MODERN LAW
Civil law. We have seen that the Roman law of delicts, like the law of contracts, had no general principle. It was a law of specific wrongs.
Two stand out, however, for their generality: iniuria and damnum iniuria datum. On the basis of these the Civil law has built a general theory of civil wrongs. The extreme example of this generality is provided by the French Civil Code, which devotes only five of its 2,281 articles to ‘Delict and Quasidelict’. This brevity has, however, cast upon the courts a burden which, by the standards of a codified system, is excessive. Other codes are more explicit but still adhere to the principle of generality. Needless to say, the penal character of the Roman law has quite disappeared.lang=EN-US style='font-size:14.0pt; line-height:95%;font-style:italic'>Common law. English law has a system of specific torts and is therefore at first sight more akin to the Roman law than is the modern civil law. There is, however, an important difference (apart from that between penalty and compensation) which must be understood before any comparison is attempted between the law of delicts and the law of torts. The English common law has no actions in rem in the Roman sense and no purely possessory remedies. The remedies for the law of property are provided by the law of torts. Thus, if a possessor wishes to assert his possession against a person who disputes it, he must claim that the latter has committed the tort of trespass; if it is title (to goods) that is in issue, he must allege the tort of conversion or detinue; or if it is his right to an easement, he must allege nuisance, and so forth. And since it must be possible to assert such property rights against even a defendant who acts in good faith or who is unaware that he is interfering with them, these torts are of strict liability[100]—they are independent of fault.
So it is that the tort of conversion, for example, which bears some resemblance to fur turn, can be committed by one who believes in good faith that the goods are his. Moreover, since interference with property rights may occur without the plaintiff’s suffering any loss, damage is not of the essence of these torts. On the other hand, the remedies are not exclusively proprietary in function. The plaintiff may be concerned not to assert his title (which the defendant may not dispute) but to secure compensation for damage done. They are two-faced remedies, serving sometimes to assert title, sometimes to obtain compensation for a wrong. The Roman law, on the other hand, keeps clearly distinct the two functions. For although in an action on the lex Aquilia, for example, the plaintiff’s title may be in issue, since he must be prepared to show that he is owner, the essence of the action is the wrong and the damage, and conversely, while in a vindicatio the plaintiff may obtain compensation for the deterioration of the thing, the central issue is one of title. It is only with those torts therefore, such as defamation and negligence, in which compensation is the exclusive purpose of the remedy (or, to put it in another way, in which the plaintiff need show no title, but simply damage) that any strict comparison is possible.
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