!!Экзамен зачет 2023 год / The Law of Obligations

IV. TOWARDS THE MODERN, GENERALIZED LAW OF DELICT

1. Legal theory and mores hodiernae

All in all, I think, one can understand, perhaps even sympathize with, Thomasius' emphatic rejection of any link between the Roman lex Aquilia and the modern delict de damno dato. Historically he was wrong, but under purely dogmatic auspices he certainly had a point. Though the enactment from the 3rd century в. с was still (in the terminology of Lauterbach) causa efficiens remota ex quo oritur actio,218 many new strands had been woven into it.219 The usus modernus of the Aquilian delict had absorbed Germanic customary law, some elements from canon law and medieval moral theology, but above all it had been shaped by the efforts of generations of judges and counsel: practical lawyers who made the lex Aquilia suit the needs of their time. It was thus part and parcel of a vigorous, yet flexible, jurisprudentia forensis. But the time was clearly ripe for a new theoretical framework. Contemporary tractatus, discursus, collegii and commentarii were still full of dogmatic ballast: distinctions between actiones in factum, utiles and directae, between occidere and causam mortis praebere, or between the computation of the interesse in chapter one and that prescribed in chapter three, litiscrescence and the problem of the penal nature or otherwise of the action, the requirement of corruptio rei and the principle of liberum corpus nullam recipit aestimationem — all this was more or less respectfully dragged along, but became increasingly overshadowed by the "mores hodiernae". Reference to the latter was all too often merely added, fairly abruptly, at the end of the respective section of the treatise. Legal theory had failed to provide a suitable doctrinal edifice to accommodate the law in action. This task was finally undertaken by the natural lawyers, and it was in fact the vitality of their ideas that inspired Thomasius to "pull down the Aquilian mask".220

21S Collegium tlieoretico-praaicum, Lib. IX, Tit. II, I II and II.

219Cf., once again, in particular Feenstra, fata iuris romani, pp. 323 sqq.; also Thomasius, op. cit., note 128, § LI and passim.

220He tried to show not only that the actio hodicrna was entirely different from the actio legis Aquiliae, but also that it corresponded to the precepts juris naturae vel gentium. Characteristic is the following passage: "Cum . . . conveni[at] hac parte Canonicum jus cum acquitatc naturali & moribus Gentium, sane in tantum se commendavit hac parte Jus Canonicum Germanis ut duritiam morum proprium ad acquitatem Juris Canonici reducerunt: Quo facto plane nun fuerunt apti. ut introducto, integro seculo post Jus Canonicum, Jure Justinianeo in Academias Germanise, relicia hac parte Juris Canonici aequitate, recipere potuerint irregularem illam et omni ratione destitutam duritiam legis Aquiliae" (§ LI).

On Thomasius' views on the relationship between ius civile and ius canonicum in general, see Wolter, Ius canonicum in hire civili, pp. 161 sqq.; on his natural-law theory, cf. Hinrich Ruping, Die Naturrechtslehre des Christian Thomasius und ihre Fortbildung in der Thomasius-Schule

(1968).

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2. The "natural" law of delict

The new foundations had been laid about 80 years before the publication of the "Larva", by Hugo Grotius. An obligation, he said, can arise from three sources: pactio, maleficium, and lex. Maleficium was his word for delict and he defined it in terms which have become famous:

"Maleficium hie appellamus culpam omnem, sivc in faciendo, sive in non faciendo, pugnantem cum со quod aut homines communitcr, aut pro rationc ccrtac qualitatis

facere debent. Ex tali culpa obligauo naturaliter oritur, si damnum datum cst, nempe ut id rcsarciatur."221

This was the principal and fundamental proposition of the "natural" law of delict; if someone causes damage because he culpably does what he ought not to do, he is obliged to make it good.222 Samuel Pufendorf elaborated the moral foundations of this principle. Innate in man is what he calls socialitas: he has to live, and get on, with his fellow human beings.223 The most important precept flowing from man's social nature is this: "(I.) Ut nc quis alterum laedat, utque (II.) si quod damnum alteri dederit, id reparet."224 (I.), incidentally, is the second of Ulpian's three fundamental iuris praecepta: "honeste vivere, alterum non laedere, suum cuique tribuere."225 It is based, ultimately, on the golden rule of moral philosophy: "Do as you would be done by"—a point, perhaps most clearly emphasized by Christian Thomasius:

221 De jure belli ac puds. Lib. II, Cap. XVII, I. Cf. also Inieiding, III, XXXII, 7, 9, 12 (referring to "het aengheboren rccht" (natural law).

For a discussion, sec Hans-Peter Bcndhr, "Ausscrvertragliche Schadcnsersaizpfiicht ohnc Verschuldcn? Die Argumente der Naturrcchtslehrcn und -kodifikationcn", (1976) 93 ZSS 209 sqq.; Kicfcr, op. cit., note 126, pp. 78 sqq.

Characteristic is the following passage from his De jure naturae et gentium: "Ex hisce positis facile est rundamentum legis naturalis in venire. Scilicet manifesto apparct, hominem esse animal sui conservandi studiosissimum, per se egenum, sine sui similium auxilio servari ineptum, ad mutua commoda promovenda maxime idoneum, idem tamen sacpe malitiosum, pctulans, et facile irritabilc, ac ad noxam inferendam prom turn, ac validum. Ejusmodi animali, ut salvum sit, bonisque fruatur, quae in ipsius conditioncrn hie cadunt, nccessarium est, ut sit sociabile, id est, ut conjungi cum sui similibus velit, et adversus ilios ita se gerat, ut ne isti ansam accipiant euni lacdendi, sed potius rationem habeant ejusdem commoda servandi, aut promovcndi" (Lib. II, Cap. Ill, XV).

~~4 De jure naturae et gentium, Lib. Ill, Cap. I, I; c(. further Benohr, (1976) 93 ZSS 213 sqq.; Kiefer, op. cit., note 126, pp. 83 sqq. "Ut ne quis alterum laedat" (alterum non laedere) is the more basic of the two statements; (II.) has to be added, though, because, as Thomasius (op. cit., note 128. § II) explains "|f|rustraneum hoc esset praeceptum, si post laesionem non tencrcr laeso ad satisfactioneni").

"^ D. 1, 1, 10, 1 (on which, see Malte Dicsselhorst, "Die Gerechtigkcitsdefinition Ulpians in D. 1, 1, 10 pr. und die Praecepta iuris nach D. 1, 1, 10, 1 sowic ihre Rezeption bei Leibnitz und Kant", in: Rotnisches Rccht in tier enropa'ischen Tradition, Syinposion Franz Wieacker (1985), pp. 185 sqq.; Gottfried Schiemann, "Das allgcmeine Schadigungsverbot: 'alterum non laedere1 ", 1989 Juristische Sdmliing 345 sqq.). On the precept of alterum non laedere, cf., most recently, Hans Hattenhauer, drundbegrijj'e des Biirgerlichert Rechts (1982), pp. 103 sq.; Diesselhorst, op. cit., pp. 196 sqq.; Klaus Luig, "Digesten und Dogmatik", (1986) 5 RJ307 sqq.; Eduard Picker, "Vertragliche und deliktische Schadcnshaftung", 1987 Juristenzeitung 1048 sqq.; Schiemann, 1989 Juristische Schnhmg 345 sqq.

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"Damnum alteri a nobis datum, csse resarciendum, . . . cordibus hominum mscriptum est . . . Postulat id coramunis tranquillitas, postulat acqualitas humani generis. Nemo sibi vult damnum dari, non itaque dct aliis. Quilibct vult sibi damnum ab aliis datum resarcin; rcsarciat aliis.""''

3.Fault as the basis of delictual liability

(a)Thomasius

But why should the obligation to make good the damage anse only in case of fault? This is by no means as self-evident (or "natural") as Grotius' magisterial assertion makes it sound. If the basic precept is "alterum non laederc", strict liability based merely on the fact that one person caused the other damage may well be seen to be the more appropriate consequence. This was, in fact, the point of view adopted by Thomasius. "Aequum non solum, sed et justum est, ut damnum casu datum resarciam", he postulated227 and proceeded to give the following example. While visiting a friend, my attention is drawn to a very valuable crystal glass of his. Admiringly I turn the glass around in my hands, when suddenly something entirely unforeseen happens, which frightens both me and my friend out of our wits. As a result I drop the glass, which breaks into pieces. Who has to carry the loss? I do, according to Thomasius, for without my interference (however innocent it was) the glass would still be whole:

"Sufficit, quod factum mcum dominus adversus me allegare possit. Nam si vitrum non sumsissem in manus, non etiam id fuisset fractum. Quam innocens igitur sit curiositas mca, mea tamcti est, non domini vitri."22*

Looked at merely from the point of view of the injured party, this argument is certainly not unconvincing. In a way, the person dropping the glass is indeed "closer" to the loss.229

(b) Grotius, Pufcndorf and others

Grotius, Pufendorf and most of the other natural lawyers, however, took a different perspective. Focusing their attention on the injuring (rather than the injured) party, they emphasized the duty aspect of the

221' Op. cit., note 128, § II.

227 Op. cit., note 128, § IV; "|a|equum est, quia piutn et humanum est. aliis, quibus etiam non a nobis damnum datum est, ex abundantia nostra succurrcrc et in solatium, rcrum amissarum quaedam donare; quanto magis lis. qui facto nostro damnum passi stint: Justum est, quia tranquillitas humani generis id postulat." On the notions of acqualitas and tranquillitas. in this context, cf. Benohr. (1976) 93 ZSS 220 sqq.

22f Op. cit., note 128, § IV. Cf. further § VII. but also § V.

224 Blackburn j, in the famous case of Rylands v. Fletcher [1861-73) All ER 1 at 11 appears to have had something similar in mind, for his way of arguing implies that he regarded nofault liability as the primary principle of delictual liability, negligence as an exception (cf. also A.W.B. Simpson, "Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher". (1984) 13 Journal of Legal Studies 213 sqq.). In the course of the 19th century, English courts vacillated on the question ot whether to deduce negligence based liability or no-fault liability from the maxim of "sic utere tuo ut alieno non laedas"; cf. infra, p. 1137, note 317.

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matter.23" A person can be held liable only if he has done what he ought not to have done, or if he has not done what he ought to have done. The damage, in Pufendorf's terminology, must have been "imputable" to the person who had caused the damage. Such imputation,231 in turn, required a free and moral action; and that implied, inter alia, that the acting party had to be able to foresee the consequences and to recognize the wrongfulness of what he was doing (or failing to do).232 Liability for damages required an avoidable deviation from the path of lawful behaviour—"defectus rectitudinis actionis . . . vincibilis", in the words of Christian WolfP33—and was thus based on fault. Purely accidental loss, on the other hand, had to be carried by whoever had been hit by it—entirely in accordance with the maxim "casus a nullo praestantur".234 It was the latter view that commended itself to the draftsmen of the codifications, in which the age of the law of reason culminated, and thus we find fault ifaute, Verschulden) as the cornerstone of delictual liability in the two famous general clauses of § 1295 ABGB and art. 1382 code civil.235

(c) Nineteenth-century legal science

In the course of the 19th century, the principle that liability is based on fault acquired the status of an unquestionable, axiomatic truth. For even though Grotius (and the other natural lawyers) had not referred to Roman law,236 the fault principle commended itself to the pandectists for a whole variety of reasons.237 It tied in with the basic precepts of Kant's moral philosophy238 (as adopted by Savigny,239 the founder of

21( 1 Benohr, (1976) 93 ZSS 226 sq.

231On this notion cf. from an analytical point of view, foachim Hruschka, "Imputation", in: Albin Eser, George P. Fletcher, Rechtfertigung und Entsdntldigung, vol. I (1987), pp, 121 sqq.

232On Pufendorf's concepts of an actio moralis, of imputatio and imputativitas, cf. e.g.

De jure naturae etgentium. Lib. I, Cap. V; W. Hardwig, Die Zureclniung (1957), pp. 35 sqq.; Joachim Hruschka, "Ordentliche und ausscrordentliche Zurechnung bei Pufendorf", (1984)

76 ZStrW66\ sqq.

233 Philosophia practica utiiversalis. Pars I (Francofurti et Lipsiae, 1738), § 692 ("Defectus rectitudinis actionis dicitur vincibilis, si cum evitare potuisses, modo voluisses"); § 696 ("Defectus rectitudinis actionis vincibilis dicitur in genere culpa"); § 701 ("Defectus actionis a rectitudine quoad voluntatcm et voluntatum dicitur Dolus"); § 717 ("Culpa in specie dicitur defectus rectitudinis actionis quoad intellecturn vincibilis").

234Cf. UIp. P. 50, 17, 23 in fine.

235On the fault principle in the natural law codifications, see Benohr, (1976) 93 ZSS 228 sq. (Codex Maximiliancus), pp. 229 sqq. (Prussian General Land Law), 233 sqq. (ABGB), 242 sqq. (code civil). On the most direct sources of art. 1382 code civil, cf. infra, note 248.

236Grotius had used certain passages from Aristotle's Nicomachaean Ethics as the starting point for his views on delict: cf. De jure belli ac pads. Lib. Ill, Tit. XI, II sqq.

237Analysed in detail by Hans-Peter Benohr, "Die Entscheidung des BGB fur das

Verschuldensprmzip", (1978) 46 TR 1 sqq.

23K Cf. e.g. Josef Esser, Grundlagen und Entwicklung der Gefahrdungshaftung (2nd cd., 1969),

pp.50 sqq.; Roscoe Pound, "The Role of the Will'in Law", (1954) 68 Harvard LR 1 sqq. (8, 17); Ogorek, Gefahrdungshaftung, pp. 23 sq.

239Cf. e.g. System, vol. V, pp. 1 sqq.; Obligationetinrht, vol. II, p. 295.

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the historical school of jurisprudence), it fitted the prevailing economic liberalism240 and served the interests of expanding industry and of the rising middle class:241 it was seen to provide adequate protection without unduly restricting the freedom of the individual will or hampering entrepreneurial activities.242 Apart from that, it did not prove too difficult to reconcile it with the Roman sources: Aquilian liability had been based on culpa anyway, and instances of a stricter form of liability could, somehow or other, also be made to fit the picture that was painted of a triumphal march of the fault principle through Roman law.243 The idea that there can be no liability without fault was seen to be both the product and the symbol of a high stage of cultural development. Thus, of course, it underlies the provisions on the law of delict of that apotheosis of 19th-century legal thinking, the BGB. "The fault-principle", its draftsmen argued,244

"is of central importance for the delineation of the spheres of rights within which the citizens can develop their individuality. In determining whether or how to act, one should have to take account of the legal interests of others only if the requisite forethought suggests that they may be affected. If after careful reflection an act seems to present no danger to others, one should be free to do it, and if it nevertheless causes harm to someone else's legal rights, that person must put up with it just as if it were an accident."

Strict liability had thus been (almost) entirely removed from the province of the "proper" law of delict; and since the dogmatic category of the "quasi-delicts" had become obsolete in the course of time, isolated instances of no-fault liability were thought of as anomalous and exceptional245 and remained for a long time outside the mainstream of private-law legal theory. We still have to battle today with the consequences of this ahistorical dogmatism.246

4.Purely patrimonial loss

(a)The natural lawyers

Apart from their insistence on fault, the most characteristic feature of natural law theories concerning delictual liability was their readiness to

24(1 Cf. e.g. Hem Kotz, "Haftung fur besondcre Gefahr", (1970) 170 Archiv fur die civilistische Praxis 2 sqq.

~41 Fleming, Torts, pp. 93 sqq., 302 sqq. (" 'No liability without fault' became the banner of an individualistic society set on commercial exploitation and self-help").

242 Bcnohr. (1978) 46 TR 10 sqq.

"4" Cf., in particular, Rudolf von Jhering. Das Schuldmoment im romischen Privatrecht (1867). ~44 "Protokolle", in: Mugdati, vol. II. p. 1074; [ have, in general, followed the translation

by Weir, in Zweigert/Kotz/Weir, p. 31 i.

~4э "|V]estigial anomalies of an uncivilised past when individual freedom was less esteemed than in the new era of middle class democracy": Fleming, Torts, p. 302; for Roman law, cf. Jhering, op. cit.. note 243, pp. 41 sq.

246 Cf. infra, pp. 1132 sqq.

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provide compensation for purely patrimonial loss.247 Both § 1295 ABGB and art. 1382 code civil248 reflect this way of thinking and neither of these norms therefore requires that the plaintiff's pecuniary loss must have flowed from damage to his person or property.249

(b) Germany (19th century)

Unlike in the case of fault, the pandectists did not follow suit, however. Nineteenth-century legal science predominantly advocated a return to the more limited scope of Aquilian liability in Roman law,250 and it was this view which found expression in § 823 I BGB.251 A certain number of specific rights and interests are listed, and it is only by violating one of them that a person may become liable in delict. The list232 contains life, body, health, freedom, property and "any other right"; but there

is unanimity that, whatever may be smuggled into § 823 I under cover of the "other right" clause,253 it does in any event not refer to the

247 Cf. e.g. Hans Jcntsch, Die Entwickhtng voti den EuizeltJtbestiindcn des Deliktrechts гиг Gcncralnorm ttnd die Berechtigimg finer solchen (unpublished Dr. шг. thesis, Leipzig, 1939), pp. 5 sqq.; Friedhelm Keppmann. Die neiiere Entuncklung der objektiven Tatbestande dcr §§823,

826 BGB (unpublished Dr. iur. thesis, Minister, 1959)', pp. 18 sqq.

24H The way to the famous general clause of art. 1382 led via Jean Domat, Les loix civiles, Lib. II. Tit. VIII, Sect. IV. 1; cf the analysis by Yosiyuki Noda, "Jean Domat et le Code civil frangais" (1956) 3 Comparative Law Review (Japan Institute of Comparative Law) 1 sqq.; cf also

Pothier, Train1 da obligations, nn. 116, 123. Art, 1382 code civil has been received by the Dutch legislator: art. 1401 BW. There is one interesting difference, however: the Dutch Code has "elke onregtmatigc daad" as opposed to the "tout fait quekonqtte" of art. 1382 code civil (for details of the development cf. Robert Fccnstra, Vergelding en vergoeding (1982), pp. 3 sqq.). French legai science has, however, read the requirement of wrongfulness into the notion of "fautf": cf. supra, p. 998, note 6.

249 Cf also §§ 1. 8, 10 I 6 PrALR, on which see Kiefer, op. cit., note 126. passim. He draws attention to the continuity between the doctrines of the usus modemus and the provisions of the Prussian General Land Law on the law of delictual liability. The natural-law theories merely provided the philosophical framework.

2Ы> Cf, for example, Dernburg, Pandekten, vol. II, §§ 131. 135; Hassc, Culpa, pp. 26 sq.; Vangerow, Pundekten. % 681; Windschcid/Kipp, §§ 451,"455; RGZ 9, 158 sqq. (163 sqq.); for a discussion, see Keppmann, op. cit., note 247, pp. 52 sqq. Legal practice did not always follow suit; c(. August Hefke. "Das Wcsen des damnum iniuna datum", (1886) 14 Archiv fur praktiiche Rechtswissenschaft 212 sq. Under the influence of pandectist doctrine the provisions of the PrALR (cf. supra, note 249) were also restrictively interpreted and brought into line, as far as possible, with the scope of Aquilian liability in Roman law. Cf. Kiefer, op. cit., note 126, pp. 165 sqq., 189 sqq., 224 sqq.

Ъ1 The first draft had still opted for a general clause: cf. §§ 704 sq. E I. On the discussions in the course of the traveaux preparatoires, cf Keppmann, op. cit., note 247. pp. 97 sqq.; Michael Fraenkel, Tatbestand und Ziirechnung bei § 823 Abs. ! BGB (1979), pp. 97 sqq.; Kiefer. op. cit., note 126, pp. 270 sqq. In the end, the general clause was rejected by the second commission by a bare majority often to eight votes.

2^2 Which, incidentally, can also be traced back to Grotius (cf. his InSeidim;, III, XXXIII (Van misdaed tegen 't leven), III, XXXIV (Van misdaed tcgen 4 lichaem). Ill, XXXV (Van hoon). 111, XXXVI (Van misdaed tegens goed)) and beyond him, ultimately, to Doncllus (cf. infra, p, 1086. notes 270 and 274); Feenstra, op. cit., note 248, pp. 13 sq.

253 Delictual protection of family relationships, of the right to an established and operative business, and of the general right to one's personality, to mention the three most notable examples. For an overview, cf. U.S. Markesinis, A Comparative Introduction to the German Law of Tort (1986), pp. 34 sqq. (with reproduction, in translated form, of some ot the most important cases: pp. 173 sqq.); Zweigert/Kotz, pp. 340 sqq. The "or any other right" clause

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injured party's patrimony as such. Thus, to mention three notorious problem cases, there is no liability in delict for negligent statements,254 for the negligent interruption of an electricity supply255 or for negligence, on the part of a notary, in the execution of a will.256 The German approach is based on the fear of liability "in an indeterminate amount for an indeterminate time to an indeterminate class":257 the assumption being that refusal in principle to recover pure economic loss is the only effective means of preventing an appalling variety of claims by hosts of people which would stifle commercial activities and make ordinary life intolerable.258 "Just think", exclaimed Rudolf von Jhering,2-''9

"what it would lead to if everyone could be sued in tort for gross negligence [!] as well as fraud! Anything and everything — an unwitting utterance, carrying a tale, making a false report, giving bad advice . . . answering a traveller's question about the way or the time or whatever—all this, if grossly negligent, would make one liable tor the harm even if one was in perfect good taith; if the actio de dolo were so

was, in fact, intended to refer only to absolute rights similar to ownership (as, for example, patents, copyrights, trade marks, or the right to one's image).

2r>A Unless, of course, there is a contract between the two parties concerned (in which case recovery for pure economic loss presents no problem), or unless the negligent statement leads to physical damage (for an instructive example, see Bristow v, Lycett 1971 (4) SA 223 (RAD), where the defendant's assurances relating to an elephant had turned out to be unduly sanguine).

"^ In these cases, 5 ^23 I BGB leads to strange distinctions. It the interruption of the electricity supply merely brings to a halt the machines in a factory, the owner of the factory has no claim for the resulting loss of production (pure economic loss; but was there perhaps an infringement of the plaintiff's right to an established and operative business? No, say the courts: the interference was not "direct"; ef. e.g. HGHZ 66, 388 sqq.); but if it causes the incubators in a poultry farm to cool off with the result that all the eggs arc spoilt, the plaintiff may recover his loss (s.v. injury to property; ct. BGHZ 41. 123 sqq.). For a discussion of the cable cases ct. e.g. Gimter Hager, "Haftung bei Stoning dcr Energiezufuhr", 1979 Juristetizcitung 53 sqq.; Alfons Burge. "Die Kabclbruchfallc", 1981 Jurist ische Blatter 57 sqq.; Markesinis, op. cit., note 253, pp. 112 sqq., 125 sqq. The leading English cable case is Sparta» Steel & Alloys Ltd. v. Martin & Co. (Contractors) Ltd. (1973] 1 QB 27 (CA); for a comparative analysis, see Gerold Herrmann, Znni Nachteil des Vermogens (1978). pp. 23 sqq.; for South African law, see Coronation Brick (Ply.) Ltd. v. Strachan Construction Co. (Pty.) Ltd. 1982 (4) SA

371 (D) (and the discussion in Boberg. Delict, pp. 144 sqq.).

2S<1 With the result that the will is invalid and the property of the deceased passes to the intestate heirs. In England, a negligent solicitor has been held liable to the disappointed beneficiary in a case of this kind: Ross v. Caiintcrs [1980] Ch 297. For an analysis of the situation in German law, see Remhard Zimmermann, "Lachende Doppelerben?—Erbtolge und Schadensersatz bei Anwaltsverschulden", 1980 Zeitschrift fiir das gesainte Familienrecht 99 sqq.; as far as common-law jurisdictions are concerned, ct. Owen Rogers. "The Action of the Disappointed Beneficiary", (1986) 103 SALJ 583 sqq.; cf. also Werner Lorenz, "Some thoughts about contract and tort", in: Essays in Memory of Professor F.H. Lawson (1986), pp. 86 sqq.

2S7 Cardozo CJ, in Ultramares Corporation v. Touche (1931) 255 NY 170, 174 NE 441 at 444.

2™ Cf. Weller & Co. v. Foot and Mouth Disease Research Institute [1966| 1 QB 569 at 585; generally cf., for example, Herrmann, op. cit., note 255. pp. 1 sqq.. 15 sqq. (a book written in an unusually brisk and lively style); cf. also the analysis by W. Bishop, "Economic Loss in Tort", (1982) 2 Oxford Journal of Legal Studies 1 sqq.

"VJ "Culpa in contrahendo odcr Schadensersatz bei nichtigen oder nicht zur Perfektion gelangtcn Vertragcn", (1861) 4JhJb 12 sq., as translated by Weir, in Zwcigert/Kotz/Weir, p. 266.

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extended, it would become the veritable scourge of social and commercial intercourse, conversation would be gravely inhibited, and the most innocent language would become a snare!"-'1"

(c) England

In other jurisdictions the distinction between (physical) damage to a specific corporeal asset and economic loss has, however, come in for trenchant criticism. "I can find neither logic nor common sense in this", said Lord Devlin in the leading English case on negligent statements,261 and he therefore felt

"bound to say, my Lords, that I think this to be nonsense. It is not the kind of nonsense that can arise even in the best system of law out of the need to draw nice distinctions between borderline cases. It arises, if it is the law, simply out of a refusal to make sense. The line is not drawn on any intelligible principle."

Cases of pure economic loss are thus no longer excluded, a limine, from the ambit of the English tort of negligence, but they are seen to require special treatment on policy grounds. Whether or not a duty of care was owed to the injured party in a particular situation and whether or not there was a breach of such duty of care:262 these questions are determined with more circumspection than in cases of loss arising from physical injury. In recent years, a tendency appeared to gain ground to draw the line much more liberally in favour of the injured party than in the period immediately following Hedlcy Byrne and Heller.263 Thus, a prima facie duty was said to arise if a relationship of proximity or neighbourhood exists between the parties, "such that, in the reasonable contemplation of the [alleged wrongdoer], carelessness on his part may

2Л" Cf. also, as far as negligent statements are concerned, the famous dictum by Lord Pearce: "Negligence in word creates problems different from those of negligence in act. Words are more volatile than deeds. They travel fast and far afield. They arc used without being expended and take effect in combination with innumerable facts and other words. . . .

If the mere hearing or reading of words were held to create proximity, there might be no limit to the persons to whom the speaker or writer could be liable. Damage by negligent acts to persons and property on the other hand is more visible and obvious; its limits are more

easily defined" (Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. f 1964] AC 465 (HL) at 534). 2<i< Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [l%4j AC 465 (HL); cf. PS. Atiyah,

"Negligence and Economic Loss", (1967) 83 LQR 248 sqq.; Smith, op. cit., note 8, pp. 49 sqq.. 163 sqq. The distinction between economic loss and physical damage is defended by Bruce Feldthusen, Economic Negligence (1984), pp. 8 sqq.; cf. further, as far as the United States is concerned, the recent analyses by Robert L. Rabin, "Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment", (1985) 37 Stanford LR 1513 sqq. and, more specifically on California, Justin Sweet, Deliklshaftung fur rcinen Vermb'gensschaden, Festschrift fur Max Keller (1989), pp. 129 sqq.

('~ Duty, breach and damage are the three essential requirements in English law for the tort of negligence; cf. e.g. Lord Atkin in the famous case of Donoghue v. Stevenson [1932] AC 562 (HL) at 579; Fleming, Tom, pp. 94 sqq. On the concept of duty of care, cf. the detailed (and critical) analysis by Smith, op. cit., note 8, pp. I sqq.

263 When "the horns of judicial valour' . . . were hastily withdrawn into their judicial shell" (Boberg, Delict, p. 92): cf. in particular. Mutual Life and Citizens' Assurance Co. Ltd. v. Clive Raleigh Evatt [1971] AC 793 (PC) and the comment by Fleming, Torts, p. 609.

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be likely to cause damage to [the other party]".264 It is then up to the injured party to point to some consideration which might reduce or negative this duty. This implies a remarkable shift of emphasis of judicial favour from the defendant to the plaintiff:265 recovery for pure economic loss is no longer refused, unless there is a good reason to

264 Anns v. Merton London Borough Council [1978] AC 728 (HL) at 751 sq. (per Lord

Wilberforce). The famous "neighbour test", reaffirmed by Lord Wilberforce in the Anns' case, for determining whether a duty of care exists, has been formulated by Lord Atkin in Donoghue v. Stevenson [1932] AC 562 (HL) at 580 ("one of the most oft-quoted dicta in the law of tort": Boberg, Delict, p. 53; cf. also Smith, op. cit., note 8, p. 20: "Seldom in the history of the common law has a single statement of a single judge in a single case had such a profound effect on the development of the law"): "The liability for negligence . . . is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Lord Atkin's famous dictum has been hailed, rather extravagantly, as "a seed of an oak tree, a source of inspiration, a beacon of hope, a fountain of sparkling wisdom, a skyrocket in the midnight sky" ((Mr. Justice) A.M. Linden, "The Good Neighbour on Trial: A Fountain of Sparkling Wisdom", (1983) 17 University of British Columbia LR 67). For a somewhat more critical analysis, see Smith, op. cit., note 8, pp. 15 sqq. He refers to a "judicial platitude" which "is now a liability to the law of negligence" and should be "laid gracefully to rest in the tombs of the law reports alongside the myriad of other cases which are no longer relevant in the last two decades of the 20th century." On the impact of Anns' decision, see Smith, op. cit., note 8, pp. 38 sqq.

265 Cf., in this context, also Junior Books Ltd. v. The Veitchi Co. Ltd. [1983] 1 AC 520 (HL) and the conclusions drawn by J.C. Smith, "Economic Loss and the Common Law Marriage of Contracts and Torts", (1984) 18 University of British Columbia LR 95 sqq.; but cf. also Peter Cane, "Economic Loss in Tort: Is the Pendulum out of Control?", (1989) 52 Modem LR 201 sqq. ("constructively" overruled?; p. 203). For further comments, from a comparative perspective, see Werner Lorenz, "Verkehrspflichten zum Schutze fremden Vermogens?" and Peter Schlechtriem, "Deliktshaftung des Subunternehmers gegenuber dem Bauherm wegen Minderwert seines Werks—Eine neue Entscheidung des House of Lords", in: 25 Jahre Karlsruher Forum (1983), pp. 48 sqq., 64 sqq.; B.S. Markesinis, "An Expanding Tort Law—The Price of a Rigid Contract Law", (1987) 103 LQR 357 sqq., 376 sqq., 385 sqq.; Lorenz, Essays Lawson, pp. 95 sqq.

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allow it; rather it appears to be allowed unless special (secondary) policy considerations can be adduced to refuse it.266

(d) Germany (20th century)

This is exactly the approach that has recently been advocated, in the tradition of natural-law ideas, for the German law of delict. The fundamental precept, says Picker,267 is alterum non laedere. It applies, in principle, to physical damage as much as to pure economic loss. Secondary policy considerations do, however, require a limitation of liability, for unlimited liability would lead to socially unacceptable consequences. Hence the decision of the legislator to list a number of specific rights and interests, one of which must have been infringed by the tortfeasor. But this decision must not be taken to imply that pure economic loss, per se, is unworthy of protection. It is merely intended to limit the number of potential creditors. What matters, according to the BGB, is that the range of those who may possibly be entitled to claim damages must be determinable abstractly and ex ante. Provided

266 In the meantime, however, "a strong reaction against this tendency has . . . prompted a return to the traditional caution against generalized principles, if not a repudiation of the idea that a new start, untrammelled by past experiences, was now in order": Fleming, Torts, p. 162, referring, inter alia, to Governor of the Pcabody Donation Fund i>. Sir Lindsay Parkinson &Co. Ltd. [1985| AC 210 (HL) and Candlewood Navigation Corporation Ltd. v. Mitsui OS.K. Lines Ltd. /The Mineral Transporter) [1986] AC 1 (t*C). Later cases also show a tendency to return to the earlier view. In Leigh & Sillcti'iin Ltd. v. Aliakmon Shipping Co. Ltd. [1986|2AU ER 145 (HL). the fear of "opening the floodgates so as to expose a person guilty ot want of care to unlimited liability to an indefinite number of . . . persons" (at 154G) prompted the court to dismiss the action (on the Aliakmon case, see Markesmis. (1987) 103 LQR 387 sqq. (". . . an opinion that at times display* an inadequate consideration tor the repercussions of the decision, opts for a solution that is clearly utopic, and unforgivably misses the opportunity to bring some order into the prevailing chaos")). The same tendency is revealed in the trilogy of 1987 cases, viz. Smith v. Liitlewood Organisation Ltd. [1987] 1 AC 241 (HL) (where Lord Goff opined that too general a notion of reasonable foresight or proximity could not "accommodate all the untidy complexities of life" (at 736A)). Curran v. Northern Ireland Co-ownership Housing Association Ltd. [1987] 2 All ER 13 (HL) (where their Lordships felt themselves "entitled to be wary of effecting any extension ot the principle appplied in

Anns v. Merton London Borough" (at 18D)) and Yuen Kun-yeu v. Attorney General of Hong Kong [ 1987] 2 All ER 705 (PC); cf now also D&F Estates Lid. v. Church Commissioners for England

[1988] 3WLR 368 (HL); on which sccJ.N. Duncan Wallace, (1989) 105 LQR 46 sqq.; Cane, (1989) 52 Modern LR 200 sqq. In view of these constantly changing judicial sentiments, one can certainly subscribe to the statement that "the English law on the recoverability of mere economic loss is today possibly in greater confusion than ever before" (Dale Hutchison, "Negligent Statements: Why the Reluctance to Impose Liability? ". (1978) 95 SALJ 519); cf. also Smith, op. cit., note 8, p. 49 ("The one thing which is clear about the topic of economic loss is that the principles regarding recovery are obscure") and the concluding remark by Cane, (1989) 52 Alodern LR 214: "Given this conceptual morass, it seems unlikely that the law of tort liability for economic loss is yet in its final form. The pendulum is swinging wildly and is yet to find a regular rhythm."

2bl 1987Juristenzcitung 1041 sqq., 1047 sqq.

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