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Lecture 1

LAWS1012 Lecture Notes - Richard Posner, Road Traffic Act 1930, Deterrence Theory

by OneClass2446819 , Fall 2018
5 Pages
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Department
Law
Course Code
LAWS1012
Professor
Penelope Crossley
Lecture
1

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Week 1: General Introduction
I: The Historical Development of Tort Law
1. Origins of Tort Law
Tort law is the law of civil liability for wrongfully inflicted injury
Existence was designed for maintenance of public order
Without tort law, it was believed there would be much unrestrained vengeance and feuds
Form of legalised self help
Awards:
For the injured party, there was compensation and additional damages
Under action furti, plaintiff could recover at least double damages
If defendant caught red handed, then fourfold damages awarded
All these incentives mitigated vigilante justice
‘oa la of tot alled delit:
Developed in a piecemeal fashion
But jurisdictions created Codes which reduced tort law to bare essentials
Rests on 5 articles in the Code Civile which have remained in force virtually
unchanged
English law of tort
Did not create a general principle of tortious liability
Anglo-American lawyers remained with separate types of case and separate torts
American judge and jurist: Oliver Wendell Holmes wanted to find a common ground
for tortious liability and believed that to understand this, the full history of law of
torts must be examined. He decided we must look at forms of action
2. The Forms of Action
Forms of action: type of writ needed to bring action to courts
Forms of action have different procedures depending on the type of case
A standard form of writs was developed from previously ad-hoc basis
There were different standard writs for different actions
These standard forms of action formed foundations of modern tort law
The Writ of Trespass:
Trespass to land, trespass to goods, trespass to the person (including modern torts
of assault, battery and false imprisonment)
Commonality of these writs of trespass was that it required the defendant had acted
ith foe ad as o i et ais, ad i eah of the kigs peae, o ota
pacem
Cases not involving these requirements left to local courts peetig Kigs
Courts being overwhelmed with cases
Action for trespass shows its semi-criminal nature, since a defendant who did not
appear could be seized and imprisoned. If he cannot be found, he may be outlawed
Greater popularity of action of trespass due to stringent punishment for
defendant
Trespass on the Case
Vi et armis (with force and arms) soon became unsatisfactory as a requirement
Non-iolet tespasses ay ot e ale to eah Kigs Cout eause of this
requirement not serving justice
Plaintiffs had to prove why the defendant was at fault if there had been no crime
with vi et armis
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3. The Development of Fault-Based Liability
Writs of Trepass and Fault
The formulaic language used ont eh writs mean that it was not necessary to plead
the state of mind or culpability of the defendant
Write of trespass included cases of accidental injury hence, defendants fault
could not be taken for granted
Negligence and Action on the Case
Liability for negligence developed much more slower in tort law than in cases of pre-
existing relationships (or in modern terms, contract law)
Earliest examples of liability imposed in absence of pre-existing relationships: escape
of fire or dangerous animals
Actions for pure negligence were rare because existing law already covered most
situations forcible wrongs in trespass, non-enforcible wrongs in modern law of
contract, indirect harm (like the fire or dangerous animals) was covered by existing
actions in case
4. Eighteenth Century Developments
The Beginnings of Neglignece
Mitchil v Alestree (1676) 1 Vent 295
Plaintiff injured when one of the horses the defendant was trying to break in had
escaped and kicked her. On the first look (prima facie), the defendant would be
guilty of a forcible wrong and trespass on the case vi et armis
HOWEVER, the defendant could potentially be protected if it was believed by the
jury that the horse acted independently in contact with the plaintiff
Plaintiff alleged that the defedats og as to eak i the hoses
ipoidetly, ashly ad ithout due osideatio of the usuitaility of the
plae fo the pupose.
Plaintiff was successful
Also led to developed of vicarious liability
The Direct/Indirect Distinction:
5. The Classification of Obligations
Mode la has la of tot, la of otat, la of popety… ut fos of atio
were clumped together
Contract (assumpit) actions imposing personal obligations, rather than rights over
property
Equity imposed obligations on trustees and fiduciaries
The rest of those actions in trespass were not as easy to classify
From J.H. Baker, Introduction to English Legal History:
Law of torts is so extensive and boundaries indistinct
Old Feh od of tot deoted ay kid of legal ijuy… that is hy thee
was previously no distinction between breaches of contract and torts or
trespass. However, by the middle of the 17th century they were
distiguished ad tot a ee e doe hee thee is a speial
agreement, unless thee e duty y statute o oo la iuet.
modern understanding
Over the last century, expansion of tort of negligence has led to
reclassification of law of torts. However the concept of negligence has
changed in its primacy, as old tort law neer focused on it and plaintiffs might
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Description
Week 1: General Introduction I: The Historical Development of Tort Law 1. Origins of Tort Law Tort law is the law of civil liability for wrongfully inflicted injury Existence was designed for maintenance of public order Without tort law, it was believed there would be much unrestrained vengeance and feuds Form of legalised self help Awards: For the injured party, there was compensation and additional damages Under action furti, plaintiff could recover at least double damages If defendant caught red handed, then fourfold damages awarded All these incentives mitigated vigilante justice Roman law of tort called delict: Developed in a piecemeal fashion But jurisdictions created Codes which reduced tort law to bare essentials Rests on 5 articles in the Code Civile which have remained in force virtually unchanged English law of tort Did not create a general principle of tortious liability AngloAmerican lawyers remained with separate types of case and separate torts American judge and jurist: Oliver Wendell Holmes wanted to find a common ground for tortious liability and believed that to understand this, the full history of law of torts must be examined. He decided we must look at forms of action 2. The Forms of Action Forms of action: type of writ needed to bring action to courts Forms of action have different procedures depending on the type of case A standard form of writs was developed from previously adhoc basis There were different standard writs for different actions These standard forms of action formed foundations of modern tort law The Writ of Trespass: Trespass to land, trespass to goods, trespass to the person (including modern torts of assault, battery and false imprisonment) Commonality of these writs of trespass was that it required the defendant had acted with force and arms or vi et armis, and in breach of the kings peace, or contra pacem Cases not involving these requirements left to local courts preventing Kings Courts being overwhelmed with cases Action for trespass shows its semicriminal nature, since a defendant who did not appear could be seized and imprisoned. If he cannot be found, he may be outlawed Greater popularity of action of trespass due to stringent punishment for defendant Trespass on the Case Vi et armis (with force and arms) soon became unsatisfactory as a requirement Nonviolent trespasses may not be able to reach Kings Court because of this requirement not serving justice Plaintiffs had to prove why the defendant was at fault if there had been no crime with vi et armis
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