Nature and incidence of tortuous liability during the Feudal period between 800AD-1450

A tort is defined by Winfield as a civil wrong for which the remedy is a common
law action for the liquidated, which is not exclusively the breach of a contract, trust, or
any other equitable obligation.
The development of law is closely related to development of the society.
Tortuous liability as per Winfield states that, tortuous liability arises from breach of a
duty primarily fixed by the law, this duty is towards the person generally and this breach
is redressable by an action for un liquidated damages.1In relation to the topic;
Prelude to the feudal societies there were slave societies which grew weak because they
couldn’t sustain production based on slavery. The Roman Empire which was based on
slave production couldn’t be sustained because;
As the Roman Empire grew increasingly the romans stopped the slaving the places they
had conquered .there was an imbalance in the state population because generally male
slaves were preferred.
Slave population declined and it became difficult to sustain agriculture and hence
greater exploitation of the few slaves who were available. Thus the barbarians overthrew
the economic empire they destroyed all the civilization .the urban areas collapsed and
society was restored to rural operations. It was out the colonies that the feudal system of
production emerged .these were small units which agriculture was based in the feudal
societies. They were characterized by use of ploughs ,water wheels ,homes ,agricultural
production and handcraft industry ,a few towns were at the center of feudal system,
divisions of land included ; pieces of land allocated to the serfs for their cultivation and
labour services to the landlord. The third piece was for the common man and constituted
pasture, wood, water for surplus production was also extracted.
In the feudal towns there was a guild system and was operational to the mammary
system and guild was headed by the guild master .Risks at this stage were minimal
though there injuries associated with the state these included injuries out of accident or
negligence were existent but they arose from intentional conduct.
1
Winfield and Jolowcz.
 This period also had the formation of the common law system which is also the basis
of today’s legal system. There was hegemony of the church as it was the largest land
owner and had a lot of political power. Though the serfs were not slaves in the sense of
being owned by the landlords they were tied to the land by law. The law therefore was
preoccupied with the interests on the land.
This was later opposed by the Magna Carta of 1215 which sought to protect the rights
of serfs .This led to the formation of writs. A writ was a way of starting a legal action and
covered various conducts that were considered actionable. If a writ didn’t cover a
particular situation then the person didn’t have a remedy. All cases were regarded as
criminal there were no demarcations .Private actions were risky because they could be
tried by battle and if one lost they could lose their property or even be sent to jail.
Towards the 13th century the writ of trespass was introduced and formed the foundation
of tort. It was both civil and criminal because if successful it ended in compensation of
the plaintiff and punishment to the defendant. This was introduced in1272 and was aimed
at serious possible breach of peace.
Originally, since most torts were also regarded as criminal actions, the defendant
typically was punished according to the criminal laws. In time however, they also began
to allow individual victims of the defendant’s tortious (i.e., criminal) conduct to sue for
their own personal damages as well. The writ of trespass commonly became used for
purpose .actually, those actions based upon trespass were divided into several sub-
catergioes, and each with its separate writ associated with particular type of
misconduct .tresspass de bonis asportatis was used for damages to the plaintiff goods
which had been “carried away” by the defendants.
Trespass quare clausum fregit was used in cases were the defendants physically on to
the plaintiffs land by “breaking the imaginary clause” that represented the boundary line
that surrounded the property.
This tort consisted of doing any the following without lawful justification
 Entering upon land possession of another
 Remaining on the land
 Placing or projecting any object upon it
Every warrantable entry on another’s soil the law entitles a trespass by breaking his close.
The words of the writ of trespass commanding the defendant to shew cause, quare
clausum queretis fregit for every man eye of the law enclosed and set apart from his
neighbor’s and divided from another by a hedge, or by an ideal invisible boundary,
existing only in the contemplation of the law as when one’s man land adjoins to another’s
in the same field 2
Finally, trespass vi et armis was used for those other tort actions where by the plaintiff
suffered injury to person or property by virtual of the defendants direct and forcely
misconduct .trespass to the plaintiffs person as in illegal assault ,battery ,woundny,or
imprisonment when not under color of legal process or when the battery woundiry or
imprisonment continued after the process had ceased to be lawful .this action also lay for
injury to relative rights ,such as monary tenants or servants ,beatiny and wounding a
spouse etc…
Trespass on case; it was an action to recover damages that are not immediate result of
wrongful act but rather a later consequence it was a precursor to a variety of modern day
tort claims including negligence, nuisance etc…..this writ game a form of action in which
the court was an able to render judgment of damages in cases of fraud ,negligence
deceit ,demation oral or written and all other injurious acts or omissions resulting in
harm to the person or property ,but wanting e vi et arms, the elements of direct force and
violence to constitute trespass3

The trespass was further divided into writs, for example the writ of debt, account etc.
So today what we call assault, battery and theft were all covered under trespass,
It should be remembered that with trespass, intension was immaterial at that time unlike
today.
False imprisonment was also handed as battery because it inflicted force, or injury to the
body.
Malicious prosecution was not differentiated from false imprisonment, but was called a
writ of conspiracy.
The law of tort had common characteristics
2
Willam blackstone commentatries on the laws of England pg 209-10 (1768)
3
Edwin .E.Bryint the law of pleading under the codes of civil procedure 7 ( 2 ded 1899)
1] At first it was criminal, but took a quasi criminal nature
2] It did not make a distinction between careless, intentional and accidental wrongs.
3] Writs were designed to address particular interests and issues of serfs were not
considered.
To sum it up in a nutshell the feudal society or societies led to the formation of
foundation of tort law due to the various forms of conduct that arose conflict in these
societies.