The Common Law
, by Holmes, Oliver Wendell
- ISBN: 9780486267463 | 0486267466
- Cover: Paperback
- Copyright: 7/22/1991
Only paperback edition of great legal classic by noted Supreme Court Justice. Lucid, accessible coverage, from a historical perspective, of liability, criminal law, torts, bail, possession and ownership, contracts, successions, many other aspects of civil and criminal law. Indispensable reading for lawyers, political scientists, interested general readers. New introduction by Sheldon M. Novick. Table of Cases.
LECTURE I.
EARLY FORMS OF LIABILITY.
Object of the book
Origin of Legal Procedure in the Composition for Vengeance
"Subject of this Lecture, Indirect Liability for Servants, Animals &c."
A. Mosaic Law
B. Greek Law
C. Roman Law
(a.) Noxa deditio
(b.) Personal Liability
D. Early German Law
E. AngloSaxon Law
F. The Common Law:
(a.) Master and Servant
(b.) Animals
(c.) Inanimate things
Deodand
the Ship and the Admiralty Law
G. Conclusion
LECTURE II.
THE CRIMINAL LAW.
A. Vengeance :
(a.) As Source of the Criminal Law
(b.) As one Object still
B. Theories of Punishment :
(a.) Reformation
(b.) Retribution
(c.) Prevention
C. "Preventive Theory shows Penal Liability not measured by actual Blameworthiness alone, but by Nonconformity to external Standard based on what would be wrong in average Man"
D. Murder
Malice = Knowledge of Facts making the Conduct dangerous
Exceptional Cases where Man must know at his Peril
Murder and Manslaughter
E. Manslaughter
Provication
F. "Malicious Mischief, why actual Malice"
G. Arson
H. Attempts
Intent as making a harmful Result probable from Act otherwise innocent
Limit to this
I. Larceny is Attempt to deprive Man of his Property permanently
K. Burglary
Conclusion
LECTURE III
TORTS.-TRESPASS AND NEGLIGENCE.
A. Introduction
The Question
Two Theories
(a.) Liability confined to moral Shortcoming
(b.) A Man acts at his Peril
Neither sound
B. Latter Theory considered :
(a.) Argument for
a. Analogy
ß. Theory
?. Pleading
d. Precedent
(b.) Argument against
a. Analogy
ß. Principle and Policy
"?. Trespasses upon Land, &c."
d Pleading
e. Precedent
C. Negligence not Judged by personal or moral Standard
D. Liability for unintended Harm is determined by what would be Blameworthy in average Man
"i. e. by Standard external to the Individual, which tends to become more specific, and to take form of concrete Rules of Conduct"
(a.) Process of Specification illustrated
a. Statute
ß. Decisions
"?. Policy apart from Negligence, Rylands v. Fletcher"
d Cattle
(b.) Bailment
(c.) "Evidence of Negligence"
(d.) Function of Jury
LECTURE IV.
"FRAUD, MALICE, AND INTENT.-THE THEORY OF TORTS."
Preliminaries
A. Moral Element in Wrongs called Intentional :
(a.) Deceit
(b.) Slander
(c.) Malicious Prsecution
(d.) Conspiracy
(e.) Trover
B. Moral Standards adopted only so far as to give Opportunity to avoid inflicting Harm
(a.) Some Harms may be done
"Risk of others must be taken, but most Cases between these Extremes "
(b.) Common Ground of Liability in Tort : Knowledge of Circumstances making conduct dangerous
(c.) "What these Circumstances are, determined by Experience"
(d.) Function of the Jury
C. Examples in which the Circumstances which must be known have been worked out : Trespass to Property
Fierce animals
"Cattle, &c."
"Slander, &c."
D. Proximity of Choice to Harm complained of
E. Summary of Law of Torts
LECTURE V.
THE BAILEE AT COMMON LAW.
Law of Bailment is Test of theory of Possession
A. Early German Law
B. English Law after the Conquest closely resembles it
(a.) Remedy for converted Chattels is possessory
(b.) Transfer by Bailee binds Owner
(c.) Inverted Explanation of Bailee's right of Action
(d.) True Explanation that our Law regards him as Possessor
(e.) Bailee answerable to Bailor if Goods are stolen
C. Common Carriers. Survival of ancient Law
(a.) "Under Elizabeth, Carriers like other Bailees"
(b.) "Change from Detinue to Case introduces Allegation of Assumpsit or Common Calling, even where Ground of Liability is Bailment"
(c.) The Custom of the Realm
(d.) The Cases examined from Southcote's Case (A. D. 1601) to coggs v. Bernard (A. D. 1703)
(Effect of Assumpsit and common Calling)
(e.) Bailee's Liability diminished one Way
increased another
(f.) Public Enemy and the Act of God
(g.) Meaning of Lord Holt's View as to Public Calling
(h.) Later Changes
(i.) Conclusion
LECTURE VI.
POSSESSION AND OWNERSHIP.
A. Why protected
B. Fact or Right ?
C. Analysis of
(a.) Power over Object
(b.) Intent
a. Criteria of Roman Law rejected
ß. Intent to exclude
?. Servants. Digression as to Agents
(c.) Power as to Third Persons
D. Continuance of possessory Rights
E. Possession of Rights
F. Consequences of Possession (i. e. Nature of possessory Rights)
G. Ownership
LECTURE VII.
CONTRACT. -I. HISTORY.
A. Early Forms of Contract
(a.) Promissory Oath
(b.) Suretyship and Bail
(c.) Debt
(d.) Origin of Action
B. Consideration
(a.) Origin in Debt
(b.) "Started from Procedure, and the Nature of the Cases for which the Secta or Witness Proof was provided"
(c.) "Magna Charta required Secta for Parol Debts, and thus forbade suits for such Debts except within the traditional Limits of the secta"
(d.) "Quid pro quo, Doctrine invented to fit existing Limits of Parol Debt, but applied to other Parol Contracts and in Equity"
C. Covenants
D. Assumpsit
(a.) Transit from Tort on Contract on Ground of Defendant's having intermeddled
(b.) New Doctrine of Consideration
(c.) Later Influence of Assumpsit on the substantive Law
LECTURE VIII.
CONTRACT.
C. Conditions as to making good the Representations or Undertakings contained in the Contract
(a.) Regarding present Facts ; Warranties ; Void and Voidable
(b.) Promises
LECTURE X.
SUCCESSIONS. -I. AFTER DEATH. -II. INTER VIVOS.
The Problem, How are Rights or Obligations transferred, when the Facts from which they spring cannot be True of the Transferee (i.e. when the Situation of Fact is not a continuing one capable of Possession) ? It is by a fictitious Identification of the Transferee with his Transferror.
I. Successions after Death
A. The Executor
(a.) The Roman Heir
(b.) "The Executor a univeral Successor, "represents Person of Testator"
B. The Heir
(a.) "At first universal, then singular Successor, "represents Person of Ancestor"
(b.) This Persona is the Estate
II. Successions Inter Vivos.
A. Standing in Seller's Shoes not a necessary Incident on Conveyance
B. Early German and Anglo-Saxon Law; Alienability extended by Analogy of Inheritance
C. "Roman Law ; Consequences of Identification of Heir with Ancestor extended to Buyer and Seller, to acquire prescriptive Right"
D. English Law. Prescription
E. Devise
LECTURE XI.
Successions. -II. INTERVIVOS.
A. Warranty
(a.) "Direct Benefit of, extended to Assign by Fiction that Assign was quasi Heres"
(b.) "Analagy of, extended to modern Covenants for Title"
B. Easement
(a.) Roman Law
(b.) English Law
(c.) "The Type of Rights which pass, irrespective of Succession, upon a conflicting Principle"
C. Rents
(a.) "When Parcel of a Manor, like Easement"
(b.) "But contractual Remedies for, only passed by Succession"
D. "Prescriptive Rights analogous to Contract, which followed Law of Easement"
E. Land bound to Warranty
F. "Necessary Meeting and Conflict between Principle of B, C, D, and E and that of A (Succession), illustrated by the Cases"
G. Modern Law ;
(a.) "The Confusion as to "Covenants running with the Land" due to losing Sight of the Conflict, and to the Attempt to apply both Principles"
(b.) Results
H. "Other Cases of Successions : Uses, and Trusts"
EARLY FORMS OF LIABILITY.
Object of the book
Origin of Legal Procedure in the Composition for Vengeance
"Subject of this Lecture, Indirect Liability for Servants, Animals &c."
A. Mosaic Law
B. Greek Law
C. Roman Law
(a.) Noxa deditio
(b.) Personal Liability
D. Early German Law
E. AngloSaxon Law
F. The Common Law:
(a.) Master and Servant
(b.) Animals
(c.) Inanimate things
Deodand
the Ship and the Admiralty Law
G. Conclusion
LECTURE II.
THE CRIMINAL LAW.
A. Vengeance :
(a.) As Source of the Criminal Law
(b.) As one Object still
B. Theories of Punishment :
(a.) Reformation
(b.) Retribution
(c.) Prevention
C. "Preventive Theory shows Penal Liability not measured by actual Blameworthiness alone, but by Nonconformity to external Standard based on what would be wrong in average Man"
D. Murder
Malice = Knowledge of Facts making the Conduct dangerous
Exceptional Cases where Man must know at his Peril
Murder and Manslaughter
E. Manslaughter
Provication
F. "Malicious Mischief, why actual Malice"
G. Arson
H. Attempts
Intent as making a harmful Result probable from Act otherwise innocent
Limit to this
I. Larceny is Attempt to deprive Man of his Property permanently
K. Burglary
Conclusion
LECTURE III
TORTS.-TRESPASS AND NEGLIGENCE.
A. Introduction
The Question
Two Theories
(a.) Liability confined to moral Shortcoming
(b.) A Man acts at his Peril
Neither sound
B. Latter Theory considered :
(a.) Argument for
a. Analogy
ß. Theory
?. Pleading
d. Precedent
(b.) Argument against
a. Analogy
ß. Principle and Policy
"?. Trespasses upon Land, &c."
d Pleading
e. Precedent
C. Negligence not Judged by personal or moral Standard
D. Liability for unintended Harm is determined by what would be Blameworthy in average Man
"i. e. by Standard external to the Individual, which tends to become more specific, and to take form of concrete Rules of Conduct"
(a.) Process of Specification illustrated
a. Statute
ß. Decisions
"?. Policy apart from Negligence, Rylands v. Fletcher"
d Cattle
(b.) Bailment
(c.) "Evidence of Negligence"
(d.) Function of Jury
LECTURE IV.
"FRAUD, MALICE, AND INTENT.-THE THEORY OF TORTS."
Preliminaries
A. Moral Element in Wrongs called Intentional :
(a.) Deceit
(b.) Slander
(c.) Malicious Prsecution
(d.) Conspiracy
(e.) Trover
B. Moral Standards adopted only so far as to give Opportunity to avoid inflicting Harm
(a.) Some Harms may be done
"Risk of others must be taken, but most Cases between these Extremes "
(b.) Common Ground of Liability in Tort : Knowledge of Circumstances making conduct dangerous
(c.) "What these Circumstances are, determined by Experience"
(d.) Function of the Jury
C. Examples in which the Circumstances which must be known have been worked out : Trespass to Property
Fierce animals
"Cattle, &c."
"Slander, &c."
D. Proximity of Choice to Harm complained of
E. Summary of Law of Torts
LECTURE V.
THE BAILEE AT COMMON LAW.
Law of Bailment is Test of theory of Possession
A. Early German Law
B. English Law after the Conquest closely resembles it
(a.) Remedy for converted Chattels is possessory
(b.) Transfer by Bailee binds Owner
(c.) Inverted Explanation of Bailee's right of Action
(d.) True Explanation that our Law regards him as Possessor
(e.) Bailee answerable to Bailor if Goods are stolen
C. Common Carriers. Survival of ancient Law
(a.) "Under Elizabeth, Carriers like other Bailees"
(b.) "Change from Detinue to Case introduces Allegation of Assumpsit or Common Calling, even where Ground of Liability is Bailment"
(c.) The Custom of the Realm
(d.) The Cases examined from Southcote's Case (A. D. 1601) to coggs v. Bernard (A. D. 1703)
(Effect of Assumpsit and common Calling)
(e.) Bailee's Liability diminished one Way
increased another
(f.) Public Enemy and the Act of God
(g.) Meaning of Lord Holt's View as to Public Calling
(h.) Later Changes
(i.) Conclusion
LECTURE VI.
POSSESSION AND OWNERSHIP.
A. Why protected
B. Fact or Right ?
C. Analysis of
(a.) Power over Object
(b.) Intent
a. Criteria of Roman Law rejected
ß. Intent to exclude
?. Servants. Digression as to Agents
(c.) Power as to Third Persons
D. Continuance of possessory Rights
E. Possession of Rights
F. Consequences of Possession (i. e. Nature of possessory Rights)
G. Ownership
LECTURE VII.
CONTRACT. -I. HISTORY.
A. Early Forms of Contract
(a.) Promissory Oath
(b.) Suretyship and Bail
(c.) Debt
(d.) Origin of Action
B. Consideration
(a.) Origin in Debt
(b.) "Started from Procedure, and the Nature of the Cases for which the Secta or Witness Proof was provided"
(c.) "Magna Charta required Secta for Parol Debts, and thus forbade suits for such Debts except within the traditional Limits of the secta"
(d.) "Quid pro quo, Doctrine invented to fit existing Limits of Parol Debt, but applied to other Parol Contracts and in Equity"
C. Covenants
D. Assumpsit
(a.) Transit from Tort on Contract on Ground of Defendant's having intermeddled
(b.) New Doctrine of Consideration
(c.) Later Influence of Assumpsit on the substantive Law
LECTURE VIII.
CONTRACT.
C. Conditions as to making good the Representations or Undertakings contained in the Contract
(a.) Regarding present Facts ; Warranties ; Void and Voidable
(b.) Promises
LECTURE X.
SUCCESSIONS. -I. AFTER DEATH. -II. INTER VIVOS.
The Problem, How are Rights or Obligations transferred, when the Facts from which they spring cannot be True of the Transferee (i.e. when the Situation of Fact is not a continuing one capable of Possession) ? It is by a fictitious Identification of the Transferee with his Transferror.
I. Successions after Death
A. The Executor
(a.) The Roman Heir
(b.) "The Executor a univeral Successor, "represents Person of Testator"
B. The Heir
(a.) "At first universal, then singular Successor, "represents Person of Ancestor"
(b.) This Persona is the Estate
II. Successions Inter Vivos.
A. Standing in Seller's Shoes not a necessary Incident on Conveyance
B. Early German and Anglo-Saxon Law; Alienability extended by Analogy of Inheritance
C. "Roman Law ; Consequences of Identification of Heir with Ancestor extended to Buyer and Seller, to acquire prescriptive Right"
D. English Law. Prescription
E. Devise
LECTURE XI.
Successions. -II. INTERVIVOS.
A. Warranty
(a.) "Direct Benefit of, extended to Assign by Fiction that Assign was quasi Heres"
(b.) "Analagy of, extended to modern Covenants for Title"
B. Easement
(a.) Roman Law
(b.) English Law
(c.) "The Type of Rights which pass, irrespective of Succession, upon a conflicting Principle"
C. Rents
(a.) "When Parcel of a Manor, like Easement"
(b.) "But contractual Remedies for, only passed by Succession"
D. "Prescriptive Rights analogous to Contract, which followed Law of Easement"
E. Land bound to Warranty
F. "Necessary Meeting and Conflict between Principle of B, C, D, and E and that of A (Succession), illustrated by the Cases"
G. Modern Law ;
(a.) "The Confusion as to "Covenants running with the Land" due to losing Sight of the Conflict, and to the Attempt to apply both Principles"
(b.) Results
H. "Other Cases of Successions : Uses, and Trusts"
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