Casum sentit dominus

Last updated

Casum sentit dominus or res perit domino [1] [2] is a Latin legal phrase that loosely translates to "accident is felt by the owner". [3] It means that it is the owner who has to assume the risk of accidental harm to him or accidental loss to his property. Taken more generally it connotes the foundational private law principle that it is the owner who has to bear the damage to his person or property and that only he can seek redress from a third party, and then only when there are specific grounds in law for his compensation. [4]

Contents

The brocard has been described as the basic principle of tort law and is attributed to the Roman jurist Ulpian. [5] [6]

Description and analysis

The legal phrase or legal maxim casum sentit dominus is a tenet of Roman private law and a feature of most European civil law systems. [7] It means that the owner has to carry the risk of any loss or harm that occurs accidentally to him or his property (casus). [7] The owner can seek redress only if a third party can legally be held liable for this damage. [7] The primary avenue for redress in such cases is tort law. [8]

From a societal point of view, the principle brings to mind that damage to person or property is locked in at the time the damage has occurred, and that this damage cannot be undone later (as, even if the damage is repaired, this does not undo the fact that the damage occurred). If the owner is compensated by a third party and the status quo ante is restored, this is only to be achieved by taking away an equivalent amount from this third party and transferring it to the owner of the damaged good. [8] This transfer can further increase the loss to society as transaction costs can occur. [8]

In his analysis of the maxim, the scholar Andreas Wacke  [ de ] has argued that the principle can be dissected into two parts: Firstly, it emphasises that an owner has to bear the damage to his property. Secondly, it highlights that whether the loss of the owner is final or whether he can take recourse against a third party requires a legal claim being available to him to compensate his loss. [9]

Criticism

Casum sentit dominus has from time to time been criticised as being a rule without tangible content. This criticism rests on the point that the legal maxim leaves unexplained how to differentiate between an accidental loss and a loss that can potentially create liability. In the 19th century, the leading German pandectist scholar Bernhard Windscheid, for example, argued that as a rule casum sentit dominus is "unsustainable, useless and in such general form incorrect". [10] [3] A century later, C. J. Claassen wrote in his Dictionary of Legal Words and Phrases (Volume IV, Durban, 1977) that "[t]here is no general rule of law that res perit domino. It is merely self evident platitude". [3]

Andreas Wacke has, however, defended the principle and reasoned that while it and other legal brocards do "not state any rule of immediate practicability", they "inspire legal teaching" and "force commentators of codes to define the extent of application of such principles". [3] Following Henri Roland and Laurent Boyer, he considers these brocards to be "guardians of eternity [...] more lasting than codifications". [11]

History

The principle casum sentit dominus can be traced back to the Roman jurist Ulpian. In the Digests usually D. 50,17,23 (Animalium vero casus mortesque, quae sine culpa accidunt, fugae servorum qui custodiri non solent, rapinae, tumultus, incendia, aquarum magnitudines, impetus praedonum a nullo praestantur.) [lower-greek 1] is cited as the source for the principle. [6] In the Codex Justinianus , C. 4,24,9 is commonly quoted. [2]

Immanuel Kant discussed the principle in his 1784 Vorlesung über Naturrecht Feyerabend. [13]

Codifications and common law

Civil law

The principle of casum sentit dominus is codified in Section 1311 Sentence 1 of the Austrian Allgemeines bürgerliches Gesetzbuch :

Der bloße Zufall trifft denjenigen, in dessen Vermögen oder Person er sich ereignet.

Mere accident lies with the person whose asset or personal integrity is affected.

— Section 1311 Austrian Allgemeines bürgerliches Gesetzbuch [3]

The Austrian Oberster Gerichtshof last used the phrase casum sentit dominus in a judgement in 2010. [14] A variation of it is also found in Article 1105 of the Spanish Código Civil :

Fuera de los casos expresamente mencionados en la ley, y de los en que así lo declare la obligación, nadie responderá de aquellos sucesos que no hubieran podido preverse, o que, previstos, fueran inevitables.

Unless explicitly stated otherwise by law or by contract, nobody is liable for occurrences which were not foreseeable, or were foreseeable yet inevitable.

— Article 1105 Código Civil [3]

In the Dutch Burgerlijk Wetboek , similar notions are codified in Article 8:543 Dutch Civil Code and Article 8:1004(2) Dutch Civil Code. [2] The German Bürgerliches Gesetzbuch does, however, not contain a provision that explicitly codifies it. [3]

Common law

The Anglo-American common law contains a similar idea, albeit not expressed in this Latin phrase. [8] Oliver Wendell Holmes Jr. writes in his 1881 The Common Law :

For civil liability, in its immediate working, is simply a redistribution of a existing loss between two individuals; and it will be argued [...] that sound policy lets losses lie where they fall, except where a special reason can be shown for interference.

— Oliver Wendell Holmes Jr., The Common Law [15]

The principle has also been accepted in mixed legal systems like South Africa, which are based on Roman-Dutch law. [16] South African Appellate Division judge Toon van den Heever in a 1949 case compared the principle to lightning:

"Like lightning, [...] the incidence of loss is where it strikes unless the direct sufferer can avail himself of some legal rule which serves to conduct the loss on the head of someone else."

— Toon van den Heever, Pahad v Director of Food Supplies, 1949 3 SA 695 (A) 709-710 [16]

See also

Notes and references

Notes

  1. ↑ In the translation of Alan Watson this reads as: "Accidents to and deaths of animals which occur without culpability, flights of slaves who are not habitually under guard, armed robberies, riots, fires, floods, attacks of pirates are no one’s fault." [12]

Citations

  1. ↑ Zimmermann 1996, p. 154.
  2. 1 2 3 Jansen 2016, p. 234, Footnote 2.
  3. 1 2 3 4 5 6 7 Wacke 1987, p. 318.
  4. ↑ Jansen 2016, p. 234.
  5. ↑ Byrd 1993, p. 63.
  6. 1 2 Zimmermann 1996, p. 154, Footnote 12.
  7. 1 2 3 Jansen 2016, p. 233.
  8. 1 2 3 4 Wacke 1987, p. 319.
  9. ↑ Wacke 1987, pp. 318–319.
  10. ↑ Windscheid 1882, p. 57, Footnote 5.
  11. ↑ Wacke 1987, p. 330.
  12. ↑ Kordasiewicz 2022, p. 25.
  13. ↑ Byrd 1993, pp. 63–64Footnote 50
  14. ↑ 4 Ob 146/10i (Court case) (in German). 9 November 2010 – via Oberster Gerichtshof.
  15. ↑ Holmes Jr. 1881, p. 50.
  16. 1 2 Joubert 1987, p. 332.

Bibliography

Related Research Articles

Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before a court.

Pacta sunt servanda is a brocard and a fundamental principle of law which holds that treaties or contracts are binding upon the parties that entered into the treaty or contract. It is customary international law. According to Hans Wehberg, a professor of international law, "few rules for the ordering of Society have such a deep moral and religious influence" as this principle.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

A brocard is a legal maxim in Latin that is, in a strict sense, derived from traditional legal authorities, even from ancient Rome.

The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights and duties are referred to as obligations, and this area of law deals with their creation, effects and extinction.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

<span class="mw-page-title-main">Civil code</span> Codification of the civil law

A civil code is a codification of private law relating to property, family, and obligations.

The Bürgerliches Gesetzbuch, abbreviated BGB, is the civil code of Germany, codifying most generally-applicably private law. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project.

<span class="mw-page-title-main">Civil law (legal system)</span> Legal system originating in Western Europe

Civil law is a legal system originating in Italy and France that has been adopted in large parts of the world. Modern civil law stems mainly from the Napoleonic Code of the early 19th century, and it is a continuation of ancient Roman law. Its core principles are codified into a referable system, which serves as the primary source of law.

<span class="mw-page-title-main">Delict (Scots law)</span> Actionable civil wrongs in Scots law

Delict in Scots law is the area of law concerned with those civil wrongs which are actionable before the Scottish courts. The Scots use of the term 'delict' is consistent with the jurisdiction's connection with Civilian jurisprudence; Scots private law has a 'mixed' character, blending together elements borrowed from Civil law and Common law, as well as indigenous Scottish developments. The term tort law, or 'law of torts', is used in Anglo-American jurisdictions to describe the area of law in those systems. Unlike in a system of torts, the Scots law of delict operates on broad principles of liability for wrongdoing: 'there is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances'. While some terms such as assault and defamation are used in systems of tort law, their technical meanings differ in Scottish delict.

<span class="mw-page-title-main">Code of law</span> Legislation that purports to cover a complete system of laws

A code of law, also called a law code or legal code, is a systematic collection of statutes. It is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in different common law and civil law systems, their usage is different.

The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state, and the private law, (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Justinian Code the Corpus Juris Civilis, and a to a lesser extent the Napoleonic Code.

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

The Netherlands uses civil law. The role of case law is small in theory, although in practice it is impossible to understand the law in many fields without also taking into account the relevant case law. The Dutch system of law is based on the French Civil Code with some influence from Roman-Dutch law and pre-codal customary law. The new Civil Code was heavily influenced by the German Bürgerliches Gesetzbuch.

Nemo judex in causa sua is a Latin brocard that translates as "no one is judge in their own case". Originating from Roman law, it was crystallized into a phrase by Edward Coke in the 17th century and is now widely regarded as a fundamental tenet of natural justice and constitutionalism. It states that no one can judge a case in which they have an interest. In some jurisdictions, the principle is strictly enforced to avoid any appearance of bias, even when there is none: as Lord Chief Justice Hewart laid down in Rex v. Sussex Justices, "Justice must not only be done, but must also be seen to be done".

Economic loss is a term of art which refers to financial loss and damage suffered by a person which is seen only on a balance sheet and not as physical injury to person or property. There is a fundamental distinction between pure economic loss and consequential economic loss, as pure economic loss occurs independent of any physical damage to the person or property of the victim. It has also been suggested that this tort should be called "commercial loss" as injuries to person or property can be regarded as "economic".

<span class="mw-page-title-main">Chilean Civil Code</span> Civil code of Chile since 1857

The Civil Code of the Republic of Chile is the work of jurist and legislator Andrés Bello. After several years of individual work, Bello delivered a complete project of the Code on November 22, 1855, which was sent to Congress by President Manuel Montt, preceded by a foreword by Bello himself. Congress passed the Civil Code into law on December 14, 1855. It then came into force on January 1, 1857. Although it has been the object of numerous alterations, the Code has been kept in force since then.

An "eG" or eingetragene Genossenschaft is a "registered cooperative society" under German Law. Unregistered cooperatives are also possible in Germany but practically never used in practice. In 2004 there were 5470 registered cooperative societies.

<span class="mw-page-title-main">Law of the Czech Republic</span>

Czech law, often referred to as the legal order of the Czech Republic, is the system of legal rules in force in the Czech Republic, and in the international community it is a member of. Czech legal system belongs to the Germanic branch of continental legal culture. Major areas of public and private law are divided into branches, among them civil, criminal, administrative, procedural and labour law, and systematically codified.

<span class="mw-page-title-main">Theodor Kipp</span> German jurist

Louis Theodor Kipp was a German jurist who is perhaps best known for his theory of "double nullity", under which a null contract can be challenged in some circumstances. He also made important contributions to family law and inheritance law.

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.