About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1987 J. S. Afr. L. 318 (1987)
Casum sentit dominus: Liability for Accidental Damages in Roman and Modern German Law of Property and Obligation

handle is hein.journals/jsouafl1987 and id is 336 raw text is: Casum sentit dominus: Liability for accidental damages in Roman and modern German law of property and obligation* ANDREAS WACKE** I Introduction 1 The maxim casum sentit dominus (accident is felt by the owner) or, in other words res perit domino (the thing is lost to its master; its loss concerns the owner) was and is often viewed critically. In Claassen's useful four-volume Dictionary of Legal Words and Phrases, published a decade ago, we read: There is no general rule of law that res perit domino. It is merely self evident platitude.' A century ago in Germany, the leading Pandectist authors Bernhard Windscheid and Heinrich Dernburg were equally critical and reserved, characterizing the rule as unsustainable, useless and in such general form incorrect.' Due to such objections the German BGB-legislator understandably abstained from explicitly adopting the dogma into the code. Published almost a century earlier, the Austrian Allgemeine Biirgerliche Gesetzbuch of 1811 has its roots in the period of Vernunftrecht, that is the law of reason or natural law. Its creators had fewer scruples in formulating general principles. Paragraph 1311 ABGB states: Mere accident lies with the person whose asset or personal integrity is affected. Article 1105 of the Spanish C6digo Civil provides a similar rule in more concrete wording. It may be translated as follows: Unless explicitly stated otherwise by law or by contract, nobody is liable for occurrences which were not foreseeable, or were foreseeable yet inevitable. General legal proclamations of such kind admittedly do not state any rule of immediate practicability. Nevertheless, they do not appear to be worthless. They rather inspire legal teaching and, in particular, they force commentators of codes to define the extent of application of such principles precisely. Since there is no equivalent rule in the German statutes, there is insufficient emphasis on the prerequisites necessary to put the burden of accidental damage on the owner. It has always been the extreme application of our Latin maxim that caused the objections of critics; for numerous cases are known in which casum non sentit dominus. These exceptions, however, do not justify rejecting the principle as such; instead, they are explicable for reasons given below. 2 Firstly, casum sentit dominus contains the pre-legal description of the axiomatic fact that at least in the first place it is the owner who suffers the * A shortened and revised English version of my German article Gefahrerh6hung als Besitzerverschulden, In Festschrift Heinz Hiibner (Berlin/New York 1984) 669-695, to which I refer for further particulars. The following text has been delivered as guest lecture in April 1986 at the Universities of Cape Town and Pretoria. * Professor in Law, University of Cologne. Claassen (1977) 6. Windscheid-Kipp II Pandekten (1906) § 264n5; similarly Dernburg-Sokolowski II Pandekten (1912) § 301n3. 318 TSAR 1987-3 [ISSN 0257-77471

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most