!!Экзамен зачет 2023 год / The Law of Obligations

be of such a character that nobody should have been able to divine that he could possibly be led astray by crooks.192 Ulpian and Pomponius even held a conductor liable for damage caused by guests or members of his household, merely on account of his having admitted "such persons" onto his property:

". . . placet, ut culpam ctiam eorum quos induxit praestet suo nomine, etsi nihil convenit, si tamen culpam in inducendis admittit, quod tales habuerit vel suos vcl hospitcs."193

(b) Custodia

Then there were the cases where the debtor was responsible for custodia;194 and custodia, as a matter of course, covered theft by servants of the debtor and, at least according to Marcellus and Ulpian, also damnum iniuria ab alio datum.195 Closely related was the strict liability of nautae, caupones and stabularii based on "receptum",196 where, too, it did not matter whether the destruction, loss or damage of the customer's property had come about as a result of the sea carrier's, innkeeper's or stablekeeper's own fault, of the fault of their employees or of some other incident that could not be regarded as vis maior. Most significantly, perhaps, there was the famous fragment "Qui columnam transportandam",197 where a conductor operis was held responsible for his own fault as well as for that of his employees. Again, we are dealing here with vicarious liability stricto sensu, albeit in a contractual context.

(c) Delictual and quasi-delktual remedies

If we turn our attention to delictual and quasi-delictual remedies, we find a similarly casuistic approach. In late classical jurisprudence an actio legis Aquiliae in factum was occasionally granted against a person whose servants had damaged someone else's property. According to general principles of Aquilian liability, the master had to have been at fault (usually, again, in the form of culpa in eligendo). This appears to be confirmed by Proc./Ulp. D. 9, 2, 27, 11, where it is stated: ". . . si

192 Iul. D. 13, 6, 20: "Argcntum commodatum si tam idoneo servo meo tradidisscm ad te perferendum, ut non debuerit quis aestimare futurum, ut a quibusdam malis hominibus deciperctur, tuum, non meum detrimentum erit, si id mali homines interccpissent." Cf. MacCormack, (1971) 18 RIDA 531 sq.; Knutel, (1983) 100 ZSS 381 sqq.

mD, 19, 2, 11 pr.;cf. Мауег-Maly, Locatio condmtio, pp. 200 sq.; MacCormack, (1971) 18 RIDA 540 sq.; Frier, (1978) 95 ZSS 258 sqq.; Knutel, (1983) 100 ZSS 401 sqq.

194 Cf., in general, Fritz Schulz, "Die Haitung fur das Verschulden der Angestellcen im klassischen romtschen Rccht", (1911) 38 GrimhZ 9 sqq.

195D. 19, 2, 41; cf. Knutel, (1983) 100 ZSS 411 sqq. Generally on custodia cf. supra, pp. 193 sqq. The prevailing opinion, according to which custodia was an objective (strict) liability, has repeatedly been challenged, most recently by Rene Robaye, L' obligation de garde. Essai sur la responsablite contraauclie en droit remain (1988).

196Cf. supra, pp. 514 sqq.; also Schulz, (1911) 38 GrtinhZ 41 sqq.

147 Gai. D. 19, 2, 25, 7; on which sec supra, pp. 399 sqq.

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noxios servos habuit, damni eum iniuria teneri, cur tales habuit."198 The phrase is not, however, unambiguous. The master is held responsible for the resulting damage—resulting, in this case, from the fact that his servants had burnt down a house he had hired—"by reason of having such slaves"; and it is easy to see how this formulation may be taken to establish a fiction or presumption of culpa as the basis of the master's liability, rather than to require actual proof of fault. A strict vicarious liability, in turn, was imposed by the edict in the case of the actio de deiectis vel effusis:199 the habitator200 was held responsible, for reasons of public policy, if something was thrown out or poured down from his house and it did not matter whether he himself, a member of his household, a free servant or anybody else who happened to be in the house had actually done the throwing out or pouring down.2"1 "[CJulpa enim penes eum [sc: qui inhabitat] est", Ulpian added in order to justify the habitator's — as opposed to the owner's—liability: without thereby, however, introducing a requirement of personal fault.202 But, obviously, this sentence was bound to lend itself to misinterpretation; Justinian himself must have seen it as an expression of the fault-based nature of quasi-delictual liability—if he did not insert it for this very purpose.203 Similarly ambiguous was the position concerning furtum vel damnum in navi aut caupone aut stabulo.2"4 Again, sea carriers, innkeepers and stablekeepers were strictly liable if their customer's property was damaged or stolen by one of their employees. Again, however, this liability was rationalized (by the compilers?) in terms of a fault presumption: ". . . cum enim . . .

aliquatenus culpae reus est, quod opera malorum hominum uteretur, ideo quasi ex maleficio teneri videtur."205 The reus is not blamed for actual negligence in the selection of his staff, but for the mere fact that he availed himself of the services of mali homines.206

198 Substantially genuine; cf. MacCormack, (1971) 18 RIDA 536 sqq.; Knutel, (1983) 100 ZSS 392 sqq., 396 sqq. But see also Frier, (1978) 95 ZSS 261 sq. and also Ulp. Coll. XII,

144 Cf. supra, pp. 16 sq.

3""Ulp. D. 9, 3, 1, 4. 21 p

The praetor merely said "Undo in eum locum, quo vulgo iter fict vel in quo consistctur, deiectum vel effusum quid erit . . .": Ulp. D. 9, 3, 1 pr.; and see Paul. D. 9, 3, 6, 2: "Habitator suam suorumque culpam praestare debet."

2(12 MacCormack, (1971) 18 RIDA 547 sq. "Thejustification made by thejurists is related to the fact that the habitator not the dominus is the person made liable. The habitator is liable because he is the person in charge of the household and is therefore in a position to take the measures necessary to . . . organiz[e] his household in such a way as to prevent things being thrown or poured out"; Kaser, RPr II, p. 428.

203Сf., for example, Wittmann, Korperverletzung, p. 64.

204Supra, pp. 16 sq.

205Gai. D. 44, 7, 5, 6.

21)6 Cf. further the liability of publicani for the acts of slaves which they had used in order to collect taxes: Ulp. D. 39, 4, 1, 6; Gai. D. 39, 4, 2; Ulp. D. 39, 4, 3 pr.; MacCormack, (1971) 18 RIDA 551; Barlow, op. cit., note 187, pp. 21 sq.

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3. Vicarious liability in South African law

Looking back at Voet's bold assertion of vicarious liability for wrongful acts by employees within the scope of their employment, we can now appreciate that here, as so often, a general principle was arrived at by a process of generalization and abstraction on the basis of the massive casuistry contained in the Roman sources. The focal point for the formulation of the new doctrine, in this instance, was the idea of selection: ". , . cum his [sc: patre dominove] imputandum sit, quod negligentium aut malignorum operas ministerio certo aut officio addixerint", in the words, again, of Voet.207 The servant's delict was attributable to the master on account of the fact that he had chosen him to do the job at hand. By and large, the principle of strict vicarious liability managed to establish itself in Roman-Dutch law,208 but there were also those who drew attention to and criticized the false generalization of the Roman sources upon which it was based.209

South African courts, when they were first confronted with the issue, did not delve deeply into the sources, whether those of Roman law or of Roman-Dutch law.210 They tended to accept what fitted in with the corresponding English doctrine, which was much more familiar to them. The wage liability for acts beyond the scope of employment was hardly ever mentioned211 and passed into complete oblivion. At the same time the master's liability in full for acts within the scope of employment was unhesitatingly accepted, sources of the ius commune merely being used, selectively, to support Anglo-American authorities. "The law on the subject is thus broadly stated by Story on Agency . . .", reads a highly characteristic passage by De Villiers CJ, in the 1874 decision of Gifford v. Table Bay Dock and Breakwater Management Commission,212

"[t]he principal is liable to third persons for the torts, negligences, and other malfeasances or misfeasances and omissions of his servant or agent in the course of his employment, although the principal did not authorize or justify or participate in, or indeed know of such misconduct, or even if he forbade the acts or disproved of them. 'In all such cases', he adds, 'the rule applies respondeat superior; and it is founded upon public policy and convenience; for in no other way could there be any safety to third persons in their dealings either directly or indirectly with him through

207Commentarius ad Pandectas, Lib. IX, Tit. IV, X.

208Barlow, op. cit., note 187, pp. 73 sqq.

209Van der Keessel, Praeleaiones iuris hodierni, ad Gr. 3, 1, 34 (vol. IV, p. 25); cf. also Van der Linden in his notes on Voet, Commentarius ad Pandectas, in: Gane, The Selective Voet, vol.

II, p. 607; for further details, see Barlow, op. cit., note 187, pp. 61 sqq.

2 ° For an analysis, cf. Barlow, op. cit., note 187, pp. 84 sqq. ("A study of the cases on the subject before the hearing ofMkize v. Martens in May 1914, indicates that the courts have failed to make any deep study of a very complex question, yet in Mkize v. Martens, the Appellate Division regarded the matter as definitely settled by precedent, and held that there was no need to go into the old authorities": p. 91). The decision of Mkize v. Martens is reported in 1914 AD 382.

*n But cf. Estate Van der Byl v. Swanepoel 1927 AD 141 at 153 sq. (per Kotze JA). 212 (1874) 4 Buch 96 at 114.

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the instrumentality of agents . . .'. Story then proceeds to point out. . . that similar principles зге recognized, though not with the same distinctness, by the Roman law (see also Pothier on Obligations, nn. 121 and 453). The passage from the Digest, which has already been quoted, clearly supports the same view."

This passage, incidentally, is the famous fragment Qui columnam.213 The particle "que" in "eorumque" must have been understood disjunctively by the Chiefjustice. Despite occasional criticism,214 South African courts have continued to rely on English precedents, particularly when they were called upon to determine the concept of a servant and to define the scope of the employment.215 The doctrine of common employment, according to which a servant may not sue his master for the negligence of a fellow-servant, has, however, been rejected, after a thorough examination of Roman-Dutch, English, American, Scottish and modern continental authorities, by Kotze CJ,216 Lord De Villiers' great counterpart in the Transvaal.

4. The position in modern French and German law

In the rather lengthy quotation from Gifford's case reference was made to D. 19, 2, 25, 7 and to a passage in Pothier's Traite des obligations.217

Both had by that time exercised a significant influence on liability for others in continental European law, though in completely different directions. Pothier, of course, became the intellectual father of the strict vicarious liability of art. 1384 code civil, which states concisely that one is responsible, not only for the injury which one causes by one's own action, but also for that which is caused "par lefait des personnes dont on doit repondre".218 Digesta 19, 2, 25, 7 (the "que" interpreted conjunc-

213Ulp. D. 19, 2, 25, 7.

214Cf. Van den Heever, Aquilian Damages, pp. IV sqq. ("[I]n a highly industrialised country [such as England] . . . it may be expedient that the employer's responsibility for damage caused by his workmen or machinery should be co-extensive with these artificial extensions of his own activities and personality. . . . (But] in a young and undeveloped country such as South Africa was at the time, application of the principle of unlimited liability was calculated to stifle initiative and entrench monopoly"). Paul Boberg comments: "This is no doubt very true, but it can have no application today, when we pride ourselves on being the most highly developed and industrialized state in Africa. Certainly we are now as industrialized as was nineteenth-century England. The adoption of this doctrine has thus enabled our law to move with the times and to reflect the social requirements of the age in which we live": "Oak Tree or Acorn? Conflicting Approaches to Our Law of Delict",

(1966) 83 SALJ 170.

21r> For details, see Barlow, op. cit., note 187, pp. 95 sqq., 120 sqq.

216Lewis v. Salisbury Gold Mining Co. (1894) 1 OR 1 sqq. {"the best [judgment] ever delivered in this country on the question of vicarious liability": Barlow, op. cit., note 187, p. 907).

217Traite des obligations, nn. 121, 456.

218On the origin of this provision (Domat and Pothier), cf, most recently, Watson, Failures, pp. 6 sq., 15 sqq.; on its application cf. Zweigert/Kotz, pp. 380 sqq.; Lawson/Markesinis, pp. 167 sqq. The (strict) vicarious liability of the employer is based, traditionally, on the principle of "Ex qua persona quis lucrum capit, cius factum praestare

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tively), on the other hand, was one of the key sources upon which 19thcentury German legal writers relied in order to reject the notion that one person could be held strictly responsible for the acts of others.219 "No liability without fault" was one of the great axioms of pandectist doctrine,220 and the Roman texts tended to be read in such a way as to conform thereto. By the time the BGB was drafted the idea of vicarious liability had gained some ground,221 but ultimately it managed to establish itself only in the contractual context. According to § 278 BGB, a debtor is responsible for the fault of those whom he employs in performing his obligation, to the same extent as for his own fault.222 But when it came to the law of delict, the forces of tradition largely had their way: strongly supported—for obvious reasons—by lobbyists representing the interests of trade, industry and agriculture.223 Nationalistic sentiments, strangely, also played their role. The principle enunciated in art. 1384 code civil was regarded as entirely alien to traditional "German" notions of justice and fairness.224 The rather extensive way in which the French courts applied their regime of vicarious liability did not inspire the German observers with much confidence either.225 A master, horribile dictu, had even been ordered to pay damages because his servant had sounded a trumpet at night and thus disrupted the neighbours' tranquillity! In the end, liability for the unlawful acts of employees under the BGB was thus made to hinge on culpa in eligendo vel custodiendo vel inspiciendo; the less traditionally minded proponents of the French system merely managed to achieve a reversal of the onus of proof.226 Despite this concession, § 831 BGB has

debet" (Ulp. D. 50, 17, 149); cf. Knutel (1983) 100 ZSS 441 sqq. On the justification of vicarious liability in English law cf P.S. Atiyah, Vicarious Liability in the Law of Torts (1967), pp. 15 sqq., 22 sqq.

219 Cf, for example, Windscheid/Kipp, § 401, n. 5.

2211 Cf supra, pp. 1034 sq.

221 For details of the development cf. Hans Hermann Seiler, "Die deliktische Gehilfenhaftung in historischer Sicht", 1967 juristmzeitung 525 sqq.; Gunther Niethammer,

Entwicklung der Haftung fur Gehitfenhandein unter besonderer Berucksichtigung der dogmengeschichtHchen Grundlagen der deliktischett Gehilfenhaftung in der neueren Privatrechtsgeschichte thesis

(unpublished Dr. iur. thesis, Munchen, 1973), pp. 7 sqq., 78 sqq.; Ogorek, Gejcihrdungshaftung, pp. 68 sqq. Cf. also "Motive", in: Mugdan, vol. II, p. 16 ("one of the most disputed questions of modern German common law").

222This was justified (and thus reconciled with the general culpa principle) on the basis that a person concluding a contract undertakes that, whatever he has promised, shall be carried out diligently, no matter by whom; thus, if he chooses to employ another person in performing his obligation, he is liable for that person's fault. Cf Enneccerus, Verhandlungen des 17. deutschen Jumtentages, vol. II (1885), pp. 102 sqq., and also "Motive", in: Mugdan, vol. II, p. 16.

223Seiler, 1967 Juristenzeitutig 527 sqq.

224"Protokolle", in: Mugdan, vol. II, p. 1094.

225Seiler, 1967 Juristemeitung 528.

226§ 831 BGB thus reads: "A person who employs another to do any work, is bound to

compensate for any damage which the other unlawfully causes to a third party in the performance of this work. The duty to compensate does not arise if the employer has exercised the necessary care in the selection of the employee, and, where he has to supply

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turned out to be a major source of embarrassment. Countless ways have been developed by both courts and legal writers to bypass this unsound rule:227 the rather extravagant encroachment of contractual remedies on the law of delict, for instance, a characteristic feature of the modern German law of obligations, is based largely on the desire to make available, for the benefit of the injured party, the stricter rule of

§278 BGB.228

III. QUASI-DELICTUAL LIABILITY

1.The fate of the Roman quasi-delicts

Noxal liability did not depend on fault; a Roman paterfamilias was liable for damage caused by children and slaves in his power, as well as by (domesticated) animals belonging to him, but his liability was effectively limited by virtue of the option of noxae deditio that was available to him. Other instances of strict liability in classical Roman law, as we have seen, were thrown together sub titulo "obligationes quasi ex delicto":229 the action against ajudge qui litem suam fecit and the actiones de deiectis vel effusis, de posito vel suspenso and de damno aut furto in navi aut caupone aut stabulo. But although all four remedies were incorporated into the ius commune, none of them can be said to have prospered. By the time of the usus modernus pandectarum, the strict liability of the iudex qui litem suam fecit had largely fallen into disuse; ". . . moribus hujus aevi non tenetur judex qui per imperitiam male judicavit", as Groenewegen reports.230 He paints a somewhat sombre picture of the

apparatus or equipment or to supervise the work, has also exercised ordinary care as regards such supply or supervision, or if the damage would have arisen notwithstanding the exercise of such care."

227For an overview, from a comparative point of view, cf. Zweigert/Kotz, pp. 374 sqq.; B.S. Markesinis, A Comparative Introduction to the German Law of Tort (1986), pp. 349 sqq. (for the most important cases—in translation see—pp. 391 sqq.).

228Cf. also the observation in Zweigert/Kotz/Weir, p. 299: "The English jurist Pollock stated that the strict liability of a master for the torts of his servants, such as exists at Common Law, was justified by the consideration that if it did not exist a 'huge expansion of implied, i.e. fictitious contracts, to no great advantage of either law or conscience, would ensue'; the development of German law has vindicated this prediction to the hilt"; cf. also the speculation by Sir Frederick Pollock in (1916) 32 LQR 227 ("Denial of the 'superior's' responsibility in tort would surely have led to a luxuriant and perplexed growth of contracts implied in law, for which the substance of justice would have been no better from any point of view, and the science of law much the worse").

229Cf. supra, pp. 16 sqq. For a list of further instances of liability without fault, see Bienenfeld, op. cit., note 123, pp. 13 sqq., 45 sqq,

230De legibus abrogatis, Inst. Lib. IV, Tit. V, Princ; cf. also, for example, Vinnius,

Itistitutiones, Lib. IV, Tit. V, pr., 2 sq.; Lauterbach, Collegium theoretico-practimm, Lib. L,

Tit. XIII, III. Writers in earlier centuries tended to be puzzled as to why a medical doctor, who operated badly or gave his patient the wrong medicine, was liable under the lex Aquilia ("Imperitia quoque culpae adnumeratur, veluti si medicus ideo servum tuum occiderit, quod eum male secuerit aut perperam ei medicamentum dederit": Inst. IV, III, 7) whereas ajudge was held responsible, for his lack of skill, merely quasi ex delicto. Donellus, Cotnmentarii, Lib. XV, Cap. XLIII, XIII, proposed to resolve the discrepancy by classifying the liability

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competence of judicial officers of his time: ". . . manifestum esse videtur, quod imperitissimi quoque Iudicandi raunus ambiant", he stated, the implication being that it would have been both unfeasible and inappropriate to hold them liable for giving wrong decisions merely because they did not know the law. Most importantly, however, disadvantaged litigants were no longer taken to require this specific form of protection, for they could seek redress by lodging an appeal against the incorrect decision: ". . . iniquitati sententiae occurrendum est remedio appellationis."231 The actio de posito vel suspenso, too, was obsolete by the end of the 18th century. It had never served to compensate an injured party for his damages but had merely imposed a penalty on persons endangering safe traffic.232 With the rise of the modern territorial states and their administrative organs, the maintenance of public safety became increasingly a concern of the State authorities and the remedy in private law was thus effectively superseded by recourse to the police, who could be asked to take appropriate steps to avert the danger:

". . . hoc casu nulla actio hodic instituatur, scd potius ab со, cui cura aedium et platearum forique publici commissa est, simpliciter mandatum inhibitoriale impetretur."233

of the iudex qui litem suam fecit as (genuinely) delictual, Franciscus Hotomanus,

Commetitarius in quatuor liberos Itistitutionum (Lugduni, 1588), Lib. IV, Tit. Ill, III, the other way round, by treating the imperitia liability of the medicus as another instance of an obligatio quasi ex delicto. For further details, see Hochstein, Obiigatioties, pp. 38 sqq., 64 sqq.

Vinnius, Instituttones, Lib. IV, Tit. V, pr., 1, and many others. The possibility of an appellatio had already led Bartolus as well as the humanists to suggest qualifications and restrictions of the liability of the iudex qui litcm suam fecit; cf. Hochstein, Obligationes, pp. 44 sqq., 67 sqq.; as far as the usus modcrnus is concerned, cf. pp. 80 sqq.; cf. also Coing, p. 517. The iudex always remained liable for dolus; cf, today, § 839 II BGB (and the exception contained in § 839 III BGB), on which see "Motive", in: Mugdan, vol. II, pp. 460 sq.

The parallel to the liability of medici, incidentally, continued to be stressed (despite the fact that no "appeal" was available as an alternative remedy against a botched-up operation); cf, for example, Lauterbach, Collegium theoretico-practicum. Lib. L, Tit. XIII, III: "Hodie, sicut nee Medicorum errata, ita nee Judicantium imperitiam in jus vocari . . ."; lack of skill in doctors was scarcely ever brought to court and hence the somewhat cynical saying that for them it is permitted to kill with impunity. Cf. supra, p. 1028, note 198 and also Watson,

Failures, pp. 65 sq.

232Ulp. D. 9, 3, 5, 6; Ulp. D. 9, 3, 5, 11. Cf. also Bowden v. Rudman 1964 (4) SA 686 (N) at 691E-F: ". . . it is clear that the object was to prevent harm being done by anything that might fall, and that the law did not wait till the harm was done but provided punishment if the harm were possible."

233Justus Henning Boehmer, Doctrina de actionibus (Halae Magdeburgicae, 1789), Sect. II, Cap. XI, § XVIII; Gluck, vol. 10, pp. 411 sq.; cf. also Windschcid/Kipp, § 457, n. 4. The actio dc posito vel suspenso was, however, carried forward into Roman-Dutch law—cf. Grotius, Inleiding, III, XXXVIII, 5 sqq.; Voct, Commetitarius ad Pandectas, Lib. IX, Tit. HI, VI—and has even been discussed (though not applied) in the South African case of Bowden

v.Rudman 1964 (4) SA 686 (N) at 690E sqq. In this case Caney J argued that the action had lost its penal character and was available only to recover damages for injury actually done (i.e. where the things lodged or hung had fallen down). But what, under these circumstances, is its relationship to the actio de deiectis vel effusis? Cf. Voet, loc. cit., on the

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The actio de damno aut furto adversus nautas, caupones, stabularios was obliterated, for all practical purposes, when it lost the specific sting attached to it: recovery oi double the value of the thing stolen or damage done.234 Once it had become available for no more than simplum,235 it did not give the customer anything which he could not obtain by means of the receptum liability of nauta, stabularius or caupo. In certain respects, in fact, it was more advantageous for him to proceed under the receptum rather than the quasi-delictual remedy.236

A slightly more valiant struggle for survival was put up by the actio de deiectis vel effusis; in some half-forgotten corner of both Austrian237 and South African law,23" indeed, it still exists today.239 In Germany it passed relatively unmolested through usus modernus240 and pandectism241 and even made its way into the first draft of the BGB.242 In the end, however, the legislator decided to jettison the remedy.243 A special edict dealing with injuries caused by pouring down from or throwing out of houses may have been appropriate under the conditions prevailing in ancient Rome; but in 19th-century Germany police regulations and the provisions of the penal code could be relied upon to prevent people from emptying the contents of their chamber-pots over the heads of unsuspecting passers-by.

2. Delictual and quasi-delictual liability

If, therefore, the four quasi-delicts have left hardly any traces in modern legal science, the systematic niche carved out for them in Justinian's Institutes, too, was ultimately bound to wither away. Throughout the

one hand, Bowden v, Rudman 1964 (4) SA 686 (N) at 692D-E ("The situation is analogous to that of the thing thrown out or poured out upon a passer-by") on the other. In Bowden v. Rudman, incidentally, the actio de posito vel suspenso was held not to be applicable to the case of a gate opened outwards across the pavement. In the headnote (p. 686) this action is confused with the actio de effusis vel deiectis.

234Ulp. D. 4, 9, 7, I; Ulp. D. 47, 5, 1, 2.

235Groenewegcn. De legibus abrogatis. Digest. Lib. IV, Tit. IX, 1. ult. § 1; Voet,

Commentarius ad Pandectas, Lib. IV, Tit. IX, X.

236Thus, for example, the actio quasi ex delicto was limited to theft or damage caused by employees. Liability under the receptum was much wider; it also covered, for example, theft committed or damage caused by other guests or passengers; cf. Ulp. D. 4, 9, 1, 8; Gai. D. 4, 9, 2; Pomp./Ulp. D. 4, 9, 3 pr. For further details, see Gliick, vol. 6, pp. 140 sqq.;

Т.Е. Donges, The Liability for Safe Carriage of Goods in Roman-Dutch Law (1928), pp. 24 sqq.

237§ 1318 ABGB, On the survival of the actio de deiectis vel effusis in a generalized form (art. 1384 code civil, last alternative) cf. infra, p. 1142.

238Gane, The Selective Voet, vol. II, p. 595 (who remarks with classic understatement that

the Digest title 9, 3 "cannot be said to have been of leading importance in South African law"); N.J. van der Merwe, P.J.J. Olivier, Die onreqmatiqe daad in die Suid-Aftikaanse reg (5th ed., 1985), p. 496.

239It does, of course, no longer lie for duplum (as it did in Roman law: Inst. IV, 5, 1).

240Stryk, Usus modernuspandectarum, Lib. IX, Tit. Ill, §§ 1 sqq.; Gluck, vol. 10, pp. 409 sqq.

241Windscheid/Kipp, § 457, 1; Bienenfeld, op. cit, note 123, pp. 45 sq.

24~ §§ 729 sqq. E 1; cf. "Motive", in: Mugdan, vol. II, pp. 448 sq. and the discussion by Joseph Unger, "Die actio de dejectis et effusis im deutschen Entwurfe", (1891) 30 Jhjb 226 sqq.

ш "Protokolle", in: Mugdan, vol. II, p. 1123.

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centuries scholars hypothesized inconclusively about the distinctive characteristic of quasi-delicts, as opposed to delicts.244 Some authors, rather vaguely, suggested "culpa aliqua" as the basis of quasi-delictual liability,245 others referred to wrongs by construction of law where "waerelick geen misdaed en is"246 or of "factum omne ex quo qui convenitur, . . . quod sit maleficio fmitum"247 or "quod maleficio est proximum".248 Some jurists of the usus modernus tried to argue that liability, in the one case, is based on the fault of the defendant himself, in the other on culpa imputativa.249 Others argued that only the intentional infliction of harm gives rise to delictual liability, whereas obligationes quasi ex delicto are characterized by negligence ("culpa propria").25" Occasionally, the category of the quasi-delicts was also regarded as a kind of legal ragpicker which could be used conveniently to accommodate all instances of noiWquasi-contractual liability, that did not fall under either the lex Aquilia or the actio iniuriarum. Thus, in particular, liability under the actio de pauperie was often said to be of a quasi-delictual nature.251 But whatever new turn the discussion took, it became increasingly apparent that its practical significance was rather limited. Liability, as a rule, was based on fault, and as long as this remained the fundamental precept (as it did, particularly prominently, in the 19th century),252 it mattered little whether an action was classified as delictual or quasi-delictual.253 Isolated instances of no-fault liability, insofar as they still existed,254 tended to be regarded as rather

244For a detailed discussion, sec Hochstein, Obligationes, pp. 35 sqq., 48 sqq., 71 sqq.,

94 sgq., 129 sqq.; cf. also Going, pp. 395 sq.

24э Uirich Zasius, as quoted and analysed by Hochstein, Obligationes, pp. 50 sqq., cf. also

pp.73 sq.

24''Grotius, luleiding, HI. XXXVIII, 1.

247 Donellus, Commetttarii, Lib. XV, Cap. XLIII, V.

24K Vinnius, Instiiutiones, Lib. IV, Tit. V.

249Cf. supra, p. 19, note 107.

250Cf. supra, p. 19, note 108; Lautcrbacb, Collegium tkeoretica-practicum. Lib. XLVII, Tit. I, VIII; Coing, p. 395. But what was the position of the actio legis Aquiliac in this scheme of things? According to Lautcrbach, loc. dt., it had to be classified as an obligatio ex delicto fvero) despite the fact that it was available in cases of dolus and culpa.

251Cf. Grotius, Melding, III. XXXVIII, 10; Van Leeuwen, Censura Forensis, Pars I, Lib. V, Cap. XXXI, 2; for a detailed analysis cf. Hochstein, Obligationes, pp. 86 sqq.; cf. also Van

der Merwe, op. cit., note 39, pp. 27 sq.

252Cf. supra, pp. 1034 sq.

253Cf. supra, p. 20.

254Or were not brought in line with the principle of "no liability without fault" too; cf., for example, as far as the actio de pauperie is concerned, Van dcr Linden in his annotations on Voet, as translated by Gane, The Selective Voet, vol. II (1955), pp. 533 sq.; Parker v. Reed (1904) 21 SC 496 at 501 sq.; O'Catlaghan v. Chaplin 1927 AD 310 at 375 sqq. (per Wesscls JA); cf. also Van dcr Merwc, op. cit., note 39, pp. 29 sqq.; on the actio dc deicctis vcl effusis cf., tor example, Voet, Contmentarius ad Pandectas, Lib. IX, Tit. Ill, I (". . . cum culpa ipsius поп in dejectione consistat, scd in eo poties, quod aut malignos, aut ncgligcntes intra domus suae vel coenaculi septa receperit, quosjure suo repellerc poterat, quorumque ideo culpam

tenetur praescare"). Cf. further Justus Wilbclm Hedemann, Die Fortschritle des

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anomalous and antiquated elements of the Roman heritage, as ius singulare based on "positive"255 rulings of the praetor rather than on any principles with wider implications.256 By the time the BGB was drafted the dogmatic category of "quasi-delict" was regarded as defunct and useless; it did not, therefore, commend itself for reception into the new code. Nor did any of the traditional instances of no-fault liability, except one: the actio de pauperie. Even this rather peripheral remedy, however, was cut down in scope, for the notion of strict liability was preserved only with regard to damage done by so-called "luxury animals".257 But apart from that, the principle of no liability without fault reigned supreme and the law of delict in the BGB, in that respect, neatly reflects the prevailing doctrine of 19th-century German legal science.258

IV. NEW INSTANCES OF NO-FAULT LIABILITY

1. Legislation in the 19th century

Yet, while the leading luminaries of the pandectist school of thought were engaged in their study of Ulpian and Papinian,259 the world around them changed dramatically. The Industrial Revolution led to an unprecedented "acceleration of history" and brought with it untold new sources of risk and losses.261' From the 1830s monstrous machines called railway engines261 steamed through the German territories,

Zivilrechts im XIX. Jahrhundert vol. I (1910), pp. 86 sq.; Biencnfeld, op. cit., note 123, pp. 100 sqq.; Hans-Peter Benohr, "Zur ausservertraglichcn Haftung im gemeinen Recht", in:

Festschrift fur Max Kaser (1976), p. 705.

255"Motive", in: Mugdan, vol. II, pp. 449; cf. also p. 453.

256SecBienenfeld, op. cit., note 123, pp. 23 sqq.; Ogorek, Gefi'hrdungshaftung, pp. 48 sqq. and, as a particularly blatant example, the cursory reference to obligationes ex variis

causarum figuris by Savigny, Obliqationenrecht, vol. II, pp. 330 sq.

257§ 833, 1 BGB.

258Cf. supra, pp. 1034 sq.

259Cf. the criticism by Lorcnz von Stein, Zur Eisenbahnrechts-Bildung (1872), p. 15.

260For some modern figures, see Andre Tune, "Introduction", in: International Encyclopedia of Comparative Law, vol. XI, 1 (1983), nn. 1, 72 ("The accident age"). According to him, in the United States alone 115 000 persons die every year as a result of accidents, more than 11 million suffer temporary disablement, and more than 5 million others suffer some kind of injury. During the Second World War, the toll of industrial accidents was nearly as heavy as the toll of war itself in countries such as the United Kingdom and the United States. For more facts and figures, see P.S. Atiyah, Accidents, Compensation and the Law (3rd ed., 1980), pp. 18 sqq.; on motor accidents, see also Andre Tune, "Traffic Accident Compensation: Law and Proposals", in: International Encyclopedia of Comparative Law vol. XI, 14 (1983), n. 1.

261For a notorious definition of a railway enterprise (in no fewer than 111 words, all crammed into a single sentence) cf. RGZ 1, 247 (252). On the eve of the opening of the first Prussian railway line a pastor in Berlin implored his congregation to keep away, for the sake of their eternal salvation, from these "infernal dragons". On the hostility and opposition which railways and motorcars at first aroused in England, see JR. Spencer, "Motor-Cars and the Rule in Rylands v. Fletcher: A Chapter of Accidents in the History of Law and Motoring", (1983) 42 Cambridge LJ 69 sqq. Some (from a modern perspective) rather amusing highlights of the campaign against the use of these dangerous machines: in 1932 the

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