DELICT AND THE FRENCH CODE

I would like to give very briefly one more example of the impact of tradition. There are only five articles in the Code on torts, yet there are twenty-seven articles on the relatively unimportant contract of mandate, mandat.

1382. Every action of a human which causes injury to another binds the person through whose fault it occurred to make it good.

1383. Everyone is responsible for the injury which he caused not only by his action, but also by his negligence or imprudence.

Article 1383 may appear to state that failure to act gives rise to the action, but we know that this was not the purpose of the draftsmen.^[41] With the articles we can begin to answer some of the questions I have raised and which should be addressed by anyone interested in understanding tort law.

Roman law drew a distinction between delicta, delicts, and quasi delicta, quasi-delicts. Both gave rise to private law actions, but what the ground of the distinction was is not clear. Above all, the classification of quasi-delicts was difficult to understand, and debate rages to the present day.⁴⁵ One influential

- but clearly inaccurate - view which goes back at least to Accursius was that delicta were intentional wrongs, quasi delicta were negligent wrongs.

One can distinguish three sorts of wrongs from which some damage may arise: those wrongs which amount to a crime or an offence; those wrongs of persons who fail in their agreed on obligations such as a seller who does not deliver the thing sold, a tenant who does not make the repairs he is bound to do; and those wrongs which have no relation with agreements and which do not amount to a crime or an offence, as if light-mindedly one throws something out of a window which spoils a suit; if animals not properly guarded do some damage, if one carelessly causes a fire, if a building which threatens to collapse, not being repaired, falls on another and there causes damage.

Of these three types of wrong, only those of the last category are the subject of this title; because crimes and offences ought not to be mixed with civil matters, and everything which concerns agreements has been explained in the first book.

Thus, Domat cut out all treatment of delicta that he classified as crimes. But one delict thus omitted was wrongful damage to property by an action brought under the lex Aquilia. The action was for any injury caused negli­gently or deliberately by a human being. And this injury is central to any modern discussion of torts or delicts.

The point of article 1383 was to indicate that negligence would also give rise to an action, yet apart from ancient and legislative history 1382 and 1383 could have been combined in one article.

But the quotation from Domat tells us much more. He sees, as the quota­tion tells us, torts as covering something thrown out of a window - this resulted in article 1384 which was seldom used until late in the ninteeenth century; damage by animals - article 1385; and the collapse of a building

- article 1386. The main subject-matter of torts, injuries caused negligently by a human, were excluded from consideration, hence the Code civil has so few articles on torts, but the explication of them in Dalloz is lengthy.

My point is that to understand law in society one must understand law in books; and that to understand law in books one must know how it came to be

45 See, most recently, O F Robinson, “Justinian and the compilers' view of the ludex”, in H G

Knothe and J Kohler (eds), Status Familiae, Festschrift fur A Wacke (2001) 389; O F Robinson, “Gaius and the class of quasi-delicts”, in Vincula luris, Studi M Talmanca (2002) 120. in books. The development of law in books is not a straightforward matter. It is not a simple reflection of the interests of those in a position to make law.

E.