The Roman law of obligations did not come to a halt with the end of the Roman world. From the 11th century onwards there was a revival of law studies in what were to be the first European universities and these law studies were based upon the rediscovered sources of Roman law
28 Cf Samuel, Foundations, pp 193–96.
(later to be called the Corpus Iuris Civilis).30The medieval jurists at first were content simply to comment upon (gloss) the Roman texts. But this glossing later took on a dynamic aspect as harmonisation of discordant texts were attempted and common denominators were induced out of the disparate Roman juristic writings to form the basis of general notions and principles. For example, the Roman jurists had never developed a law of contract let alone a general theory of obligations. They had been content with a list of specific types of contract (sale, hire, loan, stipulation and so on), observing only two things. First, that all of these specific types had the common denominator of agreement (conventio);31 and, secondly, that there was a need for some abstract contracts to cover those situations which fell outside of the typical transaction.32It was the medieval Roman and canon lawyers, using
conventio and the abstract contracts such as pacts and stipulations, who
set in train the process of moving the law of contracts to a law of contract (from an inductive to a deductive approach).33By the 16th century, the civilian jurists were talking in terms of a general theory of contract based on consent, and this general notion of consensualism was developed into the modern theory of contract by the School of Natural Law. Pacta sunt servanda (agreements must be kept) became an axiom of Romanist legal thought.34In the Code civil this general theory of contract is given full expression in Art 1134: ‘... contracts legally formed have force of legislation between those that have made them.’
The law of delicts was also subjected to an increasing systematisation by the later civil lawyers. In the Roman sources the law of delicts was, procedurally, little more than a law of actions in that there were a range of separate delicts and quasi-delicts dealing with particular types of harm.35Within these separate delicts, of which the
most important was the action for wrongful damage based upon the Lex
Aquilia, the Romans had again formulated some common denominators
based upon wrongful behaviour. Moreover, they had also developed some elementary ideas with regard to blameworthiness (culpa), causation and damage.36 However, they never developed a general
theory of liability. Such a development was again achieved by the later
30 See Jolowicz, Roman Foundations, pp 1–5; Stein, Institutions, pp 75–80. An excellent introductory French work is Carbasse, J-M, Introduction historique au
droit, 1998, PUF.
31 D.2.14.1.3. 32 D.19.5.15.
33 Op cit, Ourliac and de Malafosse, fn 8, pp 84–89, 125–28; Zimmermann, pp 537–45, 561–69.
34 Zimmermann, pp 576–77.
35 See, generally, Kolbert, CF, Justinian: The Digest of Roman Law, 1979, Penguin. 36 See, generally, Lawson, FH, Negligence in the Civil Law, 1950, OUP.
Chapter 1: General Introduction
civilian jurists using the notion of culpa and this idea of fault had the advantage not only of according with the prevailing moral ideals but of acting as a balance between freedom of action and the causing of harm.37Where an act caused damage, the loss would have to be borne
by the victim except when there was fault; but if there was fault, then according to Art 1382 of the Code civil the actor would have to make reparation. The general compensation claim based upon fault, causation and damage is one of the notable features of the French code. In the German Civil Code, by contrast, damage, causation and fault are not enough: the victim must show that a specific interest (life, body, health, freedom, property or other right) has also been invaded (§ 823).38
In addition to this general liability based upon culpa, some of the later civilian jurists never lost sight of a parallel idea to be found, seemingly, in the Roman law of delicts and quasi-delicts. This was the idea of liability without fault. Such strict liability took two broad forms. There was, first, the idea of a direct liability between plaintiff victim and defendant for harm done by some person or thing under the control of the defendant. And, secondly, there was the idea of a vicarious responsibility whereby one person, the defendant, was held liable for a harmful act committed by another person. Accordingly, in Roman law, a contractor could be directly liable for damage done by himself or by those whom he employed to carry out the work.39Equally an owner of a building was, more indirectly, strictly liable for damage done by things falling or thrown out on to a public place40and a paterfamilias was indirectly liable, up to the value of the slave or child, for damage caused by children and slaves in his power.41In fact these two ideas were never clearly separated in Roman law and so, for example, Gaius justifies the liability of an innkeeper for the theft by another of a guest’s property on the basis of the innkeeper’s own fault in employing bad men.42
This text is useful for another reason as well: for it indicates that the jurists had some difficulty with the whole idea of liability without fault. Accordingly, it is possible to see this field of non-contractual liability as dealing only with an evidential presumption of fault. In other words there was no third principle as such concerned with liability for damage arising neither from a contract nor from culpa. Liability was simply
37 See, generally, Zimmermann, pp 1031–49. 38 Zimmermann, pp 1036–38.
39 D.19.2.25.7.
40 D 44.7.5.5. And see, generally, D.9.3. 41 See, generally, D.9.4.
based upon a presumption of fault. This difficulty was to plague the later civilians with the result that there are no paragraphs devoted as such to strict liability in the German Civil Code.43Even in France, which
ended up with a general article in its civil code imposing a liability for damage done by persons and things under the control of another (Art 1384), the jurists were preoccupied with fault up until the 20th century.44It is only with the industrial and technological revolution that
the French jurists escaped from the fault principle towards one based upon risk. Ubi emolumentum ibi onus (where there is profit there is also burden) became the basis of what is now called vicarious liability, that is to say the liability of an employer for harm caused by employees. With respect to things, ideas such as ‘collective solidarity’ based upon the widespread existence of insurance have come to displace liability for individual acts founded on fault.45 Whatever the theoretical position
may have been before the present century, there is now, thanks to the work of the modern French civilians, a powerful parallel principle of strict liability in the law of obligations for damage done by things.
The Roman jurists never developed, either, a general non- contractual unjust enrichment action. Instead they used a number of remedies to deal with debt claims that could not be rationalised under contract and these claims were subsequently classified by the Roman jurists under the heading quasi-contracts.46 The two most important actions were the condictio, a free-standing in personam debt action that could be used in a range of restitution situations,47 and the actio
negotiorum gestorum contraria. This latter remedy was available to
someone who had reasonably intervened into the affairs of another in the sole interests of that other.48 However, in contrast to the situation concerning quasi-delicts, the Romans did hint at a general principle that might be said to underlie these non-contractual debt claims: no one should be allowed unjustly to enrich themselves at the expense of another.49 This general principle was seized upon by the later civil lawyers50– in particular, Hugo de Groot (Grotius)51– as the cause or
43 Zimmermann, pp 1124–26. 44 Op cit, Gazzaniga, fn 5, pp 261–63.
45 Op cit, Gazzaniga, fn 5, pp 268–71. Indeed, it has recently been proposed by a French writer commenting upon a decision by the full assembly of the Cour de
cassation that delictual and quasi-delictual civil liability should be replaced by the
term ‘accident compensation’: Cass ass plén 25.2.2000; JCP.2000.II.10295 note Billiau at p 753.
46 J.3.27pr.
47 J.3.27.6; and see, eg, D.12.6 and D.12.7. 48 J.3.27.1.
49 D.12.6.14; D.50.17.206.
50 See, generally, van Zyl, DH, ‘The general enrichment action is alive and well’, in
Unjust Enrichment [1992] Acta Juridica 115.
Chapter 1: General Introduction
principle underlying all of the quasi-contractual remedies with the result that it in some civilian systems it came to eclipse the specific remedies of Roman law. Thus the German Civil Code states in § 812: ‘A person who acquires something without any legal ground through an act performed by another or in any other manner at another’s expense, is bound to render restitution.’52In this respect the German Code stands
in contrast to the Code civil which has no general enrichment action; it simply keeps the specific Roman quasi-contractual claims together with a range of other specific instances where an enrichment cannot be retained. However, the Cour de cassation has recognised unjust enrichment as a general principle of law outside of the Code,53and so a
defendant who obtains an enrichment without a legitimate cause may have to make restitution to any person at whose expense the enrichment has been procured. The law of obligations in most of the civilian systems thus subdivides into three areas: the law of contract, the law of delict and the law of unjust enrichment.
2 THE ENGLISH LAW OF OBLIGATIONS
When one turns to English law one encounters both similarity and difference. Certainly, as we have mentioned, the common lawyers are now beginning to talk in terms of a law of obligations.54Yet the civil lawyer who attempts to apply the symmetry of the codes to the case law and legislation of English law will have to proceed with care. For the history of English legal thought turns out to be quite different from that of the systems of the civil law tradition.55