law Reform (Contributory Negligence) Act, 1945, has substituted for the old practice that of reducing the plaintiff's damages (and of course those of a counterclaiming defendant) 'to such an extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage'. Our law is thus brought into line with that of most other countries.
(c) NECESSITY
Necessity appears in Roman texts as a defence in an action for damage, e.g. where a ship was driven without fault into a position in which the only hope of avoiding wreck was by cutting the cables of another ship,3 or again, where it is
1 |
See Salmond, Law of Torts; 13th ed. p. 45 5, and British Columbia |
Electric Railway Co., Ltd. v. Loach, [1916] 1 A.C. at p. 727. |
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2 |
See the texts cited, Buckland, Text-book, p. 587. 3 D. 9. 2. 29. 3. |
374 PARTICULAR DELICTS AND TORTS
necessary to pull down a building to prevent a fire from destroying one's own house.1 How far this goes in our law is not quite clear, but it is settled that the same rule applies as to checking a fire.2 It might be said that there is no culpa here: no more is done than a reasonable man would do, and the case is analogous to self-defence, recognised in both systems of law.3 But in Roman law self-defence was no reply in itself to a third person who was damaged by my act,4 and the English law seems not very clear on this point.5 In Roman law it does not appear on the texts that there was any means of obtaining compensation for the harm thus lawfully caused, even where a house was pulled down. The English law on the point is uncertain.6 It should be added that these points have, properly speaking, nothing to do with negligence (though they have with damage to property), for the act is done with full advertence both to the act and to its consequences. Both in Roman law and in ours contributions (general average) are obtainable by the owner of maritime property sacrificed in the interests of the whole venture (levandae navis causa\ but that is pure borrowing by way of the law maritime and therefore irrelevant to our purpose.
(</) ACTS AND OMISSIONS
In principle, liability under the lex Aquilia^ for damage to property, required a positive act. There is nothing harsh or anomalous about that. In ordinary circumstances no one is under a legal obligation to act unless he has done something to put himself under an obligation to act. In Roman law a surgeon who had operated at once came
1 |
D. 9. 2. 49. 1. |
2 Winfield, Tort, 7th ed. p. 49. |
3 |
D. 9. 2. 4-5. pr.; |
h.t. 45. 4; Winfield, cit. pp. 43-49. |
4
5
6
&• 9- 2. 45- 4-
Winfield, cit. pp. 46, 47. Winfield, cit. pp. 51, 52.
ACTS AND OMISSIONS |
21S |
under an obligation to give or arrange for after-treatment.1 If I lit a fire, I was under a duty to take precautions to see that it did not spread, to the damage of some other person.2 The English law seems to be the same. A statute may impose an active duty, e.g. of fencing a danger spot, and, if this is for the protection of the public, one who is damaged by the results of neglect of this duty will have an action.3 But in general there is no duty to act.4 Omission will not create a liability for negligence unless there was some relation, or earlier act, which imposed a duty to take active precautions. There is a clause in the Blirgerliches Gesetzbuch which can be understood so as to impose a duty to act wherever 'gute Sitte' requires it, 5 and is in fact so understood by some writers,6 but not apparently in practice.
There are, however, cases which seem to create a certain difficulty in Roman law. A lights a fire lawfully and instructs B to watch it; B does not do so and it burns C's house. The texts make B liable, though he has done nothing, but do not state any clear principle of liability.7 It is possible to put the case on a basis of assumption of liability, but the texts do not do so.8 Certainly, if a mere passer-by, noticing that thefirewas approaching the boundary, watched it for a while and then went on his way, no one, except possibly those of Stammler's way of thinking, would hold him liable.9 But suppose, not contentinghimself
1 D. 9. 2. 8. pr. |
2 D. 9. 2. 27. 9; h.t. 30. 3. |
3See Winfield, «'/., pp. 318-333.
•See Giles v. Walker (1890), L.R. 24 Q.B.D. 656.
5 Sect. 826. Schuster, Principles of German Civil Law, p. 338, confines the breach of the rule to acts, but the German hardly justifies this.
6E.g. Stammler, Lehre von dent richtigen Rechte> p. 302.
7D. 9. 2. 27. 9; Coll. 12. 7. 7.
This is not surprising in view of the frequency with which the jurists omit to give reasons for their decisions. In fact B took upon himself a duty of care.
9 But there is a strong tendency nowadays to make it a criminal offence to refuse assistance to persons in danger, provided that one could act without danger to oneself (cf. French Penal Code, art. 6$). This automatically, in a law like the French, makes the defaulting party civilly liable also.