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In order to understand and justify the law of torts it is necessary to understand its place on the map of private law. The law of torts is not a free-standing subject. Torts belong in the same sequence as breach of contract and equitable wrongs. Torts is a catch all category of ‘other wrongs’. The law of torts has no free-standing existence independent of the primary rights, such as property rights, upon which it depends. Within the law of torts the picture is one of chaos. Torts are classified according to context (e.g., occupiers, products), degree of fault (e.g., negligence) and right infringed (e.g., defamation). The economic torts have no inherent unity. No subject can be understood in the way presented in the standard texts. Classification according to primary right is to be preferred, and the so-called ‘tort of negligence’ should be abandoned.

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.

In England, tort law is characterised by its traditional approach. English common law has its roots in medieval times but is presumed to have been there since time immemorial. In the area of non-contractual liability, there are no rules but only torts that provide a remedy (for example, damages) if something has gone wrong in a particular way. The most important and most general tort is the tort of negligence. This tort imposes liability on someone who has not acted carefully but only if this person owed the other person a duty of care. This latter aspect is the most characteristic feature of English tort law and in a number of tort law areas it still serves as an important obstacle for liability. This chapter discusses the origins of tort law in England, history of tort of negligence, intentional torts to the person, intentional interference with goods, and rules of stricter liability including public and private nuisance.

Unlike English law, neither Scots nor South African law recognizes a tort of negligence. However, both Scots and South African law recognize the possibility of delictual liability where one person negligently harms another. That is, both recognize that, where a person causes harm by conduct that falls short of the standard of the reasonable person, he could be held delictually liable to repair the harm. However, in neither Scots nor South African law does negligence suffice for delictual liability. Two further conditions have to be satisfied. One is that the negligent conduct breached a duty owed to the harm-sufferer. The other is that the harm suffered was not too remote from the negligent conduct. This chapter compares the way that each of the above-identified conditions for delictual liability, namely negligence, duty, and remoteness, has been treated in the two legal systems. It argues that Scots and South African law by and large treat negligence, duty and, remoteness in the same way. It also shows that the South African delict scholars' analysis, both of negligence and of duty, is mistaken.

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’).