The Historical Development of the Fault Principle: A Reinterpretation Symposium: Modern Tort Theory 15 Georgia Law Review 1980-1981

15 Ga. L. Rev. 925 (1980-1981)
The Historical Development of the Fault Principle: A Reinterpretation

handle is hein.journals/geolr15 and id is 941 raw text is: THE HISTORICAL DEVELOPMENT
OF THE FAULT PRINCIPLE:
A REINTERPRETATION
Robert L. Rabin*
I. INTRODUCTION
Long ago a sturdy woodsman, swinging his axe with abandon,
felled a mighty oak in a distant corner of Tort Scholar Forest.
Without warning, the tree plummeted directly down upon a way-
ward traveler, causing him grievous injuries. Because our unfortu-
nate victim suffered direct harm from the overzealous activity of
the stalwart woodsman, he stood a good chance of recovering com-
pensation for the trespass upon his person. If, instead, the earth-
bound tree had landed in the traveler's path, leading his horse to
bolt in terror and cause him indirect injury, he would have
sought relief through a related form of action, trespass on the
case - assuming his injury came in the later, and more liberal,
phase of the pre-industrial era.1
Legal historians have labored over the sparse offerings of the
Yearbooks, attempting to establish definitively the strictness of
liability in those distant times - scrutinizing the cryptic opinions
for traces of a fault requirement in the early law of personal
harms.2 When all is said and done, however, the issue remains in
* Professor of Law, Stanford Law School. This research was supported by the Stanford
Legal Research Fund, made possible by a bequest from the Estate of Ira S. Lillick and by
gifts from Roderick E. and Carla A. Hills and other friends of the Stanford Law School. I
would like to thank Marc Franklin, Tom Grey, Mark Kelman, and Gary Schwartz for their
helpful comments on an earlier draft of this article. I also benefited from the research assis-
tance of Lisa Landsverk.
' For a discussion of the development of the writs of trespass and case, see C. FIFOOT,
HISTORY AND SOURCES OF THE COMMON LAW: TORT AND CONTRACT (1949); A. KiRALFY, THE
ACTION ON THE CASE (1951); Malone, Ruminations on the Role of Fault in the History of
the Common Law of Torts, 31 LA. L. REv. 1 (1970); Woodbine, The Origins of the Action of
Trespass (pts. 1-2), 33 YALE L.J. 799 (1924), 34 YALE L.J. 343 (1925).
2 See generally O.W. HOLMES, THE COMMON LAW 84-105 (1881); T. STREET, FOUNDATIONS
OF LEGAL LIABILITY: TORT (1906); Ames, Law and Morals, 22 HARV. L. REY. 97 (1908); Wig-
more, Responsibility for Tortious Acts: Its History (pts. 1-3), 7 HARv. L. REV. 315, 383, 441
(1894).

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