The modern common and civil law of torts have a common architecture because they ask and answer these questions in a similar way. This chapter deals with their architectural history. As the chapter will explore, this architecture came late to the common law. It was borrowed from civil law in the 19th century and imposed upon a pre-existing traditional system to which it was foreign. The chapter begins with the story of the common law, and then examines how the concepts of the fault of the defendant and harm for which the plaintiff could recover developed in the civil law tradition.
This chapter offers comparative insights into the structure and history of the modern law of unjust enrichment and restitution, paying particular attention to the contributions of an important group of civil jurists known as the ‘late scholastics’ writing in the sixteenth and seventeenth centuries. Modern approaches to the analysis of unjust enrichment law may be broadly divided into two main camps. Common law jurisdictions in general look for particular, positive reasons why a given enrichment obtained by the defendant is unjust (‘unjust factors’), such as the existence of mistake or duress. Civilian and mixed jurisdictions by contrast tend to inquire whether the defendant’s enrichment is justified by a relevant ground (‘causa’, such as a valid contract or gift), the absence of any ground for the enrichment providing courts’ main focus and justifying relief. This chapter suggests a third approach, which asks solely whether a defendant has been enriched ‘at another’s expense’ by using the other’s ‘resources’ (entitlements). This largely overlooked approach was pioneered by the late scholastics and connects unjust enrichment law to its philosophical roots in corrective or commutative justice.