Eric Descheemaeker
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199562794
- eISBN:
- 9780191705533
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562794.003.0002
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter concerns itself with the identification of the subject-matter of the book, wrongs and the law of wrongs. Regarding the former, the definition offered of a wrong (or civil wrong) is that ...
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This chapter concerns itself with the identification of the subject-matter of the book, wrongs and the law of wrongs. Regarding the former, the definition offered of a wrong (or civil wrong) is that it is the violation of a right, and therefore a breach of duty. The relationship between the concepts of ‘duty’, ‘right’, and ‘wrong’ is explored; as are the notion of an ‘interest’, and the alternative analytical framework followed in particular by Nils Jansen. Concerning the delineation of the law of wrongs, this chapter explains why, in order to maintain a stable field of enquiry across jurisdictional divides, the book will exclude breach of contract and public law from its scope.Less
This chapter concerns itself with the identification of the subject-matter of the book, wrongs and the law of wrongs. Regarding the former, the definition offered of a wrong (or civil wrong) is that it is the violation of a right, and therefore a breach of duty. The relationship between the concepts of ‘duty’, ‘right’, and ‘wrong’ is explored; as are the notion of an ‘interest’, and the alternative analytical framework followed in particular by Nils Jansen. Concerning the delineation of the law of wrongs, this chapter explains why, in order to maintain a stable field of enquiry across jurisdictional divides, the book will exclude breach of contract and public law from its scope.
Eric Descheemaeker
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199562794
- eISBN:
- 9780191705533
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562794.003.0001
- Subject:
- Law, Comparative Law, Law of Obligations
The civilian tradition, as exemplified by Justinian's Institutes and the French Civil Code, has generally divided its law of civil wrongs into two categories, wrongs ‘proper’ and ‘quasi-wrongs’. ...
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The civilian tradition, as exemplified by Justinian's Institutes and the French Civil Code, has generally divided its law of civil wrongs into two categories, wrongs ‘proper’ and ‘quasi-wrongs’. Nowhere, however, does it state unambiguously the rationale, or even the content, of this dichotomy. The common law, on the other hand, has only ever had, in spite of some procedural divisions, one class of civil wrongs. From this observation, two questions arise, which will form the subject-matter of the book: How and why did the civilian tradition split up its law of wrongs, and what did it make of this division? What, if anything, could the common law learn from the civilian experience on this point?Less
The civilian tradition, as exemplified by Justinian's Institutes and the French Civil Code, has generally divided its law of civil wrongs into two categories, wrongs ‘proper’ and ‘quasi-wrongs’. Nowhere, however, does it state unambiguously the rationale, or even the content, of this dichotomy. The common law, on the other hand, has only ever had, in spite of some procedural divisions, one class of civil wrongs. From this observation, two questions arise, which will form the subject-matter of the book: How and why did the civilian tradition split up its law of wrongs, and what did it make of this division? What, if anything, could the common law learn from the civilian experience on this point?
Eric Descheemaeker
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199562794
- eISBN:
- 9780191705533
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562794.001.0001
- Subject:
- Law, Comparative Law, Law of Obligations
The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ...
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The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores. The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.Less
The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores. The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.
BIRKS PETER
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198265795
- eISBN:
- 9780191682971
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265795.003.0002
- Subject:
- Law, Philosophy of Law
This chapter is concerned with the common law, but it has a Roman beginning. By starting from the Roman analysis in which it had its origin, one can most easily set out the common law classification ...
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This chapter is concerned with the common law, but it has a Roman beginning. By starting from the Roman analysis in which it had its origin, one can most easily set out the common law classification in which civil wrongs, or torts, form one important category. The concept of a civil wrong cannot be investigated other than in the context of that classification. The second-century jurist Gaius was the first to advance the proposition that every obligation arises from a contract, a wrong, or from some other causal event. However, he saw that that would not do, for there were indisputable instances of legal obligation handed down from the unsystematic past which arose from neither. The obligation to return a mistaken payment was a prominent example. The threefold classification – contracts, wrongs, and other events – was not the end of the Roman story. The miscellaneous third category posed a challenge.Less
This chapter is concerned with the common law, but it has a Roman beginning. By starting from the Roman analysis in which it had its origin, one can most easily set out the common law classification in which civil wrongs, or torts, form one important category. The concept of a civil wrong cannot be investigated other than in the context of that classification. The second-century jurist Gaius was the first to advance the proposition that every obligation arises from a contract, a wrong, or from some other causal event. However, he saw that that would not do, for there were indisputable instances of legal obligation handed down from the unsystematic past which arose from neither. The obligation to return a mistaken payment was a prominent example. The threefold classification – contracts, wrongs, and other events – was not the end of the Roman story. The miscellaneous third category posed a challenge.
Peter Birks
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199276981
- eISBN:
- 9780191699917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276981.003.0002
- Subject:
- Law, Law of Obligations
The mapping metaphor was first used by William Blackstone in 1756, when he said that the duty of the ‘academical expounder of the laws’ was to make clear how the various parts of the law fitted ...
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The mapping metaphor was first used by William Blackstone in 1756, when he said that the duty of the ‘academical expounder of the laws’ was to make clear how the various parts of the law fitted together. This chapter is concerned with three maps which together show where unjust enrichment belongs and how it is itself divided. The first of the three maps fixes its relation to other categories of the same kind. The second relates those event-based categories, and unjust enrichment in particular, to the law of obligations and the law of property. These are not categories of causative event but of responses to events. The third map raises the level of magnification so as to expose the layout of unjust enrichment itself. This chapter gives a more complete picture of the classification of rights by reference to their causative event and looks at four categories of civil wrongs: torts, equitable wrongs, breaches of statutory duty not amounting to a tort, and breaches of contract.Less
The mapping metaphor was first used by William Blackstone in 1756, when he said that the duty of the ‘academical expounder of the laws’ was to make clear how the various parts of the law fitted together. This chapter is concerned with three maps which together show where unjust enrichment belongs and how it is itself divided. The first of the three maps fixes its relation to other categories of the same kind. The second relates those event-based categories, and unjust enrichment in particular, to the law of obligations and the law of property. These are not categories of causative event but of responses to events. The third map raises the level of magnification so as to expose the layout of unjust enrichment itself. This chapter gives a more complete picture of the classification of rights by reference to their causative event and looks at four categories of civil wrongs: torts, equitable wrongs, breaches of statutory duty not amounting to a tort, and breaches of contract.
Indira Jaising
- Published in print:
- 2019
- Published Online:
- August 2019
- ISBN:
- 9780199489954
- eISBN:
- 9780199095674
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199489954.003.0001
- Subject:
- Law, Family Law
The chapter presents the underlying idea behind this volume and serves as an introduction to domestic violence and the law in India. Tracing the history of laws addressing domestic violence both as a ...
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The chapter presents the underlying idea behind this volume and serves as an introduction to domestic violence and the law in India. Tracing the history of laws addressing domestic violence both as a crime and a civil wrong, the author explains how the collection of essays in this volume evaluate some of the essential concepts that shaped the framing of the PWDVA and its treatment in the hands of judges. Providing insights into the challenges faced in drafting and enforcement of the PWDVA, such as inclusion of women in ‘relationships in the nature of marriage’ and unique provisions such as the ‘right to residence’, the author discusses the extent to which PWDVA has succeeded in fulfilling its purpose and areas of enforcement that remain a challenge even after a decade.Less
The chapter presents the underlying idea behind this volume and serves as an introduction to domestic violence and the law in India. Tracing the history of laws addressing domestic violence both as a crime and a civil wrong, the author explains how the collection of essays in this volume evaluate some of the essential concepts that shaped the framing of the PWDVA and its treatment in the hands of judges. Providing insights into the challenges faced in drafting and enforcement of the PWDVA, such as inclusion of women in ‘relationships in the nature of marriage’ and unique provisions such as the ‘right to residence’, the author discusses the extent to which PWDVA has succeeded in fulfilling its purpose and areas of enforcement that remain a challenge even after a decade.
