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Published online by Cambridge University Press: 16 January 2009
Just as all the best titles have already been used, so have all the best opening lines. To begin, I can do no better than quote the opening words of the inaugural lecture given by my predecessor, Peter Stein, when he took up the Chair of Jurisprudence in the University of Aberdeen. I have changed the names. “When a pupil is appointed to succeed his master in any office it is natural that his feeling of honour should be tempered by humility. But when the master is a scholar of the calibre of Peter Stein, the pupil must exert himself to prevent his humility from degenerating into despair.”
1. Stein, P.G. “Legal thought in eighteenth century Scotland” (1957) Juridical Review 1–20 (reprinted in his The character and influence of the Roman civil law (London and Ronceverte 1988), pp. 361–380).Google Scholar
2. Stein, P.G.Roman law and English jurisprudence yesterday and today (Cambridge, 1969),Google Scholar reprinted, Ibid. pp. 151–165; Eckermann, J.P.Conversations with Goethe, trans. J. Oxenford (London 1971), p. 313.Google Scholar
3. Maitland, F.W. “The making of the German civil Code” in Collected papers ed. Fisher, H.A.label (Cambridge 1911), III 474–488 at 487.Google Scholar
4. Hegel, G.W.F.Lectures on the philosophy of world history, trans. Nisbet, H.B. (Cambridge 1975),p. 21.CrossRefGoogle Scholar
5. See recently Henderson v. Merrett Syndicates Ltd. [1995] 2 AC. 145; White v. Jones [1995] 2 AC. 207.
6. Cf. on the relation between legal history and comparative law, H. Kötz, “Was erwartet die Rechtsvergleichung von der Rechtsgeschichte?”(1992) 47 Juristen Zeitung 20–22.
7. Oxford, 1910.
8. I discuss this more fully in sections IV and VI (iii) of my paper “Limiting liability: Roman law and the civil-law tradition” (1995) 70 Chicago-Kent Law Review 1515–38.
9. There were exceptions: notably the strict liability of ship owners, inn keepers and stable keepers for loss sustained by their customers on their premises, and the occupier's liability for objects thrown from a building into a public place.
10. Gaius, Institutes 4.75.
11. Donellus, H.Commentarii iuris chili (ed. used: Opera omnia, Florence 1840–47) 15.51.4.Google Scholar
12. 12 The qualification is important, but Johannes Voet (see n. 14), writing in 1698, notes in this context that slaves are not in use “among us and many other peoples”Commentarius 9.4.10.
13. Grotius, H.De iure belli ac pacts (ed. used: Blaue, Amsterdam 1646) 2.11.13.Google Scholar
14. Voet, J.Commentarius ad Pandectas (ed. used: vol. I: Verbessel, Leiden 1698; vol. II: de Hondt, The Hague 1704).Google Scholar
15. Voet, Commentarius 14.1.5, 14.3.2.
16. Voet, Commentarius 14.1.5.
17. S. 185 and Sch. 7 part I. Cf. also The Tojo Maru [1972] A.C. 243 (no right for salvors to limitation, a position subsequently reversed by the Merchant Snipping Act 1979 in adopting the Convention on Limitation of Liability for Maritime Claims 1976); The Nicholas H 005B;1996] 1 A.C. 211, 227–228.
18. See Cornish, W.R. and Clark, G.de N.Law and society in England 1750–1950 (London 1989)Google Scholar,pp. 246 ff. for the faltering reception of ideas of limited liability in nineteenth century England.
19. Paul, lib. sing, de portionibus quae liberis damnatorum conceduntur D. 1.5.7, Julian, 69 digestorum D. 1.5.26; Paul, lib. sing, ad SC Tertullianum D. 50.16.231.
20. Summarised in D. 1.5.26.
21. Nor do many of the writers of the civil-law tradition, e.g. in Domat, France J.Les loix civiles dans leur ordre naturel (ed. used: Gosselin Paris 1713)Google Scholar 1.2.1.6; Pothier, R.J. Traité des successions 1.2.1; Coutumes des duché, bailliage et prév^té d'Orléans 17.2.6 (both cited from Oeuvres, Paris 1861, ed. Bugnet, vols. 1 and 8). See also Code civil art. 725.Google Scholar
22 See the summary given by Dillon, L.J. in Burton v. Islington Health Authority [1993] Q.B. 204, 226, 227.Google Scholar
23. For general discussion, see W. Selb, "Schädigung des Menschen vor Geburt: ein Problem der Rechtsfähigkeit?" (1966) 166 Archiv fÜ die civilistische Praxis 76–128; and, from a Scottish perspective, Scottish Law Commission report no. 30, Liability for antenatal injury (1973).
24. See e.g. § 1 BGB; for England, esp. Re F (in ulero) [1988] Fam. 122; also Paton v. Trs. of BPAS [1979] Q.B. 276; C. v. 5. [1988] Q.B. 135.
25. Switzerland: ZGB art. 31; Netherlands: NBW I art. 2.
26. Japanese Civil Code s. 721.
27. France: Gaz. Pal. 1972.1.162, 165 (case of 1971); Scotland: Cohen v. Shaw 1992 S.L.T. 1022; Quebec: Montreal Tramways v. Leveille [1933] 4 D.L.R. 337. In some jurisdictions the problem is dealt with by construing the terms of the Civil Code rather than by analysis of duty, breach etc.: e.g. in Germany, the right to sue for pre-natal injuries has been recognised by the court (though it is not in the BGB) by construing the words "of another" (eines anderen) in § 823(1) BGB: see BGHZ 58.48, 50 (1972); also BGHZ 8.243, 248 (1952).
28. Burton v. Islington Health Authority [1991] 1 Q.B. 638, [1993] Q.B. 204 (CA); De Martell v. Merlon … Sutton Health Authority [1993] Q.B. 204.
29. As, for example, in Watson v. Fram Reinforced Concrete Company (Scotland) Ltd. 1960 S.C. 92. Cf, for German law, BGHZ 58.48, 49–50.
30. Cf. the analysis propounded by Hohfeld, W.N.Fundamental legal conceptions as applied in judicial reasoning (ed. W.W. Cook, New Haven, 1923).Google Scholar
31. See Burton, at p. 228F, following the Australian case Watt v. Rama [1972] V.R. 353, 360–361.
32. Except by saying that we ought not to examine the components duty, breach and damage individually too closely: Home Office v. Dorset Yacht Co. Ltd. [1970] AC. 1004, 1052per Lord Pearson; Burton, at p. 218B per Phillips J.
33. For the distinction drawn here, cf. Birks, P. “Fictions ancient and modern” in MacCormick, N. and Birks, P. (eds.), The legal mind (Oxford 1986), pp. 83–101.Google Scholar
34. Contra, Burton, at p. 227D-E per Dillon LJ; Thomson, J.M.Delictual liability (London 1994), p. 191.Google Scholar
35. Congenital Disabilities (Civil Liability) Act 1976, which applies to births after 22 July 1976 (s. 4(5)).
36. McWilliams v. Lord Advocate 1992 S.L.T. 1045, 1048; Hamilton v. Fife Health Board 1993 S.C. 369, 384A, 389H (Inner House); welcome exceptions are Cohen v. Shaw 1992 S.L.T. 1022; Hamilton v. Fife Health Board 1992 S.L.T. 1026, 1029 (Outer House). Note, however, (i) that Me Williams and Hamilton were essentially concerned with statutory interpretation (the meanings of “person” and “personal injuries” in the Damages (Scotland) Act 1976); (ii) that, where the claim was by parents for loss of society, it could not be justified as being brought in the interests of the unborn child.
37. See Th. Mayer-Maly, “Die Wiederkehr von Rechtsfiguren201D; (1970) 23 Wissenschaft und Weltbild 270–275.Google Scholar
38. Date of birth: 15 August 1822; letters patent: 22 April 1847 (I owe this information to Mr H.G.Button).
39. Maine, H. “Roman law and legal education”, repr. in his Village Communities in the East and West (7th. ed., London 1895), pp. 330–383 at p. 376.Google Scholar
40. For fuller discussion, see Birks, P. “The foundation of legal rationality in Scotland” in EvansJones, R.The civil law tradition in Scotland (Edinburgh 1995), pp. 81–99.Google Scholar
41. For general discussion, see Munzer, S.R.A theory of property (Cambridge 1990),CrossRefGoogle Scholar pp. 37 ff., 47 ff. For further discussion of this subject and of Moore's case, see now Harris, J.W “Who owns my body?” (1996) 16 Oxford Journal of Legal Studies 55–84.CrossRefGoogle ScholarPubMed
42. (1988) 249 Cal.Rep. 494 (Cal. CA): (1990) 793 Pacific Rep. 2d. 479 (Cal. Supreme Court).
43 For a conclusion to essentially the same effect in a quite different context, see S. Gardner, “Knowing assistance and knowing receipt: taking stock” (1996) 112 L.Q.R. 56–94, esp. at 90–94.
44. The notion that it is essential to property that it should be possible to place a money value on it is also found in the law of California: Yuba River Power Company v. Nevada Irrigation District (1923) 207 Cal. 521,523.
45. It should be noted that questions such as this may be resoluble without entering on the question of property rights, by relying on such notions as the patient's informed consent or its absence, or breach of fiduciary duties owed by the medical staff to the patient.
46. Cf. the comment by the California Court of Appeal, cited n. 42 above, at p. 507: “Defendants' position that plaintiff cannot own his tissue, but that they can, is fraught with irony.”
47. This approach would require consideration of the potentially far-reaching ramifications of recognising property interests in parts of the human body.
48. § 950(1) BGB.
49. § 951(1), 818(2) BGB; see e.g. Staudingers Kommentar zum BGB (12th ed., Berlin 1989) 950 no. 11Google Scholar (Wieland).
50. For some recent salutary scepticism about the guidance which economic analysis can offer to lawyers, see Simpson, A.W.B. “Coase v. Pigou re-examined” (1996) 25 Journal of Legal Studies 53–101.Google Scholar
51. See Stein, P.G. “The fate of the institutional system” Huldigungsbundel van Warmelo (Pretoria 1984);Google Scholar id., “The quest for a systematic civil law” (1995 British Academy Maccabaean lecture in jurisprudence), (1995) 90 Proceedings of the British Academy 147–164; Birks, cited n. 40 above.
52. 52 O.J.C158/400.
53. See, e.g., Caenegem, R. vanAn historical introduction to private law (Cambridge 1992), p . 2CrossRefGoogle Scholar
54. As Lord Mansfield suggested, in advice to the Duke of Portland: Fifoot, C.H.S.Lord Mansfield (London 1936), p. 29.Google Scholar
55. Chashidingyi, Faxue zonglun (Peking 1989); see in general Mi Jian, “Diritto cinese e diritto romano” (1991) 19 Index 343–357.Google Scholar
