Contributory Negligence: A Historical and Comparative Study

Comparative Law › Legal History

Contributory Negligence: A Historical and Comparative Study

By Emanuel van Dongen
Brill Nijhoff January 2015

Specifications

ISBN-13
9789004278714
Publisher
Brill Nijhoff
Publication
January 2015
Format
Hardback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

Accidents often occur not only through the fault of the wrongdoer but also partly through the conduct of the injured party. This contributory conduct of the injured party and its consequences for the delictual liability of the wrongdoer have been central issues in the study of private law for centuries.

In Contributory Negligence. A Historical and Comparative Study Van Dongen presents a detailed study of how from Antiquity to today the negligent behaviour of the injured party has influenced claims for damages based on delictual liability and how it evolved into the modern concept of contributory negligence.

His research comprises a comparative legal study of the main current developments concerning the concept of contributory negligence in France, Germany and the Netherlands.

Table of Contents

Preface ... XIII
Abbreviations ... XV

Chapter One Introduction ...
1
1.1 The subject of this study ...
1
1.2 Methodology ...
5
1.3 Structure ...
10

Chapter Two Roman Law in Antiquity ...
13
2.1 Introduction ...
13
2.2 The origin of the regula of D.
50.17.203 ...
16
2.3 Alfenus’ reply in the case of the innkeeper ...
30
2.4 Ulpian’s reply in the case of the javelin throwers ...
54
2.5 Ulpian’s reply in the barber case ...
78
2.6 General treatment of all relevant cases in Justinian law ...
98
2.7 Concluding remarks ...
102

Chapter Three Medieval Ius Commune ...
105
3.1 Introduction ...
105
3.2 Medieval Roman legal scholarship ...
109
3.3 Canon law ...
146
3.4 Short comparative remarks ...
177
3.5 Concluding remarks ...
183

Chapter Four Early Modern Period ...
189
4.1 Introduction ...
189
4.2 Legal humanism ...
192
4.3 A general introduction to the period of the Reception of Roman law ...
222
4.4 Roman-Dutch law ...
227
4.5 Usus modernus pandectarum ...
255
4.6 The northern natural law school ...
285
4.7 Concluding remarks ...
298

Chapter Five Modern and Contemporary Law ...
303
5.1 Introduction: content, method and structure ...
303
5.2 Codifications around 1800 ...
308
5.3 Conservatism in nineteenth-century legal doctrine and the struggle of nineteenth-century judges ...
312
5.4 Codifications around 1900 ...
331
5.5 Modern contemporary solutions to the problem of contributory negligence ...
339
5.6 Traffic accidents: rise and fall of the all-or-nothing approach? ...
353
5.7 Contributory negligence after the damaging event ...
358
5.8 Harmonisation: rules for the future? ...
362
5.9 Concluding remarks ...
367

Chapter Six Summary and Concluding Remarks ...
373
6.1 Introduction ...
373
6.2 Roman law in Antiquity ...
374
6.3. Medieval ius commune ...
376
6.4 The humanistic contribution ...
379
6.5 Reception, Roman-Dutch law and usus modernus ...
379
6.6 The northern natural law school ...
381
6.7 The concept of contributory negligence in the nineteenth century ...
382
6.8 The concept of contributory negligence in modern and contemporary law ...
384
6.9 To conclude ...
386

Bibliography ...
389

Index of Names ...
453
Index of Sources ...
459
Index of Cases ...
473
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