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comprehensive summary of the first part of lecture 1
Uitgebreide Samenvatting
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TORT WEEK 1AThe Law of Torts and the Law of Delict
Literature
Teacher from this lecture (old dude) says that we need this literature for ‘this’ part of the
course.
General Principles
Prof. Winfield: ‘tortious liability arises from a duty primarily fixed by law: this
duty is towards persons generally and its breach is redressible by an action for
unliquidated damages’.
Winfield & Jolowicz, Tort, 17th ed. W.V.H, Rogers
Here prof. Winfield gives us a definition of tort law in general. Such a general definition will
not sound unfamiliar to those with a civil law background. Civil lawyers are used to a general
tort law. A general definition. Our civil codes have one section devoted to the law of tort
(illegal acts) and liability arising out of that heading. In the common law system it is still
being debated. Under common law it is not up to text book or law professors (in favour of a
general law of tort) but it is up to the courts and courts still have not decided that the common
law is based on a general law of tort.
Nature of a tort
Tort or Torts?
General principle of liability theory
Only specific torts
No tort of eviction: Perera v Vaniyar, 1953
No tort of perjury: Hargreaves v Bretherton, 1958, affirmed: Roy v Prior, 1969
New [?] tort of intimidation: Rookes v Barnard, 1964, per Lord Reid
[1793 prec.?]
There are also torts in plural.
General theory of liability in common law is not taken in Civil law. In civil law courts make
decisions on specific tort. Under English law ther’s been attempts to make up new torts. Ofc,
since if courts tend to decide whether a tort exists that also means that in principle courts can
decide to create new torts.
Various parties have attempted to create new torts. They wanted to create the tort of eviction
created, acts of a landlord that in December / mid winter very cold he wanted to get rid of a
tenant so he cut off the supply of electricity / gas so tenant was freezing and had to vacate the
premises. The tenant was living there with family / baby, so he had to go away there was no
choice. That’s outrageous conduct that’s in breach of the lease to begin with so contract law
at stake.
The plaintiff wanted to claim some punitive damages against the landlord, wanted to punish
the landlord. He wanted on top of real damages a punitive amount, but only possible if he
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,could bring the claim on tort law, but the court refused to acknowledge tort of eviction as a
new tort.
Another case there was an attempt to create a tort of perjury but if someone perjures himself
during a trial that is of course a criminal act. He can be punished for it under criminal law,
but can he be held accountable as a tort of perjury giving rise to damages? Court rejected this
so called tort of perjury due to public policy reasons as witnesses have to be allowed to bring
testimonies in court without fearing the monetary consequences if liability from a tort existed.
So courts aren’t always willing to create new torts, of course, since the 2 nd half of the 20th
century the courts are basing their reasoning on that “Creating a new tort”” should be
something that a legislator does, not the court but they still have this power to create new
torts. But in 1964 they did so with the new tort of intimidation. Because Rookes and Barnard:
a case where trade union had intimidated the employer of Mr. Rookes who worked for British
airway, the trade union said that if they didn’t dismiss him they’d go on strike so the
employer dismissed Mr. Rookes. The case argued that it was intimidation, the person wanted
to be able to choose whether they were part of a trade union or not and now the house of lords
agreed with him. There are writers that have shown that perhaps there was already a
precedent from 1793 that applied. The precedent never got repracticed since, but it is in
theory a possibility to create a new tort even if this particular one wasn’t new.
Note:
Procedural speaking the civil and common law have the same background.
In common law you need a “writ” to be issued by chancery so you had the right to go to the
royal courts of law.
In classical roman law, it was the same: actio they were found in the edict of the praetor.
Similar shit. That’s the main reason why there are catalogues of torts / delics in both system.
The remarkable resemblance between classical Roman law with regard to ‘Delicta’ and
the Anglo-American ‘Law of Torts’
Because both in classical roman law and Anglo-American law there are more than one illegal
act which could lead to liability when someone suffers damage from acts of another.
1. Not just one ‘illegal act, but a catalogue of torts (resp. delicta)
There were various delicta in Roman law. There are catalogues of tort. Historically speaking,
these torts and these delicta where what we nowadays call crimes. But in Roman times, the
Roman governments did not go after most of the perpetrators of these crimes. Especially
when they were crimes against private persons. When you stole something that was an illegal
act, a crime, but the victim of theft should be the one to go after the perpetrator of the crime
and could ask for a penalty against the perpetrator.
Although we always stress that the common law is not based on Roman law, we see
historically speaking friends which are the same with respect to the development of classical
Roman law and the development of English law from the middle ages on. What makes it
different from modern civil law systems is that Roman law in its medieval form was Roman
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, law as it was taken up by various European countries so it had its own development from
Roman law but the resemblances between classical Roman law and English law is very
noticeable.
That means that also in the middle ages in England, various crimes and illegal acts could not
lead to prosecution by government but only lead to prosecution by victims. It could go to a
court of law and claim a penalty which a perpetrator had to pay to the victim.
Torts and Delicta
The same background: the old common law was (until 1854 (!)) based on actions
(just like classical Roman law)
Writ = action
Specific actions for specific cases
Why is this similar in both systems? In classical roman law and common law? Because
procedurally speaking they have the same background. The old common law was until 1854
based on actions. These actions in the common law where called writ. If you wanted to go to
court of law you went to chancery and the writ would be issued by him and that gave you
right to go to court to present your claim before the Royal judges.
That was the same in classical Roman law. In classical roman law, it was the same: Roman
law was based on actio and they were found in the edict of the praetor. Similar shit. That’s
the main reason why there are catalogues of torts / delics in both system. Praetor decided
whether there was an action to be presented before the judge. In both cases there were only
specific actions for specific cases. No general actions like we are accustomed to in our civil
codes. General actions which can be applied to each and every case.
Torts
Trespass (actionable per se; property torts)
- To the person: Assault, Battery, False imprisonment to land
Interference with goods (property torts)
- (Conversion, Detinue (abolished), Trespass to goods)
Nuisance
- (interference with quiet enjoyment neighbour)
o Negligence
The rule in Rylands v Fletcher, (strict liability) (bringing on your lands anything
likely to do mischief if it escapes)
Defamation (Libel and Slander)
Deceit
Malicious falsehood (business interests)
Breach of statutory duty, etc.
Here we have various torts.
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