Eric Descheemaeker

The Roman Law of Obligations

MODALITÀ DI VERIFICA DELL’APPRENDIMENTO/COURSE GRADE DETERMINATION The assessment of the preparation of the students will take place with an oral examination that will focus on the individual parts of the program whose knowledge must be complete and conscious. The preparation will be evaluated in more discursive terms, in order to evaluate also the degree of maturity, also linguistic, acquired by the student. During the course the attending students will be able, in agreement with the teacher and in the periods dedicated to it, to support partial checks on the parts of the program already dealt with in class, which will help to define the final evaluation.

Tort Law Defences: A Defence of Conventionalism

This article is a critical review of an important recent book by James Goudkamp: Tort Law Defences (Oxford: Hart Publishing, 2013). In this work, the author seeks to reconceptualise defences – and while the ambit of the project is confined to the law of tort, it has implication for large swathes of private law. Goudkamp’s book makes a number of important points. Some, like the need to distinguish sharply between defences properly so called and denials, ought not to be controversial. Others will be. The present article focuses on two interrelated claims made by Goudkamp, which are foundational to the book yet ought not in my mind to be accepted. First comes the idea that a defence is defined as ‘a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present’: in other words, for the author, the definition of a defence is substantive (a plea in confession and avoidance) not procedural (based on the empirical observation of who bears the onus of proving what). Second is the idea that defences are distinct from torts, rather than part of the definition of the causes of action, a view which can be described as ‘dualism’. Contra Goudkamp, the present article seeks to defend unitarianism and also – at least when it comes to what the author calls ‘justification defences’ – the view that defences do in fact prevent the tort from arising in the first place. Adopting a different perspective, the final section seeks to highlight the importance of Dr Goudkamp’s attempt to consider defences as a whole: the main reason – on which the author does not himself rely – is that, despite the above criticisms, it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.

The harms of privacy

This paper aims to identify and order the harms or losses which the law might compensate (or more widely redress) in actions for breach of privacy. Part I identifies three such detriments, to which all the others are reducible: pecuniary loss, mental distress and breach of privacy per se. Part II seeks to explain why they cannot all coexist at the same time. This is because they are based on two incompatible ways of understanding the relationship between wrong and harm, which ought not to be conflated: one that regards the loss as the detrimental consequences of the wrong (on respectively the claimants ‘pocket’ and his emotional tranquillity); the other that treats the harm as the wrong itself, i.e. the invasion to – or loss of – the claimants privacy. Part III examines some of the consequences the choice we make between them has on key issues within the law of privacy.

Mapping Defamation Defences

The general neglect of tort defences is most significant in defamation actions. This paper attempts to reduce to a few guiding principles the numerous, and apparently unrelated, doctrines recognised as defences by the law of defamation. Defining the cause of action as an injury to the claimants reputation, it argues that they fall into three classes: (i) defences which exclude unlawfulness because the injury was inflicted in pursuance of a right or liberty of the defendant; (ii) defences which exclude blameworthiness because the defendant was not at fault for causing the injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure and negligent: this group, not being underpinned by recognised principles, deserves particular scrutiny. The rule of repetition should be qualified by recognition of a defence of ‘warranted republication’; the remainder should be abolished, being an anachronistic hangover from the old requirement of malice.

Tort Law Defences

This article is a critical review of an important recent book by James Goudkamp: Tort Law Defences (Oxford: Hart Publishing, 2013). In this work, the author seeks to reconceptualise defences – and while the ambit of the project is confined to the law of tort, it has implication for large swathes of private law. Goudkamp’s book makes a number of important points. Some, like the need to distinguish sharply between defences properly so called and denials, ought not to be controversial. Others will be. The present article focuses on two interrelated claims made by Goudkamp, which are foundational to the book yet ought not in my mind to be accepted. First comes the idea that a defence is defined as ‘a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present’: in other words, for the author, the definition of a defence is substantive (a plea in confession and avoidance) not procedural (based on the empirical observation of who bears the onus of proving what). Second is the idea that defences are distinct from torts, rather than part of the definition of the causes of action, a view which can be described as ‘dualism’. Contra Goudkamp, the present article seeks to defend unitarianism and also – at least when it comes to what the author calls ‘justification defences’ – the view that defences do in fact prevent the tort from arising in the first place. Adopting a different perspective, the final section seeks to highlight the importance of Dr Goudkamp’s attempt to consider defences as a whole: the main reason – on which the author does not himself rely – is that, despite the above criticisms, it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.

Tort Law Defences: A Defence of Conventionalism: Tort Law Defences

This article is a critical review of an important recent book by James Goudkamp: Tort Law Defences (Oxford: Hart Publishing, 2013). In this work, the author seeks to reconceptualise defences – and while the ambit of the project is confined to the law of tort, it has implication for large swathes of private law. Goudkamp’s book makes a number of important points. Some, like the need to distinguish sharply between defences properly so called and denials, ought not to be controversial. Others will be. The present article focuses on two interrelated claims made by Goudkamp, which are foundational to the book yet ought not in my mind to be accepted. First comes the idea that a defence is defined as ‘a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present’: in other words, for the author, the definition of a defence is substantive (a plea in confession and avoidance) not procedural (based on the empirical observation of who bears the onus of proving what). Second is the idea that defences are distinct from torts, rather than part of the definition of the causes of action, a view which can be described as ‘dualism’. Contra Goudkamp, the present article seeks to defend unitarianism and also – at least when it comes to what the author calls ‘justification defences’ – the view that defences do in fact prevent the tort from arising in the first place. Adopting a different perspective, the final section seeks to highlight the importance of Dr Goudkamp’s attempt to consider defences as a whole: the main reason – on which the author does not himself rely – is that, despite the above criticisms, it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.

New Directions in Unjustified Enrichment: Learning from South Africa?

This short paper provides an introduction to a special section of the Edinburgh Law Review, vol. 18(3) [2014], dedicated to a symposium entitled “New Directions in Unjustified Enrichment: Learning from South Africa?” which took place in Old College, University of Edinburgh on 21 January 2014.

De la structure de la responsabilité: Réflexions comparatistes autour de Torts and Rights

Cette etude s’interesse a Torts and Rights de Robert Stevens, sans doute le plus important ouvrage de droit anglais de la responsabilite civile paru ces dix dernieres annees. La these de M. Stevens est que le droit des torts s’analyse dans son integralite comme la violation de droits primaires (rights). Cette these a des consequences considerables, notamment sur la maniere d’envisager le tort de negligence, dont la portee depasse la tradition de common law. L’auteur de cet article analyse la these de M. Stevens dans son contexte historique puis en propose une critique, basee notamment sur une comprehension a son sens defectueuse que l’ouvrage a de la notion de droits.

Obligations quasi ex delicto and Strict Liability in Roman Law

The meaning of the Gaian–Justinianic division of obligations arising from unlawful events into obligationes ex delicto and quasi ex delicto has long been a puzzle for Romanists. The strict liability theory, which understands ‘quasi-delicts’ as examples of situational wrongs, defined independently of fault, was first aired in the 1940s but has never gained widespread support. The case of the iudex qui litem suam facit was regarded as a stumbling block for the theory. The present article aims to make a new and systematic case for strict liability as the basis of the quasi-delictal category and argues that, in the light of archaeological discoveries which have forced us to reconsider our understanding of the judges liability, we can now have a coherent picture of Roman quasi-delictal liability as liability even without fault.