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JURISTS’ LAW

NEIL DUXBURY

in Frederick Pollock and the English Juristic Tradition

This chapter examines the arguments underlying, and the influence of, Pollock’s treatise writing. It explains that like Lord Mansfield, Pollock believed that the law does not consist of particular ... More

This chapter examines the arguments underlying, and the influence of, Pollock’s treatise writing. It explains that like Lord Mansfield, Pollock believed that the law does not consist of particular cases, but of the general principles illustrated and explained in those cases. It discusses that Pollock’s many editions of his two great treatises, Principles of Contract and The Law of Torts, are very much exercises in capturing the principles latent in what are often fragmentary bodies of doctrine. This chapter examines just how Pollock highlights contract and torts through principle.Less

Negligence

Michael Lobban

in The Oxford History of the Laws of England: Volume XII: 1820–1914 Private Law

This chapter discusses the development of the concept of negligence and its place in the law of torts. Topics covered include the birth of negligence, defining negligence, and rethinking negligence.

Torts

Robert Stevens

in The Judicial House of Lords 1876–2009:

The modern law of torts is dominated by decisions of the House of Lords. In other areas of private law this is not so. Within contract law, for example, the leading cases are frequently those of the ... More

The modern law of torts is dominated by decisions of the House of Lords. In other areas of private law this is not so. Within contract law, for example, the leading cases are frequently those of the Court of Appeal or even first instance judges. Another feature of the law of torts is how many of the leading cases are relatively recent. Again, this hyperactivity in modern times is not the case in other areas, notably the law of contract where many of the leading cases are relatively old. Although the foundations of the law of torts are ancient, the building we currently live in is of very recent construction. It is perhaps unsurprising therefore that the large number of cases over a relatively short period of time has caused the law of torts to be perceived as a ‘mess’. This chapter presents an overview of the cases which the House of Lords has decided in this area.Less

Malice and the Law of Torts

MICHAEL TAGGART

in Private Property and Abuse of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply

For a 20-year period spanning the turn of the 20th century, the place of malice in the law of torts was a matter of considerable legal interest. For England, the debate began with the pioneering work ... More

For a 20-year period spanning the turn of the 20th century, the place of malice in the law of torts was a matter of considerable legal interest. For England, the debate began with the pioneering work of Sir Frederick Pollock on The Law of Torts, first published in 1887. For the American side, the first shot was fired in the Harvard Law Review by Oliver Wendell Holmes Jr., the doyen of American lawyers. The American law, however, was less settled than Pollock led his readers to believe. This chapter also discusses economic torts and nuisance.Less

9. The Law of Torts in the Nineteenth Century: The Rise of the Tort of Negligence

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

This chapter shows how the law of torts at the start of the 19th century was still recognizably medieval. It was characterized by the division between the action of trespass and the action on the ... More

This chapter shows how the law of torts at the start of the 19th century was still recognizably medieval. It was characterized by the division between the action of trespass and the action on the case, the latter of which was subdivided into a number of nominate forms and a large residuary group linked together by nothing stronger than that the defendant was alleged to have caused loss to the plaintiff. In the 19th century, a substantial part of this residuary group coalesced as the tort of negligence. This brought about a wholesale realignment of the law of torts, as this tort, defined by the reference to the quality of the defendant's conduct, cut across the previous categorization of torts.Less

Concepts in Resource Property Rights

Anthony Scott

in The Evolution of Resource Property Rights

This opening chapter explains how the ‘completeness’ of a property right is measured by the extent to which it has all of six ‘characteristics’. These are exclusivity, duration, flexibility, quality ... More

This opening chapter explains how the ‘completeness’ of a property right is measured by the extent to which it has all of six ‘characteristics’. These are exclusivity, duration, flexibility, quality of title, transferability, and divisibility. Each set of chapters, dealing with rights over a particular resource: water, fisheries, minerals, or forest, examines the amount and types of characteristic with which its rights are equipped. Rights are distinguished from the ‘powers’. The chapter presents ‘demand’ and ‘supply’ for characteristics as holders interact. ‘Demand’ has flowed from owners who in the course of disputes have found their rights' characteristics to be inadequate. The chapter examines sources of ‘supply’ in detail: the courts — hearing cases in property, tort or contract law; government — legislating rights and taxes directly or making rules for public-land disposal; manorial custom; and military invasion.Less

4. The Substantive Law of Torts

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

This chapter begins with a discussion of how the substantive law of torts in the Middle Ages was inherently messy, mainly because the law of torts always responds retrospectively to alleged ... More

This chapter begins with a discussion of how the substantive law of torts in the Middle Ages was inherently messy, mainly because the law of torts always responds retrospectively to alleged wrongdoings. It then discusses strict liability and the role of fault and the scope of trespassory liability.Less

The Law of Tort

Eva Steiner

in French Law: A Comparative Approach

This chapter examines the French law of tort. Although French law takes a broad approach to civil liability, when looking more closely at the way in which French judges have dealt with claims in ... More

This chapter examines the French law of tort. Although French law takes a broad approach to civil liability, when looking more closely at the way in which French judges have dealt with claims in tort, it becomes apparent that the need to avoid extending the scope of civil liability to an unlimited extent has also been present in French law. Indeed, in order to achieve desirable results, French judges have on many occasions used their discretion to interpret restrictively the elastic concepts of fault, damage, and causation. Hence, they end up dismissing claims which, for policy reasons, would have created unjust results or would have opened the gates to a flood of new claims. Thus, even though French judges do not admit to it openly in their judgments, they are influenced as regards the matter of deciding the limits of liability by general policy considerations, especially the ‘floodgates arguments’ which their English counterparts also readily understand.Less

The Law of Obligations

V.C. Govindaraj

in The Conflict of Laws in India: Inter-Territorial and Inter-Personal Conflict, Second Edition

The law of obligations consists of the law of contracts and the law of torts. The law of obligations, whether it be contract or tort, is the outcome of the act of parties which gives rise to a legal ... More

The law of obligations consists of the law of contracts and the law of torts. The law of obligations, whether it be contract or tort, is the outcome of the act of parties which gives rise to a legal obligation. This chapter discusses the following: foreign contracts and the conflicts resolution process; express choice of law; informed or implied intention; inferred choice of law; inference as to the validity of a contract in case of conflict; absence of express or inferred choice of law; presumptions relating to the proper law doctrine; whether the proper law signifies connection with a country or with the system of law; time factor as an aid to interpretation; the doctrine of renvoi vis-à-vis the proper law; and foreign torts.Less

The Evidential Damage Doctrine: Applications and Evaluation

Ariel Porat and Alex Stein

in Tort Liability Under Uncertainty

This chapter evaluates the application of the proposed evidential damage doctrine to paradigmatic tort cases. It compares the results with those obtained by positive law. The findings reveal that the ... More

This chapter evaluates the application of the proposed evidential damage doctrine to paradigmatic tort cases. It compares the results with those obtained by positive law. The findings reveal that the evidential damage doctrine is best used in tandem with existing legal doctrines. This chapter explains that such a combined approach would promote the fundamental objectives of the law of torts better than any of its alternatives would.Less

3. Trespass, Trespass on the Case, and the Medieval Law of Tort

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

This chapter begins with a discussion of how the action of trespass as an ordinary feature of the jurisdiction of the royal courts gives some shape to the emergent law of tort. It then shows how, by ... More

This chapter begins with a discussion of how the action of trespass as an ordinary feature of the jurisdiction of the royal courts gives some shape to the emergent law of tort. It then shows how, by the beginning of the 14th century, the action of trespass became established around a core of (minimally) forcible wrongdoing. This is followed by a discussion of the origins of the trespass on the case.Less

8. Trespass, Case, and the Moral Basis of Liability

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

This chapter shows how central to the later medieval law of torts was the division between the action of trespass and action on the case. The former lay for invasive interferences to land, goods, or ... More

This chapter shows how central to the later medieval law of torts was the division between the action of trespass and action on the case. The former lay for invasive interferences to land, goods, or the person; the latter covered a range situations where loss had been caused wrongfully. The formal division between trespass and case, and the crystallization of negligence are discussed.Less

1. Structural Foundations

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

This chapter begins with a discussion of liability for wrongdoing, showing how it became focused on the causation of loss. This became the general central feature of the action of trespass, and it ... More

This chapter begins with a discussion of liability for wrongdoing, showing how it became focused on the causation of loss. This became the general central feature of the action of trespass, and it has remained the central feature of the English law of tort. The chapter then discusses Glavill and the law of debt and covenant and a law of contract.Less

Trespass and Case

Sir John Baker

in The Oxford History of the Laws of England: Volume VI 1483–1558

This chapter examines the law of torts as they relate to trespassing in England during the Tudor period. Like the law of chattels, the law of torts was also subsumed under the law of actions. ... More

This chapter examines the law of torts as they relate to trespassing in England during the Tudor period. Like the law of chattels, the law of torts was also subsumed under the law of actions. Although actions on trespassing cases had been in use since the mid-14th century, their scope did not widen greatly during the 15th century and the writs were seldom pursued beyond the interlocutory stage. It was only in the early 15th century that new varieties of action were introduced, including actions for defamation, malicious prosecution, and trover.Less

The Timeless Principles of the Common Law: Keeble v. Hickeringill (1707)

A. W. Brian Simpson

in Leading Cases in the Common Law

This chapter discusses the case of Keeble v. Hickeringill. The case involved an action for damages for frightening ducks. Although the case is still an authority of some importance in English law, ... More

This chapter discusses the case of Keeble v. Hickeringill. The case involved an action for damages for frightening ducks. Although the case is still an authority of some importance in English law, its true home is now the United States, where it features very prominently in the teaching of both the law of property and the law of torts through the case method of instruction.Less

Procuring Breaches of Contract

Sir John Baker

in The Oxford History of the Laws of England: Volume VI 1483–1558

This chapter examines the law of torts relevant to procurement of breaches of contract in England during the Tudor period. During this period, action for this case was usually associated with ... More

This chapter examines the law of torts relevant to procurement of breaches of contract in England during the Tudor period. During this period, action for this case was usually associated with disputes over employment, and its antecedent being the action on the Ordinance of Labourers for retaining or harbouring servants. This chapter discusses specific cases of breaches of contract filed during this period and analyses the legal bases of decisions in court. It also describes the factors that led to the evolution of the laws governing procurement for breaches of contract.Less

Introduction

John Gardner

in From Personal Life to Private Law

This introductory chapter clarifies the definitions of ‘personal life’ and ‘private law’ as undertaken by this book. Roughly, ‘personal life’ refers to what people do (as well as what they think, ... More

This introductory chapter clarifies the definitions of ‘personal life’ and ‘private law’ as undertaken by this book. Roughly, ‘personal life’ refers to what people do (as well as what they think, believe, want, etc.) apart from the law. The chapter discusses a ‘monist’ view that what private law would have us do is best understood by reflecting on what we should be doing, quite apart from private law, which entails reflection on the reasons why we should be doing it. As to ‘private law’, this chapter and the book as a whole primarily refer to the law of torts and the law of contract. This definition excludes a few similar but unrelated concepts such as unjust enrichment, breach of trust, and breach of confidence.Less

Defamation

Sir John Baker

in The Oxford History of the Laws of England: Volume VI 1483–1558

This chapter examines the law of torts related to defamation in England during the Tudor period. During this period, defamation was still almost exclusively within the province of the ecclesiastical ... More

This chapter examines the law of torts related to defamation in England during the Tudor period. During this period, defamation was still almost exclusively within the province of the ecclesiastical courts, where it was the subject of suits for penance but not for damages, and this only changed around 1515. This chapter discusses specific cases of defamation filed during this period and analyses the legal bases of various court decisions. It also describes the factors that led to the evolution of the defamation law.Less

Something Came Between Us

John Gardner

in From Personal Life to Private Law

This chapter explores the sense in which the duties of the law of torts and the law of contract may be said to be ‘relational’. It takes a stand against the hyper-relationalism of many writings on ... More

This chapter explores the sense in which the duties of the law of torts and the law of contract may be said to be ‘relational’. It takes a stand against the hyper-relationalism of many writings on private law, and the hypo-relationalism of others. It does so in two moves. First, it introduces the idea of a ‘strictly relational’ duty, which is a duty that one has for the reason that one is in a certain relationship. The second move goes further to argue that private law duties need not be and often are not strictly relational. They are only ‘loosely relational’. The distinction between these moves is explored and refined by reflecting on the duty of care in the law of negligence, and its modern history. Finally, this chapter considers the import, but also the theoretical dispensability, of rights-talk in private law.Less