The reception of Justinian's scheme

(a) General observations

Justinian's fourfold scheme was received in Europe together with the substantive Roman law; it has provided, historically, the most influential model for structuring the law of obligations.^{[95] [96] Throughout the centuries systematic treatises have been based on it: from Donellus' Commentarii de Jure Civili and Georg Adam Struve's Jurisprudentia Romano-Germanica Forensis to Thibaut's System des Pandektenrechts, to mention three important works from the times of humanism, usus modernus pandectarum and pandectism." It has also been given legislative endorsement, for instance in the French Civil Code, which states in art.}

(b) The distinction between delict and quasi-delict

Generally speaking, it appears that the two quasi-categories were regarded as the major source of uneasiness and dissatisfaction. As far as the distinction between delict and quasi-delict is concerned, Justinian himself had already largely removed its raison d'etre by tampering with the quasi-delicts under the auspices of a generalized fault requirement. If liability for delict, as well as for quasi-delict, is based on fault, one can, of course, try to distinguish between different types of fault. Thus we find the theory that delict is characterized by the fault of the tortfeasor himself, quasi-delict by culpa imputativa.^[104] Others confined liability for delict to the infliction of intentional harm and regarded negligence, culpa propria, as the distinctive characteristic of quasi- delicts ("...delictum est vel verum, vel quasi delictum. Illud ex dolo, hoc ex culpa committitur").^[105] But these propositions are unsatisfac­tory. The former cannot accommodate the index qui litem suam fecit, the latter, especially if it is carried through even in cases of liability under the lex Aquilia, leads to a restructuring that looks, at first glance, as dramatic as it is irrelevant in its practical effect; for wherever negligent and intentional causation of harm are put on an equal footing—as, typically, in artt. 1382, 1383 of the code civil—a classification of delicts based on the culpa/dolus dichotomy does not serve a structurally useful purpose. It is not surprising, therefore, that the distinction between delit and quasi-delit is without practical relevance in French law,¹⁰⁹ and that, generally, in the course of the 19th century, both categories were merged into one.¹¹⁰ The unfortunate consequence of this age-old misinterpretation of the true basis of the law of quasi-delict, and of its final amalgamation with the law of delict, was the fact that strict liability did not fit into the system any longer.

(c) The distinction between contract and quasi-contract

The quasi-contracts did not have a much smoother passage through the history of private law. Neither the haphazard composition of this category nor the perceived lack of a positive common criterion distinguishing it from contract, delict and quasi-delict could appeal to systematically minded jurists. Attempts were therefore made, particu­larly during the 19th century, to tag the various quasi-contracts to those (proper) contracts with which they appeared to be most closely related, and in this way to amalgamate the two categories.¹¹² This approach, however, was bound to lead to insurmountable difficulties in the case of unjustified enrichment; for whilst the contract of loan for.'onsumption and the claims for unjustified enrichment grew histori­cally from the same root, the two institutions no longer had much in common once the condictio as the procedural remedy applicable to

^¹ Tie cases of strict liability laid down in artt. 1384-1386 do not fall under "quasi-delit" but are generally referred to by the term "responsabilite". On the origin of these provisions, see. most recently, Watson, Failures, pp. 1 sqq.

On the history of quasi-delicts generally, see Hochstein, Obligationes. pp. 34 sqq.; cf. also Wolodkiewicz, in: Laformazione storica, vol. Ill, pp. 1288 sqq.

Cf. in this context the observation already made by Lorenz von Stein, Zur Eisenbahnrechts-Biidung (1872'1. p. 15: "Deutschland ist geradezu unerschb'pjlich in Abhandlungen uber Ulpian und Papinian, aber vom Eisenbahnrecht weiss es so gut ah nichts" (Germany is just about inexhaustible in treatises on Ulpian and Papinian, but of railway law it knows little more than nothing). On the treatment of non-contractual liability for damages without fault by the natural lawyers and in the codifications influenced by them, see Hans-Peter Benohr, "Ausservertragliche Schadensersatzpflicht ohne Verschulden? Die Argumente der Natur­rechtslehren und -kodifikationen", (1976) 93 ZSS 208 sqq.

¹¹² Cf, for example, Arndts, Pandekten. § 242 and passim; Puchta, Pandekten. 6. Buch, 2. Kapitel; Vangerow, Pandekten. 5. Buch, 4. Kapitel. both of them had been abandoned.^[106] As a result, the Swiss codification^[107] confined the third category (besides contract and delict) to unjustified enrichment as the "most relevant"^[108] quasi-contract. However, it is hardly justifiable to attach so much more weight and significance to the law of unjustified enrichment than to negotiorum gestio.^[109]

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