!!Экзамен зачет 2023 год / The Law of Obligations

Unjustified Enrichment

19th century adopted this view408 and so it could not fail to impress the draftsmen of the BGB.409 Modern comparative research, as well as historical investigation, demonstrates, however, that there is nothing axiomatic or intrinsically self-evident about the rule expressed in §818IIIBGB."°

the enrichment". This principle, Dawson comments, is enforced "with an unrelieved rigor and disregard of consequences that would be hard to find elsewhere in modern German law" (p. 272).

408Gluck, vol. 13, pp. 152 sqq.; Vangerow, Pandekten, § 625, Anm. 3; Windscheid/Kipp,

§424, 1.

409"Protokolle", in: Mugdan, vol. II, pp. 1181 sqq.

410Cf., in particular, the trenchant criticism by Dawson, (1981) 61 Boston University LR 271 sqq., 306 sq. who, after pointing out that the surviving net gain as the measure of enrichment "had emanated not from some 'most holy' sanctum of the legal order [cf, for instance, the remark by Otto von Gierke, quoted supra, p. 835, note 6] but from the private studios of Pandectist authors", proceeds to argue that the pandectist authors and their followers gave a basic misdirection to the German law of restitution. Their aim "was the

promotion of virtue by giving honesty, based on ignorance, both reward and protection". Thus they concentrated attention and concern "on the 'innocent1 recipients of unjustified gain". Their view, however, is fundamentally flawed and one-sided for "it took no account of the other side in what has for centuries been conceived as a two-sided relation— enrichment acquired at the expense of another. . . . An encompassing principle of exoneration that ensures against any loss all those who do not know that the gain they derived and acquired at another's expense will have to be restored, therefore seems (to an unsympathetic observer from abroad) to show a basic though well-meaning confusion of thought" (pp. 302, 306, 314).

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1. Delict and crime

When a person injures another by an act of reckless driving, he is accountable both to the victim of the wrong and to the community at large. To the former he has to render compensation for the resulting damage, whereas the State, as representative of the community, will institute proceedings with the aim of punishing the offender. One and the same act can therefore constitute a wrong both against a private and against the public interest: it can be a delict as well as a crime. It is the law of delict which protects the interests of the injured individual and which determines whether and under which circumstances redress may be claimed; criminal law, on the other hand, subjects the wrongdoer to a sanction1 in order to prevent a repetition of the wrongful act and to deter others from committing it.2 Of course, there are many delicts that do not at the same time constitute crimes: negligent damage to somebody else's corporeal assets is an example. Public interest does not appear to call for a criminal sanction in these cases. Occasionally, social policy requires the abrogation of a criminal penalty. This has happened in South Africa with regard to adultery.3 Yet, though no longer criminal, the act can still constitute a delict and give rise to a claim for damages.4 Conversely, not every crime is a delict either. High treason and (in South Africa) blasphemy are crimes but they do not affect the interests of private individuals.5

2.Delict and contract

(a)Death of contract, death oj delict?

Both criminal law and the law of delict deal with unlawful conduct; but

1" . . . malum passionis quod infligitur propter malum actionis": Grotius, Dejure belli ac pads. Lib. II, Cap. XX, I; generally, see Eberhard Schmidhauscr, Vom Sinn der Strafe (2nd ed., 1971), pp. 34sqq.

2Generally, on the distinction between criminal law and the law of delict, see Pierre Catala, John Anthony Weir, "Delict and Torts: A Study in Parallel", (1963) 37 Tulane LR

582 sqq.; Andre Tune, "Introduction", in: International Encyclopedia of Comparative Law, vol. XI, 1 (1983), nn. 49 sqq.; more specifically for England (crime and tort), see Percy H. Winficld, The Province of the Law of Tort (1971), pp. 190 sqq.; d. also Van den Heever,

Aquilian Damages, pp. 1 sqq.

3Green v. Fitzgerald, Fitzgerald v. Green 1914 AD 88 sqq.

4Cf., for example. Pauw. Persoonlikheidskrenking, pp. 190 sqq.; J. Neethling,

Persoonlikheidsreg (2nd ed., 1985), pp. 203 sqq. For Germany, see Andreas Wacke, in: Munchener Kommentar, vol. V, 1 (2nd ed., 1989), § 1353, nn. 39 sqq.

5 Crimes that result in harm to individuals do, however, normally constitute a delict. For a more detailed analysis, see Jean Limpens, Robert M. Kruilhof, Anne MeincrtzhagenLimpens, "Liability for One's Own Act", in: International Encyclopedia of Comparative Law, vol. XI, 2 (1983), nn. 151 sqq.

902

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whereas crime may be said to be a public wrong, a delict is a civil wrong. Yet breach of contract, in a broad sense, may also be dubbed a civil wrong. Within the province of private law, the necessity of drawing a second distinction thus presents itself. Ever since the days of Gaius,6 civilian tradition has conceived of contract and delict as two separate branches of the law of obligations, and in the English common law, too, a very similar conceptual classification (contract and tort) has become firmly entrenched.7 It has already been mentioned repeatedly that the distinction between delict (or tort) and contract is a most delicate one and that the borderline has in many respects become blurred.8 What is regarded as contractual liability in one country may be added to the province of delict in another, and vice versa, and certain cases even appear to defy all attempts at classification:9 being in the nature of hermaphrodites,10 they lead an unsettled existence within the no man's land somewhere between the traditional and established categories. Moreover, we have seen11 that the whole basis of the classification has been challenged by the death-of-contract theorists: contract, they claim, is in the process of being reabsorbed into the mainstream of the law of tort (whence it originally sprang).

It is not without irony, though, that contract is said to have rejoined tort just at the time when tort itself "has been subjected to the most intense theoretical and practical attacks in its long history".12 The explosion of civil liability, of traffic accidents and medical malpractice law has drawn attention to the "creaking jointfs] of our arthritic tort system".13

"The toll on life, limb, and property exacted by today's industrial operations, methods of transport, and many another activity benignly associated with the

6Gai. HI, 88; c(. supra, pp. 10 sqq.

7Cf. generally Tune. op. cit., note 2, nn. 32 sqq.

H Supra, pp. 11 sqq. Cf. also G.H.L. Fridman, "The Interaction of Tort and Contract" (1977) 93 LQR 422 (who recommends a fusion of the two categories) and J.C. Smith, "Economic Loss and the Common Law Marriage of Contracts and Torts", (1984) 18 University of British Columbia LR 95 sqq. (who records the union of contract and tort, but warns that it may be premature to celebrate the nuptials).

<} Even comparative lawyers have their difficulties. Thus, Basil Markcsinis, "An Expanding Tort Law —The Price of a Rigid Contract Law", (1987) 103 LQR 354, after an analysis of how German courts deal with economic loss cases, criticizes English courts for expanding the law of torts rather than the law of contract. Christian von Bar, "Deliktsrccht", in: Gutachtcn itnd Vorschtage zur Uberarbeitung des Schtldrechts, vol. II (1981), pp. 1685 sqq., 1771 sqq., on the other hand, after having examined the modern trends in French and English law, advocates de legc rerenda an expansion of the German law of delict at the expense of the contractual constructions employed de lege lata. On the nature of the liability arising from culpa in contrahendo (cf. supra, pp. 11 sq., 244 sq.) cf. most recently, Dieter Medicus, "Die culpa in contrahendo zwischen Vertrag und Delikt", in: Festschrift fur Max Keller (1989), pp. 205 sqq.

1() Robert Stevens, "Medley Byrne v. Heller. Judicial Creativity and Doctrinal Possibility" (1964) 27 Modern LR 161.

1 Supra, pp. 12 sq.

12Jeffrey O'Connell, "The Interlocking Death and Rebirth of Contract and Tort", (1976-77) 75 Michigan LR 662.

13John G. Fleming, (1982) 30 American Journal of Comparative Law 704.

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'modern way of life' ", writes Fleming,l4 "has reached proportions so staggering that the economic cost of accidents represents a constant and mounting drain on the community's human and material resources, calculable as a significant fraction of the gross national product. The principal, nay paramount, task of the law of torts is to play an important regulatory role in the adjustment of these losses and the eventual allocation of their cost."

Does that imply the death of tort? Probably not, but it does entail an ever-increasing shift from the classical model of individual loss-bearing towards a collectivization of losses, a gradual absorption of tort law, or at least large parts of it, into the modern social security system.15 Yet, despite these somewhat sombre prospects, both contract and delict have, to date, displayed a remarkable longevity; and whether jurisprudentially justifiable and practically satisfactory or not, the distinction does, as a matter of fact, continue to exist in modern legal systems. Contract law ratifies and enforces the joint ventures of two or more parties beyond the boundaries of the existing status quo;16 it seeks to protect specific expectations engendered by a binding promise. Tort law, on the other hand, attempts to coordinate the freedom of the individuals by deliminating and protecting their respective spheres against intrusions by each other; it is concerned with the degree of care owed even between strangers, and liability thus arises solely from the unlawful act committed by the wrongdoer, quite irrespective of whether any prior relationship existed between the parties concerned.

(b) Exclusivity or altemativity of remedies?

Given, then, the existence of two different bodies of rules and of two different types of remedy, the danger of a considerable overlap is obvious. Thus, if a complete stranger in a particular situation enjoys protection under the law of delict, should not—at least!—the same protection be accorded to contractual partners? Would it not be absurd to maintain that the general duty not to destroy other people's property does not also apply to the person who has leased the piece of property in question from its owner? Or take the case of products liability: the consumer's claim for damages resulting from the defective product may be based on the contract with his vendor, but it may also be, against the manufacturer, of a delictual character. Does that mean that, if vendor and manufacturer are one and the same person, two actions are available against him? Ultimately one may even ask whether every breach of contract that results in damage does not also constitute a delict.17

The answer to these questions is not of a purely academic nature. Whether damages are claimed in contract or in delict can have a whole

14John G. Fleming, An Introduction to the law of Torts (1977), p. 1.

15Cf., for example, John G. Fleming, "Is There a Future for Tort?", (1975) 58 Australian LJ 131 sqq.; Zwcigcrt/Kotz, pp. 433 sqq.; Tune, op. cit., note 2, nn. 21 sqq.

"' Charles Fried, Contract as Promise (1У81), pp. 2 sq.

17Cf. W.B.C. Palton, "Tort or Contract", (1966) 82 LQR 346 sqq.

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variety of implications. The details differ from country to country.18 In Germany, for example, delictual claims are subject to a three-year period of prescription,19 whereas contractual claims often prescribe only after 30 years.20 A plaintiff in delict has to prove fault, in contract the onus of proof is reversed.21 The place ofjurisdiction differs22 and so does, occasionally, the degree of fault required for both actions.23 In delict immaterial interest is, under certain circumstances, recoverable,24 whereas contractual claims are strictly confined to material loss.25 A further rather odd, but most important, distinction exists when it comes to liability for the fault of third parties: the defendant in a delictual action can exonerate himself by showing that no culpa in eligendo, custodiendo or inspiciendo was attributable to him.26 Contract, on the other hand, entails strict liability of the debtor for the fault of those employed in performing his obligation.27

In spite of these differences, German law allows, in principle, a choice of remedies:28 if a set of facts gives rise to a claim in delict and in contract, the plaintiff may proceed on either basis.29 But this approach is practicable only where, as indeed in Germany, the scope of delict is defined in such a manner that it cannot be used to turn the flank of contract. The German law of delict does not protect a person's property at large, and thus it is mainly via the law of contract that pure economic (or patrimonial) loss3" which has been negligently caused may be recovered.31 As a result, a sufficiently large range of cases is left

18 For details, see Tony Weir, "Complex Liabilities", in: International Encyclopedia of Comparative Law, vol. XI, 12 (1983), nn. 10 sqq. For a recent comparative discussion on the question of concurrence or alternativity of remedies in medical malpractice claims, see Dieter

Giesen, International Medical Malpractice Law (1988), pp. 33 sqq.

14 § 852 BGB.

~(l § 195 BGB; for details, see Peters/Zimmermann. Vvrjahmn^sjristen. pp. 218 sqq.

21§ 282 BGB.

22§§ 29, 32 ZPO.

23Cf., for example, §§ 599 (loan for use), 690 (deposit), as opposed to § 823 I BGB.

24§ 847 BGB; cf. infra, pp. 1027, 1092 sqq.

25§ 253 BGB.

26§ 831 BGB.

27§ 278 BGB.

~M For details, see Peter Schlechtricm. Vertragsordnung und ansservertragiiche Haftung (1972), pp. 289 sqq.

~ Both claims can, however, not be treated as completely independent. On the interaction between the two notionally independent claims, see Weir. op. cit., note 18, n. 61. Cf. also the example discussed supra, pp. 202 sq.

3(1 That is loss, which does not flow from (usually: physical) damage to a specific right or interest of the plaintiff (such as life, body, health, freedom or a specific asset within his property).

3 The patrimony as such is not listed among the rights or interests enumerated in § 823 I, the core provision of the German law of delict {cf. infra, p. 1036). Pure economic loss may be recovered under § 823 II, provided that some statute — usually of a criminal nature—has been violated which aims at the protection ot the injured party's patrimony, and—most importantly—under § 826 BGB (which is, however, limited to intentional activities which

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906 The Law of Obligations

to the exclusive regulation of the law of contract to prevent the existing differences between contractual and delictual remedies from being rendered meaningless.

The situation is entirely different under the French code civil.32 Here we find the famous general clause of delictual liability,33 according to which "every act whatever of man which causes damage to another obliges him by whose fault the damage occurred to repair it".34 It is so wide that the admission of an elective concurrence of liability would lead to every culpable breach of contract being actionable in delict too. As a result, French doctrine has to protect the rules relating to contractual liability by means of the principle of "non-cumul des responsabilites". Where a contractual bond exists between two parties, the law of contract must be given preference as the lex specialis; and even though all the elements of a cause of action in delict may be present, the availability of a contractual remedy is taken automatically to preclude any recourse to it.

In this context it is interesting to note a recent shift of approach by the South African courts. For while contractual and delictual liability have traditionally never been regarded as exclusive of each other,35 the Lillkrap decision has introduced an important qualification to the principle.36 Significantly, it follows closely on the heels of the extension of Aquilian (i.e. delictual) liability to cases involving purely economic loss,37 and it may be inferred from Lillkrap that a concurrence of delictual and contractual liability is no longer permissible where the harm does not flow from physical damage to the person or to a specific piece of property of the plaintiff, but where it is of a purely economic nature.38 English law, incidentally, which also does not exclude pure economic loss, a limine, from the confines of the law of torts,39 appears to adopt an intermediate position too.40

must, in addition, be contra bonos mores). For an overview of the German provisions, cf.

B.S. Markesinis, Л Comparative Introduction to the German Law of Tort (1986), pp. 24 sqq., 509 sqq., 513 sqq.

~ Cf. Schlechtriem, op. cit., note 28, pp. 63 sqq.; Weir, op. cit., note 18, nn. 52 sqq.

33 Art. 1382: "Tout fait quekoiique de I'hottttiie, qui cause d autrui uti dommage, oblige celui par la (ante duquel il est arrive, a le reparer,"

~M Tr. Weir, in Zweigert/Kotz/Weir. p. 283.

35Van Wyk v. Lewis 1924 AD 438 sqq.

36LiUicrap, Wassenaar and Partners v, Pilkington Brothers (SA) (Pty.) Ltd. 1985 (1) SA 475 (A); cf. p. 500G, where Grosskopf AJA states that "the Aquilian action does not fit comfortably in a contractual setting like the present".

37See infra, pp. 1042 sq.

3K P.Q.R. Boberg, "Back to Winterbottom v. Wright?— Not Quite!", (1985) 102 SALJ 213 sqq.; Dale Hutchison and D.P. Visser, "Lillicrap Revisited: Further Thoughts on Pure Economic Loss and Concurrence of Actions", (1985) 102 SALJ 587 sqq., 590 sqq.

39Cf. infra, pp. 1038 sqq.

40"It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as

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3. Delict and tort

We have, so far, been referring rather indiscriminately to the notions of delict and tort. "Delict" (derived from "delinquere"—hence also the word "delinquent") is the civilian term generally used to designate a civil (as opposed to criminal) wrong. Its common-law counterpart is "tort" which, in turn, has its etymological root in the Latin term "tortus", meaning "crooked" or "twisted".41 Delict and tort are functional equivalents, since both of them refer to certain wrongful acts which the law is prepared to redress, cither with a decree for restitution in kind42 or with an award of damages. But the approach adopted towards defining the scope and essence of such wrongful acts is entirely dissimilar.43 The continental law of delict presents the picture of a coherent body of rules based on general principles and abstract concepts; and though the inordinate amount of case law that can be found in any modern commentary on the topic44 considerably mars the neatness of this picture, the crisp provisions of the modern codes,45 still essentially shaping our ideas about delictual liability, are the result of a long and characteristic process of generalization, systematization and abstraction.46 Of prime importance, in this context, are the notions of causation, unlawfulness, fault and damages: they constitute the four essential features of the modern, actionable delict. Tort, by comparison,

"is a bag of nuts and bolts. History can say how they came there, but science is pressed to rationalize their presence. It follows from the impossibility of discovering a highest common factor of contcntual quiddity that the common law should be said to know not tort but torts".47

"Tort" does not constitute a coherent body of law, definable in general and abstract terms, but is no more than the sum total of a variety of individual torts that have developed, under the writ system, in characteristically casuistic and haphazard fashion. Each of these specific torts is still regarded as an independent cause of liability, each has its own constituent elements, and each protects a special interest from being interfered with.48 That does not mean, however, that the English

themselves necessarily exclusive of each other": Lister v, Romford Ice and Cold Storage Co. [1957] AC 555 (HL) at 587 (per Lord Raddiffc). Cf. Weir, op." cit., note 18, nn. 67 sq. For criticism see Fridman, (1966) 82 LQR 428 sqq.

41Winfield, op. cit., note 2, pp. 8 sqq.; Tune, op. cit., note 2, n. 5.

42Supra, pp. 824 sq.

43For a comparison, see Buckland/McNair, pp. 338 sqq.; Catala/Weir, (1963) 37 Tulane LR 573 sqq.; B.S. Markesinis, "The Not So Dissimilar Tort and Delict", (1977) 93 LQR 78

sqq

*4 Cf., for example, Karl Scha'fer, in: Staudinqer (12th cd.), §§ 823-832 (1986), § 823, nn. 1-625 (334 pages).

45For an overview cf. Limpens/Kruithof/Meinertzhagen-Limpens, op. cit., note 5, nn. 5

For details, see infra, pp. 1031 sqq.

47Catala/Weir, (1963) 37 Tulane LR 580.

48Zweigert/Kotz, p. 343.

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law of torts has become entirely petrified. For even though the courts do not approach the cases brought before them from the point of view of general requirements of tortious liability, but rather try to fit them into one of the existing pigeon-holes, they have never been reluctant to expand the scope of protection by adding yet another of these pigeon-holes:

"(T]ortious liability is constantly expanding and there is ample evidence that a plaintiff's claim is not necessarily prejudiced because he is unable to find a specific label for the wrong of which he complains. New and innominate torts have been constantly emerging in the long course of our history and the courts have shown no inclination at any stage to disclaim their creative functions, if considerations of policy pointed to the need of recognizing a new cause of action."4''

4.The development of the law of torts

(a)Trespass and the rise of "case"

The "fertile mother of actions"50 in English legal history was trespass.5] It emerged in the course of the 13th century as a remedy for a class of very obvious and dangerous wrongs: wrongs that had been committed with force and arms and that constituted a breach of the king's peace ("vi et armis, et contra pacem Domini Regis"). This grave allegation was necessary, originally, to justify the intervention of the royal courts; for the great bulk of trespasses at that time was dealt with by the local courts. It was only towards the end of the 14th century that the royal courts openly started to exercise jurisdiction over trespass actions in which the king could not be said to have a special interest. One of the first cases appears to have been the "Farrier's Case",52 concerning a smith's liability for laming a horse that he was, rather unskilfully, shoeing: obviously, the smith's action could hardly be said to endanger the king's peace. Thus, a category of writs gradually came to be established that was characterized by the absence of the contra pacem clause: the special writ of trespass as opposed to the common writs that contained the allegation of a breach of peace. More important, from the point of view of substantive law, was another feature common to the cases where proceedings were initiated by a special writ: the wrong

44 Fleming Torts, p. 5. Cf also Ashby v. White (1703) 2 Ld Kaym 938 (per Holt CJ); Chapman v, Pickersgill (1762) 2 Wils 145 ("This action is for a tort: torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief": p. 146). For a more modern case in point, see Rookes v. Barnard 11964] AC 1129 (HL) (establishing the tort of intimidation).

50Pollock and Maitland, vol. II, p. 525.

51Derived from the Latin "transgressio" (Pollock and Maitland, vol. II, pp. 511 sq.). For what follows see S.F.C. Milsom, "Trespass from Henry 111. to Edward III.", (1958) 74 LQR

195 sqq., 407 sqq., 561 sqq.; idem. Historical Foundations of the Common Law (1969), pp. 244 sqq. Cf also Theodore F.T. Plucknett, A Concise History of the Common Law (5th ed., 1956), pp. 455 sqq.; C.H.S. Fifoot, History and Sources of the Common Law (1949), pp. 44 sqq.

э2 Cf. Fifoot, op. rit., note 51, pp. 81 sq. (A.D. 1373); on which, sec Milsom, Historical Foundations, op. cit., note 51. pp. 249 sqq.

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allegedly committed by the defendant was less obvious and some explanation was needed to substantiate the plaintiff's claim. In a common writ, the plaintiff had to describe only what the defendant had either done or failed to do. But in the case of the farrier, for instance, the mere allegation that the smith had driven his nails into the quick of the horse's hoof and thereby caused the plaintiff damage was hardly sufficient to establish the wrongfulness of his behaviour. In addition, the plaintiff had to set out why the smith should have been under a duty to shoe the plaintiff's horse. Thus, a special clause introduced by the word "cum" (whereas) had to be included in the writ53—the Roman lawyers would probably have called it a demonstratio. This clause contained the special facts of the case on which the success of the action depended, and hence the expressions "super casum", "sur son cas" or "on the case" were used to describe the new kind of writ. This was the origin of the distinction between (general) trespass and "case", a distinction that became firmly entrenched on account of certain procedural consequences attaching to the contra pacem clause in (general) trespass: breach of the king's peace was a most serious matter and had therefore always carried arrest and outlawry.54

(b)The distinction between trespass and "case"

Trespass and case remained the principal writs which the common law offered against wrongful misconduct, but in the course of time standard

" Milsom, (1958) 74 LQR 407 sqq.; Simpson, History, pp. 200 sqq.

7:4 Milsom, Historical Foundations, op. cit., note 51, p. 263. It is significant to note that the defendant, if convicted, was liable to a hue and imprisonment (abolished only in 1694) since every trespass constituted a punishable offence; originally, no clear-cut division existed between crime and civil injury. Trespass, the action which exercised dominance over the growing law of torts, was "quasi-criminal" in character (Winfield, op. cit., note 2, p. 10). It aimed "at a punitive and exemplary result", and throughout the time of the Year Books, men were "punished" for their trespasses (Pollock and Maitland, vol. II, p. 573). The transition from what we would call "criminal" to "civil" justice is described by Pollock and Maitland (vol. II, p. 522) in the following words; "[U]nder Edward I a favorite device of our legislators is that of giving double or treble damages to 'the party grieved'. They have little faith in 'communal accusation1 or in any procedure that expects either royal officials or people in general to be active in bringing malefactors to justice. More was to be hoped from the man who had suffered. He would move if they made it worth his while. And so in a characteristically English fashion punishment was to be inflicted in the course of civil actions: it took the form of manifold reparation, of penal and exemplary damages." Further on the history of the distinction between tort and crime, see Winfield, op. cit., note 2, pp. 8 sqq.; Buckland/MacNair, pp. 344 sqq.

While, generally speaking, the common law of torts (like its civilian counterpart, the law of delict) has moved from punishment to compensation, it has (unlike the civil law) never entirely abandoned the penal element. Some traces of the old link between tort and crime have survived to the present day, in particular the notion of exemplary ("punitive") damages to punish contumelious and outrageous wrongdoing (cf. Rookes v. Barnard [1964] AC 1192; Fleming, Torts, pp. 1 sq.; Winfield and jolowicz, pp. 616 sqq.). The old common-law rule that tort claims survive neither the death of the wrongdoer nor that of the victim (also due to the historical connection of trespass with criminal law, usually expressed in the adage "actio personalis moritur cum persona") was abrogated by statute in 1934 (Fleming, Torts, pp. 638 sqq.; Winfield and Jolowicz, pp. 657 sqq.).

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forms were evolved to cover the most common types of both of them. Thus, a whole variety of specific torts came to be recognized, among them assault, battery and false imprisonment as special forms of trespass to the person, trespass to land and trespass to chattels, libel and slander, nuisance, deceit, conversion and conspiracy. The appropriate actions were in the nature of trespass, if they involved a forcible and direct injury; they constituted a subspecies of case, where the defendant's conduct had either not been forcible or not been direct. Assumpsit, it will be remembered, was a typical example of case,55 and so were malicious prosecution, slander or deceit. The choice of the appropriate remedy could depend on rather delicate distinctions as the oft-quoted remark by Blackstone demonstrates:

"[I]f I throw a log of timber into the highway, (which is an unlawful act), and another man tumbles over it, and is hurt, an action on the case only lies, it being a consequential damage; but if in throwing it I hit another man, he may bring trespass, because it is an immediate wrong."51'

What was the practical relevance of the division between case and trespass and of all the "finespun and cabalistic"57 learning connected with it? Trespass, as a direct forcible injury, was prima facie wrongful, and thus it was up to the defendant to rebut the presumption by invoking a specific excuse or justification. Moreover, trespass was actionable per se, and thus the plaintiff succeeded without proof of actual damage. Case, on the other hand, covered situations where the plaintiff's act was not so obviously "wrong" and where, therefore, the form of conduct as such and the (eventual) infliction of an injury (in other words: the issue of causation) could hardly be taken to provide a satisfactory basis tor an action. Further criteria had to be resorted to: the plaintiff had to have suffered damages and, even more importantly, proof of cither wrongful intent or negligence on the part of the defendant was required.

(c) The rise of the tort of "negligence"

Case could thus be brought for inadvertent injuries and it became common, in the course of the 19th century, to refer to actions upon the case for negligence, to actions for negligence or, simply, to actionable negligence. At first, these expressions clearly referred to the old action of trespass on the case, justified, in certain types of situations, by an allegation of negligence. Gradually, however, their meaning began to shift, and "negligence" was no longer merely conceived of as one of the ways of committing one of the established torts, but rather as a separate basis of tort liability in its own right. This shift

"broadly coincided with the Industrial Revolution and was undoubtedly stimulated by the advent of machinery, urbanization and the faster traffic along turnpike and

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