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 ...
More
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.
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’. ...
More
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?
Peter Birks
Eric Descheemaeker (ed.)
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198719274
- eISBN:
- 9780191788543
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198719274.001.0001
- Subject:
- Law, Law of Obligations, Legal History
This volume, the first in the Collected Papers of Peter Birks series, contains notes on a series of lectures on the Roman law of obligations which were delivered in Edinburgh in 1982. Their ...
More
This volume, the first in the Collected Papers of Peter Birks series, contains notes on a series of lectures on the Roman law of obligations which were delivered in Edinburgh in 1982. Their posthumous publication gives, for the first time, a comprehensive insight into Birks’ views on the topic, which are relevant not only in a Roman context but also from a modern English perspective. The book examines, in turn, the law of contracts with its general principles and the rules applicable to each of the transactions mentioned in the Institutes; then the law of delicts with its three main pillars (theft, loss wrongfully caused and iniuria-contempt); finally the miscellany of residual obligations from which the later categories of quasi-contracts and quasi-delicts, but also the modern law of unjust enrichment, emerged.Less
This volume, the first in the Collected Papers of Peter Birks series, contains notes on a series of lectures on the Roman law of obligations which were delivered in Edinburgh in 1982. Their posthumous publication gives, for the first time, a comprehensive insight into Birks’ views on the topic, which are relevant not only in a Roman context but also from a modern English perspective. The book examines, in turn, the law of contracts with its general principles and the rules applicable to each of the transactions mentioned in the Institutes; then the law of delicts with its three main pillars (theft, loss wrongfully caused and iniuria-contempt); finally the miscellany of residual obligations from which the later categories of quasi-contracts and quasi-delicts, but also the modern law of unjust enrichment, emerged.
