The Division of Wrongs: A Historical Comparative Study

In Justinian’s Institutes, obligations arising from civil wrongs are divided in two classes: they are either ex delicto (‘from a wrong’) or quasi ex delicto (‘as though from a wrong’). This division of wrongs into wrongs proper and quasi-wrongs has permeated the whole history of the civilian tradition, surviving to the present day in the French Civil Code. Yet, where the line between both groups lies and why they constitute two separate classes is everything but obvious on the face of the texts. In contrast, the common law has historically had only one class of civil wrongs. Despite procedural divisions (such as that between torts and equitable wrongs), the class is unitary in substance: all wrongs are breaches of duty and all breaches of duty are wrongs. This thesis does two things: first, it explores the rationale behind the Roman division of wrongs and its fate in a major Romanist jurisdiction, France; second, it examines the structure of the English law of wrongs in the light of the civilian experience. Three main points are argued for. The first is that the Roman division corresponded to that between fault-based and situational liability. The second is that modern French law misunderstood this division, redrawing the line between negligence and malice; but by so doing involved itself into considerable difficulties. As a whole, therefore, the civilian tradition suggests that the first level division of the law of wrongs is into three, according to the degree of blameworthiness (dolus-culpa-casus). English law too, it is suggested, should resort to this classification. From its formulary age it has inherited wrongs which are ‘named so as to intersect’ (Birks). The existence of these mismatched categories continues to cause serious difficulties. However, a realignment of the law along the lines identified by civilian scholarship would make it possible to sort them out.