Английская Википедия:Casum sentit dominus
Шаблон:Short description Шаблон:Italic title Шаблон:Use dmy dates
Шаблон:Lang or Шаблон:LangШаблон:SfnШаблон:Sfn is a Latin legal phrase that loosely translates to "accident is felt by the owner".Шаблон:Sfn It means that it is the owner who has to assume the risk of accidental harm to him or accidental loss to his property. Taken more generally it connotes the foundational private law principle that it is the owner who has to bear the damage to his person or property and that only he can seek redress from a third party, and then only when there are specific grounds in law for his compensation.Шаблон:Sfn
The brocard has been described as the basic principle of tort law and is attributed to the Roman jurist Ulpian.Шаблон:SfnШаблон:Sfn
Legal institution
Description and analysis
The legal phrase or legal maxim Шаблон:Lang is a tenet of Roman private law and a feature of most European civil law systems.Шаблон:Sfn It means that the owner has to carry the risk of any loss or harm that occurs accidentally to him or his property (Шаблон:Lang).Шаблон:Sfn The owner can seek redress only if a third party can legally be held liable for this damage.Шаблон:Sfn The primary avenue for redress in such cases is tort law.Шаблон:Sfn
From a societal point of view, the principle brings to mind that damage to person or property is locked in at the time the damage has occurred, and that this damage cannot be undone later (as, even if the damage is repaired, this does not undo the fact that the damage occurred). If the owner is compensated by a third party and the status quo ante is restored, this is only to be achieved by taking away an equivalent amount from this third party and transferring it to the owner of the damaged good.Шаблон:Sfn This transfer can further increase the loss to society as transaction costs can occur.Шаблон:Sfn
In his analysis of the maxim, the scholar Шаблон:Ill has argued that the principle can be dissected into two parts: Firstly, it emphasises that an owner has to bear the damage to his property. Secondly, it highlights that whether the loss of the owner is final or whether he can take recourse against a third party requires a legal claim being available to him to compensate his loss.Шаблон:Sfn
Criticism
Шаблон:Lang has from time to time been criticised as being a rule without tangible content. This criticism rests on the point that the legal maxim leaves unexplained how to differentiate between an accidental loss and a loss that can potentially create liability. In the 19th century, the leading German pandectist scholar Bernhard Windscheid, for example, argued that as a rule Шаблон:Lang is "unsustainable, useless and in such general form incorrect".Шаблон:SfnШаблон:Sfn A century later, C. J. Claassen wrote in his Dictionary of Legal Words and Phrases (Volume IV, Durban, 1977) that "[t]here is no general rule of law that Шаблон:Lang. It is merely self evident platitude".Шаблон:Sfn
Andreas Wacke has, however, defended the principle and reasoned that while it and other legal brocards do "not state any rule of immediate practicability", they "inspire legal teaching" and "force commentators of codes to define the extent of application of such principles".Шаблон:Sfn Following Henri Roland and Laurent Boyer, he considers these brocards to be "guardians of eternity [...] more lasting than codifications".Шаблон:Sfn
History
The principle Шаблон:Lang can be traced back to the Roman jurist Ulpian. In the Digests usually D. 50,17,23 (Шаблон:Lang)Шаблон:Efn is cited as the source for the principle.Шаблон:Sfn In the Codex Justinianus, C. 4,24,9 is commonly quoted.Шаблон:Sfn
Immanuel Kant discussed the principle in his 1784 Шаблон:Lang.Шаблон:Sfn
Codifications and common law
Civil law
The principle of Шаблон:Lang is codified in Section 1311 Sentence 1 of the Austrian Шаблон:Lang: Шаблон:Blockquote
The Austrian Шаблон:Lang last used the phrase Шаблон:Lang in a judgement in 2010.[1] A variation of it is also found in Article 1105 of the Spanish Шаблон:Lang: Шаблон:BlockquoteIn the Dutch Burgerlijk Wetboek, similar notions are codified in Article 8:543 Dutch Civil Code and Article 8:1004(2) Dutch Civil Code.Шаблон:Sfn The German Шаблон:Lang does, however, not contain a provision that explicitly codifies it.Шаблон:Sfn
Common law
The Anglo-American common law contains a similar idea, albeit not expressed in this Latin phrase.Шаблон:Sfn Oliver Wendell Holmes Jr. writes in his 1881 The Common Law:
Mixed legal systems
The principle has also been accepted in mixed legal systems like South Africa, which are based on Roman-Dutch law.Шаблон:Sfn South African Appellate Division judge Toon van den Heever in a 1949 case compared the principle to lightning: Шаблон:Blockquote
See also
Notes and references
Notes
Citations
Bibliography
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