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The Structure of the Law of Delict in Historical Perspective

DANIEL VISSER and NIALL WHITTY

in A History of Private Law in Scotland: Volume 2: Obligations

This chapter aims to trace and describe the historical evolution of the distinctions between: the criminal law and private law as manifested in the law of delict; the law of property and the law of ... More

This chapter aims to trace and describe the historical evolution of the distinctions between: the criminal law and private law as manifested in the law of delict; the law of property and the law of obligations within the private law; the law of delict and the different areas of the law of obligations; and the different areas of the delict itself. In addition to describing the historical evolution of the law of delict by distinguishing it from other laws, the chapter also attempts to make observations of the function of delict as seen in the historical change of the taxonomy of this area of the law.Less

Negligence

HECTOR L. MACQUEEN and W. D. H. SELLAR

in A History of Private Law in Scotland: Volume 2: Obligations

This chapter focuses on the year 1795 until 1932, a period which marks a great shift and change in the history of the law of delict in Scotland. In the early period of Scots’ law of delict, ... More

This chapter focuses on the year 1795 until 1932, a period which marks a great shift and change in the history of the law of delict in Scotland. In the early period of Scots’ law of delict, negligence does appear however it was treated as an element of particular claim rather than as a general basis for liability. This concept of negligence changed as the Scottish courts became increasingly aware of the jurisdictions of the concept of duty, reasonableness, and foreseeability. The chapter also outlines the convergence of the Scots and English law of negligence during the 19th century which affected the radical shift and orientation of the Scots law on negligence and duty.Less

The Law of Delict, Constitutional, and Criminal Law

Christian Von Bar

in The Common European Law of Torts: Volume One

This chapter considers the relationships between the law of delict and constitutional law, and the law of delict and criminal law.

Foundations

Christian Von Bar

in The Common European Law of Torts: Volume One

This chapter begins with a discussion of the term ‘law of delict’. It then discusses liability for personal misconduct and liability without personal misconduct.

Aquilian Liability II (Twentieth Century)

Dale Hutchison

in Southern Cross: Civil Law and Common Law in South Africa

The story of the development of the Aquilian action in the 20th century is largely one of the struggle to free the action from outdated confines, by extending it to conduct and harm of all kinds. ... More

The story of the development of the Aquilian action in the 20th century is largely one of the struggle to free the action from outdated confines, by extending it to conduct and harm of all kinds. More particularly, it is the story of the development of liability for omissions, for negligent misstatements, and for pure economic loss. These developments have been made possible, or at any rate facilitated, by the resurrection and redefinition of the element of wrongfulness, which has come to serve a very prominent role as a discretionary tool for judicial control in expanding the frontiers of Aquilian liability. This chapter focuses on these major developments, with liability for misstatements being treated as an aspect of the wider problem of liability for negligently inflicted pure economic loss.Less

Strange Gods in the Twenty-First Century: the Doctrine of Aemulatio Vicini

Elspeth Reid

in A Mixed Legal System in Transition: T. B. Smith and the Progress of Scots Law

Smith's inaugural lecture as Professor of Civil Law at the University of Edinburgh in 1958 set out the manifesto for Smith's comparative law. The lecture took as its starting point the conceptual ... More

Smith's inaugural lecture as Professor of Civil Law at the University of Edinburgh in 1958 set out the manifesto for Smith's comparative law. The lecture took as its starting point the conceptual structure of the law of delict. Important opportunities had been missed in the failure to build delict on the sound foundations of the actio injuriarum and the lex Aquilia, and Scots law suffered from the misidentification of culpa with the English tort of ‘negligence’. These themes have been further developed and reappraised elsewhere. This chapter focuses upon a further topic also discussed on this platform by Smith: the principle of aemulatio vicini (or what is popularly but not very happily called ‘abuse of rights’).Less

Aquilian Liability I (Nineteenth Century)

AnnÉl van Aswegen

in Southern Cross: Civil Law and Common Law in South Africa

This chapter discusses the historical development of the actio legis Aquiliae in South Africa. During the period under discussion the actio legis Aquiliae remained essentially Roman-Dutch in nature ... More

This chapter discusses the historical development of the actio legis Aquiliae in South Africa. During the period under discussion the actio legis Aquiliae remained essentially Roman-Dutch in nature and application. Thus, the basic rules and principles concerning the requirements of liability like, especially: the notions of iniuria and culpa; the position concerning the liability of joint wrongdoers; and concerning title to sue (in cases not involving trespass) remained substantially unchanged. However, there were also numerous indications of further development and refinement of Aquilian principles in 19th-century South African case-law. They were entirely in accordance with the civilian character of the remedy and were not based on any bias towards English law.Less

Voluntary Obligations

Neil MacCormick

in Legal Right and Social Democracy: Essays in Legal and Political Philosophy

Voluntary obligations are those which arise from contracts and promises; obediental obligations include those whose incidence is determined by the law of delict. It might be thought that speculation ... More

Voluntary obligations are those which arise from contracts and promises; obediental obligations include those whose incidence is determined by the law of delict. It might be thought that speculation as to the nature of voluntary obligation is essentially a misconceived activity, especially when it is supposed to yield solutions to practical legal problems. To common lawyers, there must appear to be a certain futility in the efforts of French doctrinal writers to settle the question of when a contract made by postal correspondence is to be deemed complete — whether on declaration of acceptance, posting of it, delivery to the offeror's address, or actual scrutiny of it by him. Such problems are not to be solved by theorizing as to the true nature of accord de volonte, but by laying down more or less arbitrary rules.Less

Crimes Against Peace: Definition and Bases of Responsibilit y

Ian Brownlie

in International Law and the Use of Force by States

This chapter describes the principles applied by the various tribunals involved in imposing responsibility for crimes against peace: reference is made to the discussions of the International Law ... More

This chapter describes the principles applied by the various tribunals involved in imposing responsibility for crimes against peace: reference is made to the discussions of the International Law Commission and the Sixth (Legal) Committee of the General Assembly, and to the question whether the ambit of criminal responsibility in this field can be equated with the category of unlawful resort to force in general. In several cases, the Tribunal regarded taking part in the formulation and execution of occupation policies in territories occupied as a result of aggressive war as an element of guilt. The initiation of war is explained. It is shown that those people who were not in a position to affect the making of policy were not convicted of crimes against the peace. Data may suggest that the law of criminal responsibility and the law of delict have not coalesced. The International Military Tribunals focused on the use of force as an instrument of selfishness, for the extension of territory or of domination, and it would seem to follow that interventions of the type referred to do not at present create criminal responsibility.Less