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in practice, but leaves it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.”
European lawyers practising the civil law have been as much embarrassed as the English or American courts by these divisions of negligence. A French writer rather humorously says:
“ The interpreters of the Roman law have raised upon this point a theory regarded as one of the most subtle and most embarrassing of all jurisprudence. The most expert agree in good faith that this doctrine presents inextricable difficulties.
“ They set up three degrees of negligence, - gross negligence (la faute lourde ou grossière), lata culpa ; ordinary negligence (la faute légère), levis culpa ; and slight negligence (la très-légère), levissima culpa. This division was based upon the difference which they observed in the habits and conduct of fathers of families. They have noticed that some are wholly devoted to pleasures rather than to business; and, instead of preserving their patrimony, consume it in vanities, or let it waste by carelessness, so as to have more to squander: men fruges consumere nati, who eat their capital after they have eaten their income.
“ The good father of a family, on the contrary, is he who is economical and frugal without avarice, honorable without prodigality, proper and decent but without superfluity in his expense and his housekeeping, — who, in a word, uses his estate without abusing it; always ready to repair it, or even make it better, for the purpose of transmitting it to those heirs whom nature and the law have given him. .“ Finally, there are others who are endowed with a vigilance and an activity which in their business is indefatigable. Such men have a hundred eyes, and never go to bed before they have made an examination, and assured themselves that every thing in the house is in order.
“ Gross negligence, lata culpa, consists, according to the interpreters, in not bringing to the affair of another the care which bad fathers of families, persons the least careful, and of the most limited capacity, do not fail to bring to their affairs. This fault was opposed to good faith, and likened to fraud (doli æquiparatur). “ Ordinary negligence consists in not bringing to the affair with which one is charged the care which a good father of a family brings to his affairs.
i Toullier, vol vi. p. 239.
“ Finally, slight negligence consists in not bringing to the business of another the care which the most vigilant man, the man with a hundred eyes, brings to his own affairs. It was opposed to exact diligence (exactissimo diligentiæ).
“ These principles laid down, the doctors established various rules concerning responsibility for negligence in contracts. Pothier reduces them to the three following:
• 1st. In contracts which are made in the sole interest of the creditor, as the deposit, good faith alone is required from the debtor: he is responsible only for gross negligence (de latâ culpâ).
“ 2d. In those contracts and quasi-contracts which are for the reciprocal interest of the parties, such as contracts of sale, &c., each is liable for ordinary negligence (de levi culpa).
“ 3d. In contracts which are entered into for the sole interest of him who has received the thing, such as the case of a gratuitous loan, the debtor is responsible for slight negligence (de levissimâ culpâ).
This doctrine charms at first, because it engraves itself easily upon the memory; but when it is necessary to make a practical application of it, and to confront it in detail with the different texts of the Digest which speak of liability for negligence (la prestation des fautes), one is brought to a stand — as even the most skilful interpreters admit — by insurmountable difficulties.
“ Thomasius, a jurisconsult who joined great profundity and vast erudition with rare sagacity, has subjected this doctrine to the examination of reason,2 and has demonstrated that the division of faults into three degrees is not exact; that the definitions of gross negligence, ordinary negligence, and slight negligence (fautes lourdes, légères, et très-légères), have not a signification sufficiently fixed and absolute for practical application ; that gross negligence and fraud, slight negligence and accident or misfortune which could not have been foreseen, are often and easily confounded; that ordinary negligence and slight negligence do not offer differences sufficiently marked and characteristic to be dis
I “These rules are not laid down in the same manner by all authors.”
? Dissertatio de Usu practico Doctrinæ de Culparum Præstatione in Contractibus, tom. ii., Dissertationum, p. 1006.
cerned with accuracy; that negligence is a relative term, the signification of which necessarily varies; that, to avoid the injustice which the rules established by the interpreters according to this division involved in their application, they have engrafted upon them so many exceptions that the result has been that the exceptions outnumber the rules; that often the rules do not conform to natural equity; that they are of no utility in actual practice at the bar; and that the Roman jurisconsults were not agreed upon this doctrine, which cannot be reduced to fixed and certain rules.”
It may not be uninteresting to inquire upon what basis a doctrine rests which has never given satisfaction in any system of law, English or foreign, into which it has been introduced.
Lord Holt, in the case of Cogg8 v. Bernard,1 outlined what is now known as the law of bailments. The groundwork of his exposition is taken from Bracton, and from the “ Institutes ” of Justinian. Bracton derived his civil law, which makes one half of his work, principally from the Glossator Azo, who in Bracton's time was a great authority upon the Roman law. The subject of bailments remained as left by Lord Holt, till the appearance, in 1781, of Sir William Jones's famous “ Essay on the Law of Bailments.” In this essay Sir William Jones proposed to treat this subject analytically, historically, and synthetically: analytically, by tracing “every part of it up to the first principles of natural reason;" historically, by showing “ with what perfect harmony those principles are recognized and established by other nations, especially the Romans, as well as by our English courts, when their decisions are properly understood and clearly distinguished ;" synthetically, by resuming “ the whole learning of bailments, and expounding “such rules as . . . will prevent any further perplexity on this interesting title, except in cases very peculiarly circumstanced.”
It is to this author that the English law is chiefly indebted for the division of negligence into three degrees ; 2 and, to make what we have to say intelligible, it is necessary to quote at some length from his essay.
He first endeavors to find “a degree of care proportioned to the nature of the bailment.” “ There are,” he says, “ infinite shades of care or diligence, — from the slightest momentary 1 L. Raym. 909.
? Essay on Bailments, p. 5.
thought, or transient glance of attention, to the most vigilant anxiety and solicitude; but extremes in this case, as in most others, are inapplicable to practice: the first extreme would seldom enable the bailee to perform the condition, and the second ought not in justice to be demanded; since it would be harsh and absurd to exact the same anxious care which the greatest miser takes of his treasure, from every man who borrows a book or a seal. The degrees, then, of care, for which we are seeking, must lie somewhere between these extremes; and, by obserying the different manners and characters of men, we may find a certain standard, which will greatly facilitate our inquiry; for, although some are excessively careless, and others excessively vigilant, and some through life, others only at particular times, yet we may perceive that the generality of rational men use nearly the same degree of diligence in the conduct of their own affairs; and this care, therefore, which every person of common prudence and capable of governing a family takes of his own concerns, is a proper measure of that which would uniformly be required in performing every contract, if there were not strong reasons for exacting in some of them a greater, and permitting in others a less, degree of attention. Here, then, we may fix a constant determinate point, on each side of which there is a series, consisting of variable terms, tending indefinitely towards the above-mentioned extremes, in proportion as the case admits of indulgence or demands rigor: if the construction be favorable, a degree of care less than the standard will be sufficient; if rigorous, a degree more will be required : and, in the first case, the measure will be that care which every man of common-sense, though absent and inattentive, applies' to his own affairs; in the second, the measure will be that attention which a man remarkably exact and thoughtful gives to the securing of his personal property.
“The fixed mode or standard of diligence I shall (for want of an apter epithet) invariably call ordinary. ... The degrees on each side of the standard, being indeterminate, need not be distinguished by any precise denomination: the first may be called less, and the second more, than ordinary diligence.
“ Just in the same manner, there are indefinite shades of default or neglect, — from the slightest inattention or momentary absence of mind to the most reprehensible supineness and stu
pidity: these are the omissions of the before-mentioned degrees of diligence, and are exactly correspondent with them. Thus, the omission of that care which every prudent man takes of his own property, is the determinate point of negligence, on each side of which is a series of variable modes of default, infinitely diminishing, in proportion as their opposite modes of care infinitely increase; for the want of extremely great care is an extremely little fault, and the want of the slightest attention is so considerable a fault that it almost changes its nature, and nearly becomes in theory, as it exactly does in practice, a breach of trust, and a deviation from common honesty. This known, or fixed, point of negligence is therefore a mean between fraud and accident: and, as the increasing series continually approaches to the first extreme, without ever becoming precisely equal to it, until the last term melts into it or vanishes ; so the decreasing series continually approximates to the second extreme, and at length becomes nearer to it than any assignable difference: but the last terms being, as before, excluded, we must look within them for modes applicable to practice; and these we shall find to be the omissions of such care as a man of common-sense, however inattentive, and of such as a very cautious and vigilant man, respectively, take of their own possessions.
66 The constant or fixed mode of default I likewise call ordinary; ... of the two variable modes, the first may be called greater, and the second less, than ordinary, or the first gross, and the other slight, neglect.”
He then proceeds: “ Having discovered the several modes of diligence which may justly be demanded of contracting parties, let us inquire in what particular cases a bailee is by natural law bound to use them, or to be answerable for the omission of them.”I And he finally infers that when the contract is reciprocally beneficial to both parties, ordinary diligence should be required of the bailee ; when the bailor only receives a benefit from the contract, the bailee should not be responsible, except for gross neglect; and where the bailee alone is benefited, he should be bound to answer even for slight neglect.
Though subsequent attempts have been made to draw sharper and clearer lines of division between the degrees of negligence
1 The meaning appears to be, Let us inquire what particular mode can reasonably be required of a bailee under given circumstances. But see Essay on Bailments, p. 60.