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E-raamat: Common Law [Taylor & Francis e-raamat]

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  • Formaat: 365 pages
  • Ilmumisaeg: 30-Nov-2004
  • Kirjastus: Transaction Publishers
  • ISBN-13: 9780429338908
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Common LawSuurem pilt
  • Formaat: 365 pages
  • Ilmumisaeg: 30-Nov-2004
  • Kirjastus: Transaction Publishers
  • ISBN-13: 9780429338908
Teised raamatud teemal:
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Raamatu kodulehekülg: https://www.taylorfrancis.com/books/9780429338908
The Common Law is Oliver Wendell Holmes' most sustained work of jurisprudence. In it the careful reader will discern traces of his later thought as found in both his legal opinions and other writings.

At the outset of The Common Law Holmes posits that he is concerned with establishing that the common law can meet the changing needs of society while preserving continuity with the past. A common law judge must be creative, both in determining the society's current needs, and in discerning how best to address these needs in a way that is continuous with past judicial decisions. In this way, the law evolves by moving out of its past, adapting to the needs of the present, and establishing a direction for the future. To Holmes' way of thinking, this approach is superior to imposing order in accordance with a philosophical position or theory because the law would thereby lose the flexibility it requires in responding to the needs and demands of disputing parties as well as society as a whole.

According to Holmes, the social environment--the economic, moral, and political milieu--alters over time. Therefore, in order to remain responsive to this social environment, the law must change as well. But the law is also part of this environment and impacts it. There is, then, a continual reciprocity between the law and the social arrangements in which it is contextualized. And, as with the evolution of species, there is no starting over. Rather, in most cases, a judge takes existing legal concepts and principles, as these have been memorialized in legal precedent, and adapts them, often unconsciously, to fit the requirements of a particular case and present social conditions.

Oliver Wendell Holmes, Jr. (1841-1935) served as chief justice of the Massachusetts Supreme Court and as an associate justice of the U.S. Supreme Court. He was nicknamed the "Great Dissenter" because of his many dissenting opinions. Holmes is also the author of Kent's Commentaries on the Law (1873) and "The Path of the Law" (1897).

Tim Griffin has advanced degrees in philosophy and law, and has taught philosophy and legal theory courses at a number of universities. He is currently a seminarian pursuing ordination to the priesthood in the Episcopal Church.
Introduction to the Transaction Edition xi
Preface 3(2)
LECTURE I EARLY FORMS OF LIABILITY
Object of the Book,
5(1)
Origin of Legal Procedure in the Composition for Vengeance,
6(2)
Subject of this Lecture, Indirect Liability for Servants, Animals, &c.,
8(26)
A. Mosaic Law,
10(1)
B. Greek Law,
10(1)
C. Roman Law:
(a.) Nox a deditio,
10(6)
(b.) Personal Liability,
16(1)
D. Early German Law,
17(1)
E. Anglo-Saxon Law,
18(1)
F. The Common Law:
(a.) Master and Servant,
19(1)
(b.) Animals,
20(3)
(c.) Inanimate Things,
Deodand,
23(1)
the Ship and the Admiralty Law,
24(6)
G. Conclusion,
30(4)
LECTURE II THE CRIMINAL LAW
A. Vengeance:
(a.) As Source of the Criminal Law,
34(1)
(b.) As one Object still,
35(1)
B. Theories of Punishment:
(a.) Reformation,
35(2)
(b.) Retribution,
37(1)
(c.) Prevention,
37(4)
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,
41(2)
D. Murder,
43(7)
Malice = Knowledge of Facts making the Conduct dangerous,
44(4)
Exceptional Cases where Man must know at his Peril,
48(2)
Murder and Manslaughter,
50(1)
E. Man-slaughter,
50(2)
Provocation,
51(1)
F. Malicious Mischief, why actual Malice,
52(1)
G. Arson,
53(1)
H. Attempts,
54(4)
Intent as making a harmful Result probable from Act otherwise innocent,
55(1)
Limit to this,
56(2)
I. Larceny is Attempt to deprive Man of his Property permanently,
58(3)
K. Burglary,
61(1)
Conclusion,
61(2)
LECTURE III TORTS.-TRESPASS AND NEGLIGENCE
A. Introduction,
63(4)
The Question,
65(1)
Two Theories:
(a.) Liability confined to moral Shortcoming,
65(1)
(b.) A Man acts at his Peril,
65(25)
Neither sound
B. Latter Theory considered:
(a.) Argument for,
67(5)
α. Analogy,
68(1)
β. Theory,
68(1)
γ. Pleading,
68(1)
δ. Precedent,
69(3)
(b.) Argument against,
72(13)
α. Analogy,
73(3)
β. Principle and Policy,
76(2)
γ. Trespasses upon Land, &c.,
78(3)
δ. Pleading,
81(1)
epsilon. Precedent,
82(3)
C. Negligence not judged by personal or moral Standard,
85(1)
D. Liability for unintended Harm is determined by what would be Blameworthy in average Man,
86(18)
i. e. by Standard external to the Individual, which tends to become more specific, and to take form of concrete Rules of Conduct,
88(2)
(a.) Process of Specification illustrated,
90(5)
α. Statute,
90(1)
β. Decisions,
90(2)
γ. Policy apart from Negligence, Rylands v. Fletcher,
92(1)
δ. Cattle,
93(2)
(b.) Bailment,
95(1)
(c.) "Evidence of Negligence,"
96(2)
(d.) Function of Jury,
98(6)
LECTURE IV FRAUD, MALICE, AND INTENT.-THE THEORY OF TORTS
Preliminaries,
104(26)
A. Moral Element in Wrongs called Intentional:
(a.) Deceit,
106(4)
(b.) Slander,
110(2)
(c.) Malicious Prosecution,
112(1)
(d.) Conspiracy,
113(1)
(e.) Trover,
114(1)
B. Moral Standards adopted only so far as to give Opportunity to avoid inflicting Harm,
115(6)
(a.) Some Harms may be done,
115(1)
Risk of others must be taken,
115(1)
but most Cases between these Extremes,
116(1)
(b.) Common Ground of Liability in Tort: Knowledge of Circumstances making Conduct dangerous,
116(1)
(c.) What these Circumstances are, determined by Experience,
117(2)
(d.) Function of the Jury,
119(2)
C. Examples in which the Circumstances which must be known have been worked out:
Trespass to Property,
121(1)
Fierce Animals,
122(2)
Cattle, &c.,
124(2)
Slander, &c.,
126(1)
D. Proximity of Choice to Harm complained of,
127(1)
E. Summary of Law of Torts,
128(2)
LECTURE V THE BAILEE AT COMMON LAW
Law of Bailment is Test of Theory of Possession,
130(33)
A. Early German Law,
130(3)
B. English Law after the Conquest closely resembles it,
133(10)
(a.) Remedy for converted Chattels is possessory,
133(1)
(b.) Transfer by Bailee binds Owner,
134(1)
(c.) Inverted Explanation of Bailee's Right of Action,
134(2)
(d.) True Explanation that our Law regards him as Possessor,
136(2)
(e.) Bailee answerable to Bailor if Goods are stolen,
138(5)
C. Common Carriers. Survival of ancient Law,
143(28)
(a.) Under Elizabeth, Carriers like other Bailees,
143(1)
(b.) Change from Detinue to Case introduces Allegation of Assumpsit or Common Calling, even where Ground of Liability is Bailment,
144(4)
(c.) The Custom of the Realm,
148(1)
(d.) The Cases examined from Southcote's Case (A. D. 1601) to Coggs v. Bernard (A.D. 1703)
149(5)
(Effect of Assumpsit and Common Calling,
154(1)
(e.) Bailee's Liability diminished one Way,
154(5)
increased another,
157(2)
(f.) Public Enemy and the Act of God,
159(1)
(g.) Meaning of Lord Holt's View as to Public Calling,
160(1)
(h.) Later Changes,
161(1)
(i.) Conclusion,
162(1)
LECTURE VI POSSESSION
A. Why protected,
163(6)
B. Fact or Right?
169(2)
C. Analysis of, 170-185:
(a.) Power over Object,
171(1)
(b.) Intent,
172(13)
α. Criteria of Roman Law rejected,
172(1)
β. Intent to exclude,
173(5)
γ. Servants. Digression as to Agents,
178(7)
(c.) Power as to Third Persons,
185(1)
D. Continuance of possessory Rights,
185(2)
E. Possession of Rights,
187(3)
F. Consequences of Possession (i. e. Nature of possessory Rights),
190(2)
G. Ownership,
192(3)
LECTURE VII CONTRACT.-I. HISTORY
A. Early Forms of Contract,
195(4)
(a.) Promissory Oath,
195(1)
(b.) Suretyship and Bail,
195(3)
(c.) Debt, 198; (d.) Origin of Action,
198(1)
B. Consideration,
199(14)
(a.) Origin in Debt,
200(1)
(b.) Started from Procedure, and the Nature of the Cases for which the Secta or Witness Proof was provided,
201(6)
(c.) Magna Charta required Secta for Parol Debts, and thus forbade Suits for such Debts except within the traditional Limits of the Secta,
207(1)
(d.) Quid pro quo, Doctrine invented to fix existing Limits of Parol Debts, but applied to other Parol Contracts and in Equity,
208(5)
C. Covenants,
213(2)
D. Assumpsit,
215(12)
(a.) Transit from Tort to Contract on Ground of Defendant's having intermeddled,
215(8)
(b.) New Doctrine of Consideration,
223(3)
(c.) Later Influence of Assumpsit on the substantive Law,
226(1)
LECTURE VIII CONTRACT.-II. ELEMENTS
A. Consideration,
227(6)
(a.) What sufficient,
227(3)
(b.) Consideration and Promise must be reciprocal conventional Inducement each for other,
230(2)
(c.) Executed Consideration, Request,
232(1)
B. Promise,
233(5)
(a.) Assurance that certain State of Things shall come to pass,
233(2)
(b.) Hence Contract is taking Risk of uncertain State of Things, and the Rule of Damages depends on the Risk taken,
235(3)
(c.) Acceptance,
238(1)
C. Bilateral Contract,
238(3)
(a.) Promises as Consideration; Wager on past Events,
238(1)
(b.) Contract by Letter,
239(2)
LECTURE IX CONTRACT.-III. VOID AND VOIDABLE
Void Contracts,
241(5)
A. When Contract void, some primary Element wanting:
(a.) Party,
241(1)
(b.) Parties say different Things,
241(1)
(c.) Language contradictory in Essentials,
242(3)
B. In general, Contract not void on Grounds outside the Contract itself; if Elements of Contract present, Contract is made,
245(1)
Voidable Contracts,
246(22)
A. Ground of Avoidance is a Condition:
(a.) If Condition attached to Contract's coming into being, no Contract,
246(1)
(b.) Conditions precedent and subsequent,
247(1)
(c.) Distinction between Conditions and Limitations upon the Scope of a Promise,
248(4)
B. Representations outside Contracts,
252(3)
(a.) No implied Condition that they are True, but only that no Fraud,
252(1)
(b.) Fraud, what?
253(1)
(c.) Goes only to Motives; Materiality,
254(1)
C. Conditions as to making good the Representations or Undertakings contained in the Contract,
255(13)
(a.) Regarding present Facts; Warranties; Void and Voidable,
255(5)
(b.) Promises,
260(8)
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,
268(1)
(a.) The Roman Heir,
268(1)
(b.) The Executor a universal Successor, "represents Person of Testator,"
268(1)
B. The Heir,
269(6)
(a.) At first universal, then singular Successor, "represents Person of Ancestor,"
269(3)
(b.) This Persona is the Estate,
272
II. Successions Inter Vivos.
A. Standing in Seller's Shoes not a necessary Incident of Conveyance,
275(1)
B. Early German and Anglo-Saxon Law; Alienability extended by Analogy of Inheritance,
276(4)
C. Roman Law; Consequences of Identification of Heir with Ancestor ex-tended to Buyer and Seller, to acquire prescriptive Right,
280(5)
D. English Law. Prescription,
285(4)
E. Devise, 287-288.
LECTURE XI SUCCESSIONS.-II. INTER VIVOS
A. Warranty,
289(7)
(a.) Direct Benefit of, extended to Assign by Fiction that Assign was quasi Heres,
290(4)
(b.) Analogy of, extended to modem Covenants for Title,
294(2)
B. Easement,
296(6)
(a.) Roman Law,
297(2)
(b.) English Law,
299(1)
(c.) The Type of Rights which pass, irrespective of Succession, upon a conflicting Principle,
300(2)
C. Rents,
302(2)
(a.) When Parcel of a Manor, like Easement,
302(1)
(b.) But contractual Remedies for, only passed by Succession,
303(1)
D. Prescriptive Rights analogous to Contract, which followed Law of Easement,
304(2)
E. Land bound to Warranty,
306(1)
F. Necessary Meeting and Conflict between Principle of B, C, D, and E, and that of A (Succession), illustrated by the Cases,
307(4)
G. Modem 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,
311(3)
(b.) Results,
314(2)
H. Other Cases of Successions: Uses, and Trusts,
316(3)
Glossary of Legal Terms 319(2)
Table of Cases 321(4)
Year Books and Early Cases 325(4)
Index 329


Oliver Wendell Holmes, Jr. (1841-1935) served as chief justice of the Massachusetts Supreme Court and as an associate justice of the U.S. Supreme Court. He was nicknamed the Great Dissenter because of his many dissenting opinions. Holmes is also the author of Kent's Commentaries on the Law (1873) and The Path of the Law (1897).
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