Introduction to the Common Law

James Gordley

I. The Writ System

James Gordley, Hao Jiang and Arthur von Mehren, Introduction

to the Comparative Study of Private Law (2nd ed. 2021), 28-30.

The common law is based, not on Roman legal texts or codes, but on cases decided by
judges. Peter Stein has noted that the work of the Roman jurists and that of the common law
judges was similar in that it depended on the use of particular cases.1 But it would be a mistake to
think that the method of the English judges who founded the common law was like that of the
Roman jurists. They were using their cases in very different ways.

The Roman jurists used cases to clarify the meaning of general concepts such as ownership,
possession, fault, sale, and lease. Traditionally, English judges used cases to determine the
boundaries of the writs recognized by the common law courts.
The common law courts were the king’s courts. To bring a case before them, the plaintiff had to
obtain a “writ” from the royal chancellor. If the plaintiff were denied a writ, it did not mean that
he had not been wronged unjustly or that he should not have a remedy. It meant that he could not
receive a remedy from the king’s courts. He must bring his case somewhere else: in the feudal
courts of knights or barons, in the Church courts, in the courts of a town, in the merchants’ courts.

At first, the chancellor created new writs as new cases arose which, in his judgment, the
royal courts should hear. Eventually, the number of writs became fixed, so that by the 14th century
no new writs were being created. Until the 19th century, to obtain relief, the facts of the plaintiff’s
case had to fit one of the existing writs, often called the “forms of action.”
Common law procedure was divided into two stages. During the first, the parties argued before
the kings’ judges in London whether the plaintiff was entitled to a writ, given the facts of his case.
If the judges determined that he was, then the second stage was a trial of the facts in locality in
which the wrong supposedly had occurred.

In the first phase, the plaintiff alleged that he was entitled to a certain writ. For example,
he might plead that on a certain day at a certain place the defendant had struck him with a stick,
thereby committing “assault and battery by force and arms in violation of the king’s peace.” On
these facts he would be entitled to a writ of “assault and battery.” If the defendant had harmed or
taken away his goods, he would be entitled to a writ called de bonis asportatis, if he had entered
or harmed the plaintiff’s land, to a writ called quare clausum fregit, and so forth. The defendant
then had three choices. He could “traverse,” which meant that he could deny the facts that the
other party alleged: for example, that he had ever struck the plaintiff. He could “demur,” which
meant that he could concede the facts of it but claim that he should prevail anyway. Or he could
“plead new matter” which meant that he could allege additional facts which, if true, might entitle
him to prevail: for example, that he struck the plaintiff with a stick because the plaintiff had

1
Peter G. Stein, “Roman Law, Common Law and Civil Law,” Tulane L. Rev. 66 (1992), 1591 at 1591-1592.
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attacked him with a knife. If he pled new matter, the plaintiff then had the same three choices: to
traverse, to demur, or to plead new matter.

The pleading phase ended when one of the parties either traversed or demurred. If he
traversed, the lawsuit went to the second phase: there was a trial to determine whether the truth of
the facts that were in dispute. If a demurred, there was no second phase. The judges would decide
whether the plaintiff was entitled to a writ. For example, if, after the defendant alleged the plaintiff
attacked with a knife, the judges would decide in favor of the defendant. The reason, we would
now say, is that the defendant acted in self defense. The reason, so far the common law judges
were concerned, was that on these facts the plaintiff was not entitled to a writ of assault and battery.
The English judges, unlike the Roman jurists, never developed a substantive law that was sharply
separated from the procedural question of what writ the plaintiff could bring. As Sir Henry Maine
said of writ system, substantive law was secreted in the interstices of procedure.2

If a party traversed, then a trial was conducted in the locality is which the wrong had
allegedly been committed. Beginning in the 13th century, the procedure was a trial by jury. One
of the king’s judges would appear in the locality, assemble twelve people who lived there, and
have them swear an oath to determine the truth of the facts in dispute. If the defendant had denied
attacking the plaintiff, they would determine whether he had done so. For centuries, the jury
reached its conclusion without hearing evidence or arguments from lawyers. The jurors lived in
the neighborhood. They were supposed to know what happened.
Later, the procedure was quite different. Only those who had no previous knowledge of the events
in question were allowed to be members of the jury. They listened to the testimony of witnesses.
The parties’ cases were presented to them by lawyers. The judge would instruct them on the law
before they reached their decision as to which party should prevail. A lawyer might object the
judge’s instructions, in which case the merits of the objection would be determined by the judges
in London. Procedure had taken its modern form in a trial is followed by an appeal, and the appeal
by a judicial decision.

The common law had been the law of the thirteen British colonies which declared
themselves independent in 1776 and became the United States of America. After the Revolution,
the thirteen colonies became federal states. The common law remained in force in each. In the
Unites States, the common law remains state law, although some parts of it have been replaced by
federal statutes.

F.W. Maitland, The Forms of Action at Common Law (1906).

Let us remember one of Maine's most striking phrases, 'So great is the ascendancy of the
Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of
being gradually secreted in the interstices of procedure1.' Assuredly this is true of our real property
law, it has been secreted in the interstices of the forms of action. The system of Forms of Action

2
Henry Maine, Dissertations on Early Law and Custom (London, 1883), 389.
1
Maine, Early Law and Custom, 389.

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or the Writ System is the most important characteristic of English medieval law, and it was not
abolished until its piecemea1 destruction in the nineteenth century2.

What was a form of action? Already owing to modern reforms it is impossible to assume
that every law student must have heard or read or discovered for himself an answer to that question,
but it is still one which must be answered if he is to have more than a very superficial knowledge
of our law as it stands even at the present day. The forms of action we have buried, but they still
rule us from their graves. Let us then for awhile place ourselves in Blackstone's day, or, for this
matters not, some seventy years later in 1830, and let us look for a moment at English civil
procedure.

Let it be granted that one man has been wronged by another; the first thing that he or his
advisers have to consider is what form of action he shall bring. It is not enough that in some way
or another he should compel his adversary to appear in court and should then state in the words
that naturally occur to him the facts on which he relies and the remedy to which he thinks himself
entitled. No, English 1aw knows a certain number of forms of action, each with its own uncouth
name, a writ of right, an assize of novel disseisin or of mort a’ancestor, a writ of entry sur disseisin"
in the per and cui, a writ of besaiel, of quare impedit, an action of covenant, debt, detinue, replevin,
trespass, assumpsit, ejectment, case.

We can now attempt to draw some meagre outline of the genera1 history of these forms of
action, remembering however that a full history of them would be a full history of English private
law. . . .

Now I think that our first step should be to guard ourselves against the notion that from the
very beginning it was the office or the king's own court or courts to provide a remedy for every
wrong. This is a notion which we may but too easily adopt. In the first place it seems natural to us
moderns, especially to us Englishmen, that in every decently governed country there should be
some one tribunal, or some one definitely organized hierarchy of tribunals, fully competent to
administer the whole law, to do right to every man in every case. In the second place it is true that
in England such a scheme of centralized justice has existed from what, having regard to other
countries, we may call a very remote time; it has existed for some five hundred years. Ever since
Edward I's time, to name a date which is certainly not too recent, the law of England has to a very
large extent been the law administered by the king's own courts, and to be without remedy in those
courts has commonly been to be without any remedy at all. A moment's reflection will indeed
remind us that we must use some such qualifying words as ‘to a very large extent' when we lay
down these wide propositions. Think for one moment of the copyholder, or of his predecessor the
tenant in villeinage; he was not protected in his holding by the king's court, still to regard him as
without rights would be a perversion of history. And then think of the ecclesiastical courts with
their wide jurisdiction over matrimonial and testamentary causes; at least until the Reformation
they were not in any sense the king's courts; their power was regarded as a spiritual power quite
independent of the temporal power of the state. But in the third place we may be led into error by
good masters. So long as the forms of action were still in use, it was difficult to tell the truth about
their history. There they were, and it was the duty of judges and text writers to make the best of
them, to treat them as though they formed a rational scheme provided all of a piece by some all-

2
Eg post, p. 301.

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wise legislator. It was natural that lawyers should slip into the opinion that such had really been
the case, to suppose, or to speak as though they supposed, that some great king (it matters not
whether we call him Edward I or Edward the Confessor, Alfred or Arthur) had said to his wise men
'Go to now! a well ordered state should have a central tribunal, let us then with prudent forethought
analyze all possible rights and provide a remedy for every imaginable wrong.' It was difficult to
discover, difficult to tell, the truth, difficult to say that these forms of action belonged to very
different ages, expressed very different and sometimes discordant theories of law, had been twisted
and tortured to inappropriate uses, were the monuments of long forgotten political struggles; above
all it was difficult to say of them that they had their origin and their explanation in a time when the
king's court was but one among many courts. But now, when the forms of action are gone, when
we are no longer under any temptation to make them more rational than they were, the truth might
be discovered and be told, and one part of the truth is assuredly this that throughout the early
history of the forms or action there is an element of struggle, of struggle for jurisdiction. In order
to understand them we must not presuppose a centralized system of justice, an omni-competent
royal or national tribunal; rather we must think that the forms of action, the original writs, are the
means whereby justice is becoming centralized, whereby the king's court is drawing away business
from other courts3….

II. The Law of Contract

1. The doctrine of consideration

James Gordley, Foundations of American Contract Law

(forthcoming, Oxford Univ. Press).

Before the 19th century, common lawyers did not think in terms of categories such as
contract and tort. The common law was organized by writs. Since the Middle Ages, a plaintiff
needed to bring the facts of his case within the scope of a writ to sue in the common law courts.
Otherwise, though he might be entitled to a remedy as a matter of justice, he had to seek it
elsewhere: for example, in a manorial court, a municipal court, a merchants’ court, or an
ecclesiastical court. By the 18th century, two writs were used to enforce a promise: covenant and
assumpsit. Covenant could be used to enforce a promise made under seal, which was formality in
which an impression was made on a document on which the promise was written. Assumpsit could
be used to enforce a promise which had “consideration.” Whether it did was determined by a body
of lore to be found in the decided cases. Only in the 19th century, was consideration defined, as it
is today, as bargain or exchange.

In the 19th century, the common lawyers that the common law actions of covenant and
assumpsit constituted a law of contract. They developed a systematic body of contract law for the
first time. They did so, like jurists on the continent, on premises that were positivist, conceptualist

3
As an example of the theory against which it is necessary to protest see Blackstone’s account of Alfred’s exploits,
Comm. IV. 411; ‘To him we owe that masterpiece of judicial polity, the subdivision of England into tithings and
hundreds, if not into counties; all under the influence and administration of one supreme magistrate, the king; in whom
as in a general reservoir, all the executive authority of the law was lodged, and from whom justice was dispersed to
every part of the nation by distinct, yet communicating ducts and channels; which wise institution has been preserved
for near a thousand years unchanged form Alfred’s to the present time.’

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and voluntarist. The continental jurists, however, were replacing one theory of contract law with
another. The common lawyers were developing a theory for the first time. They borrowed a great
deal form continental writers. The common lawyers claimed that the ideas they borrowed best
explained liability in covenant and assumpsit.

In this transformation, a leading role was played by treatise writers. As A.W.B. Simpson
noted, before the 19th century, there was little literature on what we call the common law of
contract.1 Aside from the reports of the decided cases, there were only a few pages in William
Blackstone’s Commentaries on the Laws of England (1766). The first treatise on the common law
of contract was written by John J. Powell in 1794.2 Thereafter, treatises appeared in ever growing
numbers.

The treatise writers identified consideration with bargain or exchange. To do so was an

innovation. Previously, as John Dawson noted:

“‘Consideration’ was only one of the words employed to precipitate the vague sensation
that it was necessary to stop somewhere. … [T]he term ‘consideration on its first appearance
merely expressed obscurely the feeling that there should be some sufficient reason, ground or
motive that would justify enforcement of a promise.”3

The common law courts had found consideration for promises to bargain or exchange. But
they had found consideration for other promises which they wished to enforce without the
formality of a seal. They held that there is consideration for a promise by a parent to give money
to a prospective son-in-law after his marriage. One can hardly imagine a prospective son-in-law
asking for such a promise to be made under seal. They held there was consideration for the
promisor to look after and return property when it was borrowed gratuitously or entrusted to the
his care gratuitously. It would be unreasonable to expect such promises to be made under seal.
One party was doing the other a favor.

Beginning with William Blackstone,4 common lawyers identified consideration with the
civil law concept of causa. John J. Powell5 and William Taylor6 did so in England, and, in the
United States, Samuel Comyn,7 William Wentworth Story,8 and Theophilus Parsons.9 As A.W.B.
Simpson said, the common lawyers seemed to regard consideration as a local version of the
doctrine of causa.10

1
A.W.B. Simpson, Innovation in Nineteenth Century Contract Law, 91 L.Q. REV. 247, 250-51 (1975).
2
JOHN J. POWELL, ESSAY UPON THE LAW OF CONTRACTS AND AGREEMENTS 1 (London, 1790)
3
JOHN P. DAWSON & WILLIAM BURNETT HARVEY, CONTRACT AND CONTRACT REMEDIES CASES AND MATERIALS
540 (1959).
4
2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 444-46 (1766).
5
POWELL, supra note 2, at 331
6
WILLIAM TAYLOR, A TREATISE ON THE DIFFERENCES BETWEEN THE LAWS OF ENGLAND AND SCOTLAND RELATING
TO CONTRACTS 16 (1849)
7
1 SAMUEL COMYN, CONTRACTS AND AGREEMENTS NOT UNDER SEAL *8 (1809).
8
WILLIAM W. STORY, A TREATISE ON THE LAW OF CONTRACTS 431, 431 n. 1 (1851).
9
1 THEOPHILUS PARSONS, THE LAW OF CONTRACTS 355 (1860).
10
Simpson, supra note 1, at 262.

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As we have seen, according to that doctrine, there are two causae or good reasons why the
parties would make a contract or the law would enforce one: to exercise liberality and to obtain an
equivalent in exchange for what one gave in return. The common lawyers identified consideration
with the causa of a contract of exchange. According to Blackstone, as “[t]he civilians hold …
there must be something given in exchange, something that is mutual and reciprocal.”11 In civil
law, promises to give away money or property were usually required the formality of notarization
to be enforceable. Identifying the consideration with the causa of a contract of exchange made
the common law look like the civil law. Contract to confer a benefit gratuitously were enforceable
in covenant which required the formality of a seal. Contracts to exchange were enforceable in
assumpsit.

The fit was far from perfect. As noted, the common law courts had found consideration in
transactions that are bargains in any ordinary sense. One example was a promise by a parent to
give money to a prospective son-in-law. Another was a promise to look after and return property
that the promisee had loaned gratuitously or that the promisor had gratuitously agreed to keep safe
for him. Continental lawyers had classified them as acts of liberality, and distinguished them for
other acts of liberality, such as promises to give away money or property, which were intended to
enrich one party at the donor’s expense. The latter required a formality to be binding; the former
did not. If such promises in these transactions had consideration, and consideration meant bargain,
there was a problem. These transactions were not bargains

Frederick Pollock, Principles of Contract at Law and in Equity, Being a Treatise

on the General Principles Concerning the Validity of Agreements, with a Special
View to the Comparison of Law and Equity, and with References to the Indian
Contract Act, and Occasionally to Roman, American, and Continental
Law (1876). 147, 150-51,

Considering the amount of coincidence (if not more than coincidence) between English and Roman
law in the main principles of Contract, I have felt justified in making a pretty free use of the Roman
law for purposes of illustration and analogy, I have also referred at times to modern Continental
Codes, especially where it seemed that light might be thrown on a topic of special legislation, or
of what is called “the policy of the law,” by extending the range of observation. However no
systematic comparison has been undertaken. On points of Roman law (and to a considerable
extent, indeed, on the principles it has in common with our own), I have consulted and generally
followed Savigny’s great work. (Preface viii)

It is somewhat curious that no such thing as a satisfactory Contract a definition of is to be found

in any of our books.
…
As regards many if not most of its principles the English law of Contract is founded on or
identical with the Roman. But the doctrine of Consideration, at least in the generality of form and
application in which we now have it, is believed to be peculiar to England.

[I]n 1459 we find a great advance. [An action was brought] on an agreement between the
plaintiff and defendant that plaintiff should marry one Alice, the defendant’s daughter, on which

11
WILLIAM BLACKSTONE COMMENTARIES ON THE LAWS OF ENGLAND 444 (1766).

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marriage defendant would give plaintiff 100 marks. Averment that the marriage had taken place
and the defendant refused to pay. Danvers, J. said: “The defendant has Quid pro quo: for he was
charged with the marriage of his daughter and by the espousals he is discharged, so the plaintiff
has done what was to be paid for. So if I tell a man , if he will carry twenty quarters of wheat of
my master Prisot’s to G., he shall have 40s., and thereupon he carry them, he shall have his action
of debt against me for the 40s . ; and yet the thing is not done for me , but only by my command:
so here he shows that he has performed the espousals, and so a good cause of action has accrued
to him: otherwise if he had not performed them”. [M. 37 H.6.8, pl. 18] … It is pretty clear … that
Danvers at any rate had grasped the leading and characteristic point of the modern learning of
Consideration - namely that when a thing is done at a man’s request the law does not ask whether
it is for his apparent benefit, but takes it as against him to be of the value he has himself chosen to
put upon it. The word is not here used, but the thing is expressed by Quid pro quo….

But so far as we know the first full discussion of Consideration by that name is in Plowden’s report
of Sharington v . Strotton (Mich. 7 & 8. Eliz.) )[ Plowd. 298, 302.]… The argument for the
plaintiffs insists on “value or recompence” as the essence of Consideration, and shows a full
understanding of the law in its modern sense. Among other cases marrying the promisor’s
daughter at his request is put as a good consideration. The argument for the defendants is long and
desultory and goes into much irrelevant matter about Aristotle, the utility of marriage, and the Law
of Nature: and the notion is brought in that the consideration for a promise must show some
apparent benefit to the promisor: it is said that a promise to pay money in consideration of
marriage, such as above mentioned, would be nudum pactum but for regard to Nature (a). … In
the result the Court held that the covenant was effectual to transfer the use, natural love and
affection being a sufficient consideration to support it. It does not appear whether they were
prepared to go the whole length of the argument for the defendants and hold natural love and
affection a good consideration for contracts of all sorts.

At least one other point of great importance remained open even in practice down to a
much later time. The anomalous doctrine that the existence of a previous moral obligation is
enough to support an express promise was held by eminent judges a few generations back, and
was overruled only in 1840 by the decision of the Exchequer Chamber that “a mere moral
obligation arising from a past benefit not conferred at the request of the defendant” is not a good
consideration. It is a corollary from the rule above shown to be a distinguishing mark of English
jurisprudence that the amount of the consideration is not material. “The value of all things
contracted for is measured by the appetite of the contractors , and therefore the just value is that
which they be contented to give.” [ Hobbes, Leviathan, pt. 1. c. 15.]

It is accordingly treated as an “elementary principle that the law will not enter into an
inquiry as to the adequacy of the consideration” [Westlake v. Adams , 5 C.B.N.S. 248, 265, 27
L.J.C. P. 271, per Byles , J.] This is of long standing, and illustrated by many cases. “When a
thing is to be done by the plaintiff, be it never so small , this is a sufficient consideration to ground
an action” [Sturlyn v. Albany,1 Cro . Eliz . 67, and see Cro . Car . 70,] The following are modern

1
Editor’s note: In Sturlyn v Albany, the plaintiff had leased to a third party who had granted his estate to the
defendant. The plaintiff asked the defendant to pay the rent which he promised to do if the plaintiff would show him
a deed proving the rent was due. The showing of the deed was said to be consideration for the paying of the rent.

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examples. If a man who owns two boilers allows another to weigh them, this is a good
consideration for that other’s promise to give them up after such weighing in as good condition as
before. “The defendant” said Lord Denman “had some reason for wishing to weigh the boilers,
and he could do so only by obtaining permission from the plaintiff, which he did obtain by
promising to return them in good condition. We need not inquire what benefit he expected to
derive.” [Bainbridye v. Pirmstone, 8 A. & E. 743.]
...
The principle of all these cases may be summed up in the statement made in so many words
by the judges in more than one of them, that the promisor has got all that he bargained for.

[From the 4th edition (1885), 173: The modern theory of the obligation incurred by a bailee who
has no reward is that the bailor’s delivery of possession is the consideration for the bailee’s promise
to keep or carry it safely. The bailor parts with the present control of the goods; and this is so far
a detriment to him, though it may be no benefit to the bailee, and the bailee’s taking the goods is
for the bailor’s use and convenience. [citing O.W. Holmes, 2The Common Law, 291]

Restatement (Second) of Contracts (American Law Institute, 1981). § 71.

.
(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange
for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.

Wickham & Burton Coal Co. v. Farmers' Lumber Co.,

179 N.W. 417, 417-18 (Iowa, 1920).

The counterclaim alleges that about August 18, 1916, defendant, through an agent, entered
into an oral agreement “whereby plaintiff agreed to furnish and to deliver to defendant orders given
them” for carload shipments of coal from defendant f. o. b. mines, “to be shipped to defendant at
such railroad yard stations as defendant might direct, at the price of $1.50 a ton on all orders up to
September 1, 1916, and $1.65 a ton on all orders from then to April 1, 1917.” It is further alleged
that “said coal ordered would be and consist” of what was known as plaintiff's Paradise 6″ lump,
6x3″ egg, or 3 x2″ nut coal. It is next alleged that defendant has for several years last past been
engaged in owning and operating what is commonly known as a line of lumber yards, located at
different railroad station points tributary to Ft. Dodge, where defendant has its principal place of
business; that at these several lumber yards, among other merchandise and commodities, the
defendant handles coal in carload lots, with purpose of selling the same at retail to its patrons. Then
comes an allegation that the agent made oral agreement “that plaintiff would furnish unto

2
Editor’s note. Holmes discussed a case that Pollock did not cite: Coggs v. Bernard, (1703) 2 Ld Raym 909, 92 ER
107. A porter was held liable for damaging a cask of rum which he had promised gratuitously to carry to the
owner’s lodgings

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defendant coal in carload lots, that defendant would want to purchase from plaintiff” on stated
terms….

Appellant does not deny that a promise may be a consideration for a promise. Its position
is that this is so only of an enforceable promise. … In the last analysis the counterclaim is based
on the allegation that plaintiff undertook to furnish defendant such described coal “as defendant
would want to purchase from plaintiff.” … What obligation did this fasten upon defendant? It did
not bind itself to buy all it could sell. It did not bind itself to buy of plaintiff only. It merely “agreed”
to buy what it pleased. It may have been ascertainable how much it would need to buy of some
one. But there was no undertaking to buy that much, or, indeed, any specified amount of coal of
plaintiff. The situation is well stated in some of the cases. In Crane v. Crane, 105 Fed. at 872, 45
C. C. A. 96, 99, it is put thus:

“Should the contract under discussion be upheld, the plaintiffs in error would be
held to occupy this advantageous situation: If the prices of dock oak lumber rose,
they would by that much increase their ratio of profits, and probably come into a
situation to outbid competitors, and increase also the quantum of orders; if, on the
other hand, prices fell below the range of profits, the orders could be wholly
discontinued. On the contrary, the situation of the defendant in error would be this:
Should prices fall, it could not compel the plaintiffs in error to give further orders;
but, should prices rise, the orders sent in would be compulsory, and the loss
measured both by the increase of the ratio of profits and the probable increase of
the quantum of orders.”

Uniform Commercial Code § 2-306

(1) A term which measures the quantity by the output of the seller or the requirements of the
buyer means such actual output or requirements as may occur in good faith, except that
no quantity unreasonably disproportionate to any stated estimate or in the absence of a
stated estimate to any normal or otherwise comparable prior output or requirements may
be tendered or demanded.

2. The Doctrine of Promissory Reliance

Ricketts v. Scothorn,
77 N.W. 365 (Neb. 1898).

The material facts are undisputed. They are as follows: John C. Ricketts, the maker of the
note, was the grandfather of the plaintiff. Early in May [1891] – presumably on the day the note
bears date––he called on her at the store where she was working. What transpired between them
is thus described by Mr. Flodene, one of the plaintiff's witnesses: “A. Well, the old gentleman
came in there one morning about nine o'clock, probably a little before or a little after, but early in
the morning, and he unbuttoned his vest, and took out a piece of paper in the shape of a note; that
is the way it looked to me; and he says to Miss Scothorn, ‘I have fixed out something that you
have not got to work any more.’ He says, none of my grandchildren work, and you don't have to.

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Q. Where was she? A. She took the piece of paper and kissed him, and kissed the old gentleman,
and commenced to cry.” … On June 8, 1894, Mr. Ricketts died.
...

Her right to the money promised in the note was not made to depend upon an abandonment of her
employment with Mayer Bros., and future abstention from like service. Mr. Ricketts made no
condition, requirement, or request. He exacted no quid pro quo. He gave the note as a gratuity, and
looked for nothing in return. So far as the evidence discloses, it was his purpose to place the
plaintiff in a position of independence, where she could work or remain idle, as she might choose.
The abandonment of Miss Scothorn of her position as bookkeeper was altogether voluntary. It was
not an act done in fulfillment of any contract obligation assumed when she accepted the note.
...
But it has often been held that an action on a note given to a church, college, or other like
institution, upon the faith of which money has been expended or obligations incurred, could not
be successfully defended on the ground of a want of consideration. Barnes v. Perine, 12 N. Y.
18; Philomath College v. Hartless, 6 Or. 158; Thompson v. Board, 40 Ill. 379; Irwin v. Lombard
University, 56 Ohio St. 9, 46 N. E. 63. In this class of cases the note in suit is nearly always spoken
of as a gift or donation, but the decision is generally put on the ground that the expenditure of
money or assumption of liability by the donee on the faith of the promise constitutes a valuable
and sufficient consideration. It seems to us that the true reason is the preclusion of the defendant,
under the doctrine of estoppel, to deny the consideration. Such seems to be the view of the matter
taken by the supreme court of Iowa in the case of Simpson Centenary College v. Tuttle, 71 Iowa,
596, 33 N. W. 74, where Rothrock, J., speaking for the court, said: “Where a note, however, is
based on a promise to give for the support of the objects referred to, it may still be open to this
defense [want of consideration], unless it shall appear that the donee has, prior to any revocation,
entered into engagements, or made expenditures based on such promise, so that he must suffer loss
or injury if the note is not paid. This is based on the equitable principle that, after allowing the
donee to incur obligations on the faith that the note would be paid, the donor would be estopped
from pleading want of consideration.”
...
Under the circumstances of this case, is there an equitable estoppel which ought to preclude the
defendant from alleging that the note in controversy is lacking in one of the essential elements of
a valid contract? We think there is.

James Gordley, Foundations of American Contract Law

(forthcoming Oxford Univ. Press)

According to the doctrine of “promissory reliance” or “promissory estoppel,” a promise

made without a seal and without consideration is enforceable if the promisor could reasonably
expect the promisee to change his position in reliance on it, and the promisee did so to his
detriment. It was formulated to enforce some promises that lacked consideration under the
bargained-for-detriment formula and others that supposedly did not.

10
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One type of promise that lacked had been noted by Williston in 1920 in his influential
treatise on contracts.1 It was the Nebraska case of Ricketts v. Scothorn.2 Kathy Scothorn’s
grandfather had given her note for $ 2000 so that she could quit her job, which she did. He died
before the note was paid. The court required his executors to pay the note on the ground that she
quit work in reliance on the promise.3 The court had said that the executors were required to pay
because Scothorn had quit work in reliance on the promise. Williston suggested that the courts
might be allowing reliance by the promisee to serve as a substitute for consideration. Nevertheless,
he said, although that idea is “by no means without intrinsic merit, if generally applied it would
much extend liability on promises and ...; at present it is opposed to the great weight of authority.”4
A few years later, despite what he had called “the great weight of authority,” he wrote the doctrine
into § 90 of the First Restatement.

Williston and Corbin also believed that this doctrine better explained why courts had
enforced promises in the situations discussed earlier which are not bargains in any ordinary sense.
In support of the new doctrine, Williston cited the cases enforcing promises made in prospect of
marriage and to charitable institutions.5 The married couple supposedly relied on the parent’s
promise by marrying. The charitable institution supposedly had spent money in reliance on the
donor’s promise.

Corbin had arrived at the reliance principle at almost the same time but by a different route.
In his 1919 edition of Anson’s Principles of the Law of Contract, he claimed that when courts find
consideration they are sometimes holding the promisor liable because of “subsequent facts
consisting of acts in reliance on the promise.”6 Although he did not say so expressly, he seems to
have been thinking of the cases in which courts had found consideration for gratuitous loans and
deposits of property.7 These, again, were the sort of cases that Pollock had devised his formula in
order to explain.

Restatement (Second) of Contracts § 90

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the
part of the promisee or a third person and which does induce such action or forbearance is

1
1 SAMUEL WILLISTON, THE LAW OF CONTRACTS § 139 (1920).
2
FREDERICK POLLOCK, PRINCIPLES OF CONTRACT AT LAW AND IN EQUITY 650 n. 1 (Gustavus Wald & Samuel
Williston, eds., 7th English ed., 3d American ed. 1906).
3
77 N.W. 365 (Neb. 1898).
4
1 SAMUEL WILLISTON & GEORGE THOMPSON, A TREATISE ON THE LAW OF CONTRACTS § 139 (1937),
5
Id. He also mentioned to give land when the promisee had moved on and made improvements.
6
WILLIAM R. ANSON, PRINCIPLES OF THE LAW OF CONTRACT WITH A CHAPTER ON THE LAW OF AGENCY § 118 at 116
n. 3 (Arthur L. Corbin, ed., 14th English ed., 3d American ed. 1919). He had come close to this position a year earlier
when he disapproved a statement by Holmes that “[i]t is not enough that the promise induces the detriment or that the
detriment induces the promise if the other half is wanting.” Wisconsin & Mich. R.R. v. Powers, 191 U.S. 379, 386
(1903). Corbin said, “[t]here are all too many decisions enforcing a promise where the only consideration was some
expected action in reliance upon it for us to adopt [this statement] without reserve.” Arthur L. Corbin, Does a Pre-
Existing Duty Defeat Consideration? – Recent Noteworthy Decisions, 27 YALE L.J. 362, 368 (1918).
7
In the text Corbin was editing, Anson had listed them as exceptions to the normal requirements of consideration. ANSON,
supra note 6, at § 122 at 119; §§ 133-35 at 132-35 In contrast, Williston, while uncomfortable with these cases, seems
to have thought that they could be explained as instances of genuine consideration or else as tort actions. 1 WILLISTON,
supra note 21, at § 138.

11
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binding if injustice can be avoided only by enforcement of the promise. The remedy
granted for breach may be limited as justice requires.
(2) A charitable subscription or a marriage settlement is binding under Subsection (1) without
proof that the promise induced action or forbearance.

Note. Subsection 2 was added after a commentator on the original draft observed that courts had
been enforcing promises made to charitable institutions and in prospective sons- or daughters-in-
law without requiring proof of reliance.

Drennan v. Star Paving Co.,

333 P.2d 757, 758-60 (Cal. 1958).

Defendant appeals from a judgment for plaintiff in an action to recover damages caused
by defendant's refusal to perform certain paving work according to a bid it submitted to plaintiff.
On July 28, 1955, plaintiff, a licensed general contractor, was preparing a bid on the ‘Monte
Vista School Job’ in the Lancaster school district. Bids had to be submitted before 8:00 p. m.
Plaintiff testified that it was customary in that area for general contractors to receive the bids of
subcontractors by telephone on the day set for bidding and to rely on them in computing their
own bids. Thus on that day plaintiff's secretary, Mrs. Johnson, received by telephone between
fifty and seventy-five subcontractors' bids for various parts of the school job. As each bid came
in, she wrote it on a special form, which she brought into plaintiff's office. He then posted it on a
master cost sheet setting forth the names and bids of all subcontractors. His own bid had to
include the names of subcontractors who were to perform one-half of one per cent or more of the
construction work, and he had also to provide a bidder's bond of ten per cent of his total bid of
$317,385 as a guarantee that he would enter the contract if awarded the work.
Late in the afternoon, Mrs. Johnson had a telephone conversation with Kenneth R. Hoon, an
estimator for defendant. He gave his name and telephone number and stated that he was bidding
for defendant for the paving work at the Monte Vista School according to plans and
specifications and that his bid was $7,131.60. At Mrs. Johnson's request he repeated his bid.
Plaintiff listened to the bid over an extension telephone in his office and posted it on the master
sheet after receiving the bid form from Mrs. Johnson. Defendant's was the lowest bid for the
paving. Plaintiff computed his own bid accordingly and submitted it with the name of defendant
as the subcontractor for the paving. When the bids were opened on July 28th, plaintiff's proved to
be the lowest, and he was awarded the contract.

On his way to Los Angeles the next morning plaintiff stopped at defendant's office. The
first person he met was defendant's ocnstruction engineer, Mr. Oppenheimer. Plaintiff testified: ‘I
introduced myself and he immediately told me that they had made a mistake in their bid to me
the night before, they couldn't do it for **759 the price they had bid, and I told him I would
expect him to carry through with their original bid because I had used it in compiling my bid and
the job was being awarded them. And I would have to go and do the job according to my bid and
I would expect them to do the same.’

Defendant refused to do the paving work for less than $15,000. Plaintiff testified that he
‘got figures from other people’ and after trying for several months to get as low a bid as possible
engaged L & H Paving Company, a firm in Lancaster, to do the work for $10,948.60.

12
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...
There is no evidence that defendant offered to make its bid irrevocable in exchange for
plaintiff's use of its figures in computing his bid. Nor is there evidence that would warrant
interpreting plaintiff's use of defendant's bid as the acceptance thereof, binding plaintiff, on
condition he received the main contract, to award the subcontract to defendant. In sum, there was
neither an option supported by consideration nor a bilateral contract binding on both parties.
Plaintiff contends, however, that he relied to his detriment on defendant's offer and that
defendant must therefore answer in damages for its refusal to perform. Thus the question is
squarely presented: Did plaintiff's reliance make defendant's offer irrevocable?

Section 90 of the Restatement of Contracts states: ‘A promise which the promisor should
reasonably expect to induce action or forbearance of a definite and substantial character on the
part of the promisee and which does induce such action or forbearance is binding if injustice can
be avoided only by enforcement of the promise.’ This rule applies in this state. Edmonds v.
County of Los Angeles, 40 Cal.2d 642, 255 P.2d 772; Frebank Co. v. White, 152 Cal.App.2d
522, 313 P.2d 633; Wade v. Markwell & Co., 118 Cal.App.2d 410, 258 P.2d 497, 37 A.L.R.2d
1363; West v. Hunt Foods Co., 101 Cal.App.2d 597, 225 P.2d 978; Hunter v. Sparling, 87
Cal.App.2d 711, 197 P.2d 807; see 18 Cal.Jur.2d 407-408; 5 Stan.L.Rev. 783.

Defendant's offer constituted a promise to perform on such conditions as were stated

expressly or by implication therein or annexed thereto by operation of law. (See 1 Williston,
Contracts (3rd. ed.), s 24A, p. 56, s 61, p. 196.) Defendant had reason to expect that if its bid
proved the lowest it would be used by plaintiff. It induced ‘action * * * of a definite and
substantial character on the part of the promisee.’
...
The absence of consideration is not fatal to the enforcement of such a promise. It is true
that in the case of unilateral contracts the Restatement finds consideration for the implied
subsidiary promise in the part performance of the bargained-for exchange, but its reference to
section 90 makes clear that consideration for such a promise is not always necessary. The very
purpose of section 90 is to make a promise binding even though there was no consideration ‘in
the sense of something that is bargained for and given in exchange.’ (See 1 Corbin, Contracts
634 et seq.)

Note. Traynor explained in a later decision,1 and other courts have held,2 that although the sub-
contractor is bound by the bid he submitted if the general contractor uses it, the general
contractor is not bound to that subcontractor. After receiving the contract, he may shop around to
see if he can obtain a lower bid from someone else.

III. The Law of Tort

1. The conduct that gives rise to liability

a. Liability for fault

1
Southern Calif. Acoustics Co. v. C.V. Holder, Inc., 456 P.2d 975 (Cal. 1969)(where, nevertheless, he held that the
general contractor was bound because of the provisions of a California statute).
2
Holman Erection Co. v. Orville E. Madsen & Sons, Inc., 330 N.W.2d 693 (Minn. 1983).

13
 14

James Gordley, Hao Jiang and Arthur von Mehren, An Introduction

to the Comparative Study of Private Law (2nd ed, 2021), 441. 443-46.

A fundamental idea in civil law and modern common law is that there are three distinct
grounds for holding a person liable in tort: he might have harmed someone intentionally, or
negligently, or by engaging in an activity for which he is strictly liable.
...
Until the nineteenth century, the common law did not draw these distinctions. [T]he
plaintiff had to bring his case within one of the recognized forms of action. If the defendant had
struck him, he could sue for trespass in assault and battery, if the plaintiff had entered his land he
could sue for trespass quare clausum fregit, and so forth). If the facts did not quite fit any of the
trespass actions, he could bring an action called trespass on the special case or trespass on the case.
He might do so, for example, if the plaintiff did not strike him but did something that caused him
to be physically injured. In trespass on the case, he would have to plead the special facts that, in
his view, entitled him to recover. Whether he could recover on these facts was up to the judges.
There is a long-standing debate over whether the plaintiff was liable in either type of action absent
fault. As Milsom and Fifoot have pointed out, the question is misleading because, traditionally, the
common lawyers did not clearly distinguish fault-based and strict liability.1 [=9]
If the plaintiff sued in one of the trespass actions, he did not need to allege fault. For example, he
might simply allege that the defendant shot him or struck him. The defendant might then “plead
the general issue” by answering with the set phrase “not guilty.” Or he might set up a defense by
making a special plea, in effect, admitting the trespass and offering some justification. It is hard to
tell whether either course of action would allow a defendant to escape liability if he was not at
fault in the sense in which civil lawyers or modern common lawyers understand fault. Suppose,
for example, that the defendant struck the plaintiff because his horse bolted, either because the
horse was high strung or because it was frightened by a flash of lightning or a third party or an
animal. If the defendant pled, “not guilty,” the jury was supposed to decide whether this allegation
was true or false, originally, without instructions from the judge as to what to consider. It is hard
to know what juries did.2 They may have found for the defendant if they believed that the bolting
of the horse that he was riding was really not something he did, that he was the passive instrument
of forces of nature, a third party, or the animal he was riding. Possibly, they did so if they believed
that he had not committed a trespass or wrong, whatever that might have meant to them. In the
trespass actions, the common law did not really have a rule in such cases but a procedure: let the
jury decide. The defendant’s other alternative was to plead, in justification, that he was not at fault.
It was not clear what would happen then. Defendants did so in only a few cases, and the remarks
of the judges are confusing and seem contradictory. Some judges said that the defendant was not

1
S.F.C. Milsom, Historical Foundations of the Common Law (1981), 392–8; C.H.S. Fifoot, History and Sources of
the Common Law Tort and Contract (1949), 189, 191.
2
Milsom, Historical Foundations of the Common Law, 393.

14
 15

liable if he had done his best,3 some said that he was,4 and some said he could escape liability if
his conduct were the product of “unavoidable necessity.”5 It is hard to know what these statements
meant to the judges who made them. They may not have been thinking in terms of a clear
distinction between fault-based and strict liability. For example, in Weaver v. Ward, when a
company of part-time soldiers were drilling with muskets, one soldier injured another because his
musket accidentally went off. He pleaded that it was not his fault. The court said that he would be
excused if he were “utterly without fault,” if the accident were “inevitable,” and if he “had
committed no negligence to give occasion to the hurt.”6 As Fifoot said of this case, “ ‘[f]ault,’
‘inevitable accident,’ ‘negligence’ are words used indiscriminately without reflection and almost
without meaning.”7 On account of these uncertainties, the plaintiff might sue, not in a trespass
action, but in trespass on the case and allege that the defendant acted negligently in his statement
of the facts that supposedly called for relief. Sometimes, the plaintiff did so.8 But even then, it is
not clear what the allegation meant.9 It might or might not mean negligence in the modern (or
ancient Roman) sense. Certainly, judges did not instruct the jury to ask themselves whether the
defendant had behaved like a reasonable person. In any event, the defendants also brought actions
of trespass on the case without alleging negligence.1018 In the nineteenth century, the forms of
action were abolished: the plaintiff could merely plead the facts that entitled him to recover without
naming a certain form of action. Supposedly, the substantive law remained the same: the plaintiff
could recover after the forms of action were abolished provided that he could have recovered under
one of them before they were abolished. In fact, the law changed a good deal. One of the changes
was the rise of what we now call an action in negligence. A first step was to hold that the plaintiff
could not recover for bodily injuries which the defendant caused accidentally and without
negligence. In the United States, this step was taken in Massachusetts in 1851 by Chief Justice
Shaw.11 In England, it was not taken until 1891.12 In the 1870s, some courts also held that a
defendant would not be liable for trespass to land if he acted neither intentionally nor negligently.13
As Prosser pointed out, it would be illogical not to take this step as well: it was “no great triumph
of reason” to hold that if a streetcar jumped its track, its operator was liable for injuring a pedestrian

3
E.g., The Thorns Case, Y.B. Mich. 6 Ed. 4, f. 7, pl. 18 (1466) (Choke, C.J.: “As to what has been said that they
[thorns] fell ipso invito [on another’s land], this is not agood plea; but he should have said that he could not do it in
any other manner or that he did all that was in his power to keep them out”); Millen v. Fandrye Popham 161 (1626)
(defendant excused because he has “done his best endeavor”); Wakeman v. Robinson, 1 Bing. 213 (1823) (Dallas,
C.J.: “If the accident happened entirely without default on the part of the defendant or blame imputable to him, the
action does not lie”).
4
The Thorns Case, Y.B. Mich. 6 Ed. 4, f. 7, pl. 18 (1466) (Littleton, J.: “If a man suffers damage, it is right that he be
recompensed.”); Bessey v. Olliot, Sir T. Raym. 421, 467 (1682) (Sir Thomas Raymond: “in all civil acts the law doth
not so much regard the intent of the actor as the loss and damage of the party suffering”); Leame v. Bray, 3 East. 593
(1803) (Grose, J.: “if the injury be done by the act of the party himself at the time or he be the immediate cause of it,
though it happen accidentally or by misfortune, yet he is answerable in trespass”).
5
Dickenson v. Watson, Sir T. Jones 205 (1682) (defendant who had shot the plaintiff and pleaded accident not excused
“for in trespass the defendant shall not be excused without unavoidable necessity”).
6
Weaver v. Ward, Hobart 134 (1616).
7
Fifoot, History and Sources of the Common Law, 191.
8
Milsom, Historical Foundations of the Common Law, 394.
9
Ibid. 399; A.I. Ogus, “Vagaries in Liability for the Escape of Fire,” Cambridge Law Journal 27 (1969), 104, 105–6.
10
Ibid. 394.
11
60 Mass. 292 (1850).
12
Stanley v. Powell, 1 Q.B. 86 (1891).
13
See River Wear Commissioners v. Adamson [1877] 2 App. Cas. 743, 751, in which Lord Cairns said that one was
liable at common law for “damage occasioned by wilful or negligent misconduct” as distinguished from “act of God.”

15
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if he was negligent, but that he was liable, negligent or not, for injuring the plate glass window
behind the pedestrian.14 In his first edition, written in 1941, Prosser could
only say that “indications are” that the old rule for trespass to land “is undergoing modification.”
The indications he cited were the first Restatement of Torts and four cases, three of them decided
in the 1870s.15 Having recognized a tort of “negligence,” Americans concluded that the defendant
must have acted intentionally to be liable in one of the trespass actions such as battery. As we have
seen, in England, in 1965, Lord Denning took that position, although there is still a dispute over
whether he was right.16 English courts agree, however, that the defendant is not liable for
committing these torts if he acted neither intentionally nor negligently.17

The common law courts also recognized that in certain cases the defendant was liable
without fault. The first case was Rylands v. Fletcher,18 in which the owner of a reservoir was held
liable without fault when the water escaped. The case was followed in the United States where
eventually the principle was said to be that the defendant is liable for carrying on abnormally
dangerous activities.

b. Strict Liability

Fletcher v. Rylands,
(1866) L.R. 1 Ex. 265

The defendant built a reservoir on his land unaware that it had once beenmined for coal
and ancient shafts still lay under the ground. Because of the shafts, the water in the reservoir
escaped and flooded the plaintiff’s land. Blackburn, J. “We think that the true rule of law is, that
the person who for his own purposes brings on his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima
facie answerable for all the damage which is the natural consequence of its escape. He can excuse
himself by shewing that the escape was owing to the plaintiff’s default; or perhaps
that the escape was the consequence of vis major, or the act of God; but as nothing of this sort
exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above
stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle
of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose
cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by
the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of
his own; and it seems but reasonable and just that the neighbour, who has brought something on
his own property which was not naturally there, harmless to others so long as it is confined to his
own property, but which he knows to be mischievous if it gets on his neighbour’s, should be

14
William L. Prosser, Handbook of the Law of Torts (1941), 77–8.
15
Ibid., citing Nitro-Glycerine Case, Parrott v. Wells Fargo & Co., 15 Wall 524 (U.S. Sup. Ct. 1872), 21 L. Ed. 206;
Brown v. Collins, 53 N.H. 442 (1873); Losee v. Buchanon, 51 N.Y. 476 (1873); and cf. Dobrowolski v. Penn. R. Co.,
178 A. 488 (Pa. 1935).
16
[1965] 1 QB 232.
17
In Stanley v. Powell [1891] 1 Q.B. 86; Fowler v. Lanning [1959] 1 Q.B. 156.
18
[1826] L.R. 3 H.L. 330. Thus by the twentieth century, the common law had recognized the same three grounds for
liability as the civil law had recognized for centuries.

16
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obliged to make good the damage which ensues if he does not succeed in confining it to his own
property. But for his act in bringing it there no mischief could have accrued, and it seems but just
that he should at his peril keep it there so that no mischief may accrue, or answer for the natural
and anticipated consequences. And upon authority, this we think is established to be the law
whether the things so brought be beasts, or water, or filth, or stenches. The case that has most
commonly occurred, and which is most frequently to be found in the books, is as to the obligation
of the owner of cattle which he has brought on his land, to prevent their escaping and doing
mischief. The law as to them seems to be perfectly well settled from early times; the owner must
keep them at his peril . . . .”

Rylands v. Fletcher,
[1868] L.R. 3 H.L. 330

Cairns, L.C. “My Lords, the principles on which this case must be determined appear to me to be
extremely simple. The Defendants, treating them as the owners or occupiers of the close on which
the reservoir was constructed, might lawfully have used that close for any purpose for which it
might in the ordinary course of the enjoyment of land be used, and if, in what I may term the
natural use of that land, there had been any accumulation of water, either on the surface or
underground, and if, by the operation of the laws of nature, that accumulation of water had passed
off into the close occupied by the Plaintiff, the Plaintiff could not have complained that that result
had taken place. If he had desired to guard himself against it, it would have lain upon him to have
done so, by leaving, or by interposing, some barrier between his close and the close of the
Defendants in order to have prevented the operation of the law of nature . . . On the other hand if
the Defendants, not stopping at the natural use of their close, had desired to use it for any purpose
which I may term a nonnatural use, for the purpose of introducing into the close that which in its
natural condition was not in or upon it, for the purpose of introducing water either above or below
ground in quantities and in a manner not the result of any work or operation on or under the land,
and if in consequence of their doing so, or in consequence of any imperfection in the mode of their
doing so, the water came to escape and to pass off into the close of the Plaintiff, then it appears to
me that that which the Defendants were doing they were doing at their own peril . . . .”

Sir Frederick Pollock, The Law of Torts A Treatise on the Principles of Obligations
Arising from Civil Wrongs in Common Law (7th ed. 1904), 17-18.

[W]e find that the Roman conception of delict agrees very well with the conceptions that appears
really to underlie the English law of tort. Liability for delict, or civil wrong in the strict sense, is
a result of willful injury to others or wanton disregard of what is due to them (dolus) or of a failure
to observe due care and caution which has similar though not intended or expected consequences
(culpa). In the Common Law we have … an exceptionally stringent rule in certain cases where
liability is attached to the befalling of harm without proof of either intention or negligence…. Such
is the case of a landowner who keeps on his land an artificial reservoir of water if the reservoir
bursts and floods the lands of his neighbors. Not that it was wrong of him to have a reservoir there
but the law says that he must do so at his own risk. [citing Rylands v. Fletcher] This liability, too,
has its parallel in Roman law, and the obligation is said to be, not ex delicto, since true delict
involves either dolus or culpa, but quasi-ex delicto. Whether to avoid the difficulty of proving
negligence, or to sharpen men’s precaution in hazardous matters by not even allowing them when

17
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the harm is once done to prove that they have been diligent, the mere fact of the mischief happening
gives birth to the obligation.

Restatement (Second) of Torts § 519

f(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the activity, although he has exercised the utmost
care to prevent the harm.
Reporter's Note

Typical abnormally dangerous activities, under the rule stated in this Section, include:

Water collected in quantity in unsuitable or dangerous place: Rylands v. Fletcher, L.R. 3 H.L. 330
(1868); Baltimore Breweries Co. v. Ranstead, 78 Md. 501, 28 A. 273 (1894); Wilson v. City of
New Bedford, 108 Mass. 261 (1871); Smith v. Chippewa County Road Comm'rs, 5 Mich.App.
370, 146 N.W.2d 702 (1966); Bridgeman-Russell Co. v. City of Duluth, 158 Minn. 509, 197 N.W.
971 (1924); Filtrol Corp. v. Hughes, 199 Miss. 10, 23 So.2d 891 (1945); Defiance Water Co. v.
Olinger, 54 Ohio St. 532, 44 N.E. 238 (1896); cf. Kennecott Copper Corp. v. McDowell, 100 Ariz.
276, 413 P.2d 749 (1966) (stream diverted against bridge); Green Reservoir Flood Control Dist. v.
Willmoth, 15 Ariz.App. 406, 489 P.2d 69 (1971) (break in canal).

Explosives in quantity in a dangerous place: Exner v. Sherman Power Constr. Co., 54 F.2d 510 (2
Cir.1931); French v. Center Creek Powder Mfg. Co., 173 Mo.App. 220, 158 S.W. 723
(1913); Bradford Glycerine Co. v. St. Mary Woolen Mfg. Co, 60 Ohio St. 560, 54 N.E. 528 (1899);
cf. Koster & Wythe v. Massey, 293 F.2d 922 (9 Cir.1961) (incendiary bomb); Langlois v. Allied
Chem. Corp., 258 La. 1067, 249 So.2d 133 (1971) (poisonous gas).

Inflammable liquids in quantity in the midst of a city: Brennan Constr. Co. v. Cumberland, 29
App.D.C. 554 (1907); MacKenzie v. Fitchburg Paper Co., 351 Mass. 292, 218 N.E.2d 579
(1966); Berger v. Minneapolis Gaslight Co., 60 Minn. 296, 62 N.W. 336 (1895); cf. Yommer v.
McKenzie, 255 Md. 220, 257 A.2d 138 (1969).
Blasting, in the midst of a city: Colton v. Onderdonk, 69 Cal. 155, 10 P. 395 (1886); Catholic
Welfare Guild, Inc. v. Brodney Corp., 58 Del. (8 Storey) 246, 208 A.2d 301 (1964); Central
Exploration Co. v. Gray, 219 Miss. 757, 70 So.2d 33 (1954); Britton v. Harrison Constr. Co., 87
F.Supp. 405 (S.D.W.Va.1948); Brown v. L.S. Lunder Constr. Co., 240 Wis. 122, 2 N.W.2d 859
(1942).

Pile driving, with abnormal risk to surroundings: Caporale v. C.W. Blakeslee & Sons, Inc., 149
Conn. 79, 175 A.2d 561 (1961); D'Albora v. Tulane Univ., 274 So.2d 825 (La.App.1973), writ
denied, 278 So.2d 504, and 278 So.2d 505; Lowry Hill Properties, Inc. v. Ashbach Constr. Co.,
291 Minn. 429, 194 N.W.2d 767 (1971).

Release into air of poisonous gas or dust: Luthringer v. Moore, 31 Cal.2d 489, 190 P.2d 1
(1948) (fumigation with cyanide gas); Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957), appeal
transferred, 80 So.2d 578 (crop dusting); Dutton v. Rocky Mt. Phosphates, 151 Mont. 54, 438 P.2d

18
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674 (1968) (fluorine); Young v. Darter, 363 P.2d 829 (Okla.1961) (herbicide spray); Loe v.
Lenhardt, 227 Or. 242, 362 P.2d 312 (1961) (crop dusting).

Drilling oil wells or operating refineries in thickly settled communities: Green v. General
Petroleum Corp., 205 Cal. 328, 270 P. 952 (1928); Niagara Oil Co. v. Jackson, 48 Ind.App. 238,
91 N.E. 825 (1910); Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934), rehearing
denied, 141 Kan. 6, 40 P.2d 359 (1935).

Cambridge Water Co Ltd v. Eastern Counties Leather plc.,

[1994] 2 AC 264 (H.L.)

The defendant was an old-established leather manufacturer which used a chemical solvent
in its tanning process. In the course of the process there were regular spillages of relatively small
amounts of the solvent onto the concrete floor of the tannery prior to a change of method in 1971,
the total spillage over a period of years being at least 1,000 gallons. The spilled solvent, which was
not readily soluble in water, seeped through the tannery floor into the soil below until it reached
an impermeable strata 50 metres below the surface from where it percolated along a plume at the
rate of about 8 metres a day until it reached the strata from which the plaintiffs extracted water for
domestic use via a borehole. The distance between the plaintiffs’ borehole and the defendants’
tannery was 173 miles and time taken for the solvent to seep from the tannery to the borehole was
about 9 months.”

The court held that the plaintiff could not recover either in nuisance or under the rule in
Rylands v. Fletcher unless the defendant could have foreseen that its activity might cause the harm
the plaintiff suffered. In reaching his conclusion, however, Lord Goff reconsidered the foundations
and the scope of the rule in Rylands v. Fletcher.

Lord Goff of Chieveley. In order to consider the question in the present case in its proper
legal context, it is desirable to look at the nature of liability in a case such as the present in relation
both to the law of nuisance and the rule in Rylands v. Fletcher, and for that purpose to consider the
relationship between the two heads of liability.

I begin with the law of nuisance. Our modern understanding of the nature and scope of the
law of nuisance was much enhanced by Professor Newark’s seminal article ‘The boundaries of
nuisance’ (1949) 65 LQR 480 . . . Professor Newark considered (at pp 487–488) [that there had
been] a misappreciation of the decision in Rylands v. Fletcher:‘This case is generally regarded as
an important landmark, indeed a turning point – in the law of tort; but an examination of the
judgments shows that those who decided it were quite unconscious of any revolutionary or
reactionary principles implicit in the decision. They thought of it as calling for no more than a
restatement of settled principles, and Lord Cairns went so far as to describe those principles as
‘extremely simple’. And in fact the main principle involved was extremely simple, being no more
than the principle that negligence is not an element in the tort of nuisance. It is true that Blackburn
J. in his great judgment in the Exchequer Chamber never once used the word ‘nuisance’, but three
times he cited the case of fumes escaping from an alkali works – a clear case of nuisance – as an
instance of liability, under the rule which he was laying down. Equally it is true that in 1866 there
were a number of cases in the reports suggesting that persons who controlled dangerous things

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were under a strict duty to take care, but as none of these cases had anything to do with nuisance
Blackburn J. did not refer to them. But the profession as a whole, whose conceptions of the
boundaries of nuisance were now becoming fogged, failed to see in Rylands v. Fletcher a simple
case of nuisance. They regarded it as an exceptional case – and the rule in Rylands v. Fletcher as a
generalisation of exceptional cases, where liability was to be strict on account of ‘the magnitude
of danger, coupled with the difficulty of proving negligence’ [Pollock on Torts (14th edn, 1939) p.
386] rather than on account of the nature of the plaintiff’s interest which was invaded. They
therefore jumped rashly to two conclusions: firstly, that the rule in Rylands v. Fletcher could be
extended beyond the case of neighbouring occupiers; and secondly, that the rule could be used to
afford a remedy in cases of personal injury.
...

We are not concerned in the present case with the problem of personal injuries, but we are
concerned with the scope of liability in nuisance and in Rylands v. Fletcher. In my opinion it is
right to take as our starting point the fact that, as Professor Newark considered, Rylands v. Fletcher
was indeed not regarded by Blackburn J. as a revolutionary decision . . . [T]he essential basis of
liability was the collection by the defendant of such things upon his land; and the consequence was
a strict liability in the event of damage caused by their escape, even if the escape was an isolated
event. Seen in its context, there is no reason to suppose that Blackburn J. intended to create a
liability anymore strict than that created by the law of nuisance; but even so he must have intended
that, in the circumstances specified by him, there should be liability for damage resulting from an
isolated escape.
...

It is against this background that it is necessary to consider the question whether

foreseeability of harm of the relevant type is an essential element of liability either in nuisance or
under the rule in Rylands v. Fletcher. I shall take first the case of nuisance.”

Lord Goff concludes that foreseeability of the relevant type of harm is, indeed, required for
liability in nuisance. He argues that “the historical connection with the law of nuisance must now
be regarded as pointing towards the conclusion that foreseeability of damage is a prerequisite of
the recovery of damages under the rule” in Rylands v. Fletcher.

Even so, the question cannot be considered solely as a matter of history. It can be argued
that the rule in Rylands v. Fletcher should not be regarded simply as an extension of the law of
nuisance, but should rather be treated as a developing principle of strict liability from which can
be derived a general rule of strict liability for damage caused by ultra-hazardous operations, on the
basis of which persons conducting such operations may properly be held strictly liable for the
extraordinary risk to others involved in such operations. As is pointed out in Fleming on Torts (8th
edn, 1992) pp. 327–328, this would lead to the practical result that the cost of damage resulting
from such operations would have to be absorbed as part of the overheads of the relevant business
rather than be borne (where there is no negligence) by the injured person or his insurers, or even
by the community at large. Such a development appears to have been taking place in the United
States, as can be seen from§ 519 of the Restatement of Torts (2d) vol 3 (1977). The extent to which
it has done so is not altogether clear; and I infer from para 519, and the comment on that paragraph,

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that the abnormally dangerous activities there referred to are such that their ability to cause harm
would be obvious to any reasonable person who carried them on.

I have to say, however, that there are serious obstacles in the way of the development of
the rule in Rylands v. Fletcher in this way. … [T]here is much to be said for the view that the courts
should not be proceeding down the path of developing such a general theory. In this connection, I
refer in particular to the Report of the Law Commission on Civil Liability for Dangerous Things
and Activities (Law Com no 32) 1970. In paras 14–16 of the report the Law Commission expressed
serious misgivings about the adoption of any test for the application of strict liability involving a
general concept of ‘especially dangerous’ or ‘ultra-hazardous’ activity, having regard to the
uncertainties and practical difficulties of its application. If the Law Commission is unwilling to
consider statutory reform on this basis, it must follow that judges should if anything be even more
reluctant to proceed down that path. Like the judge in the present case, I incline to the opinion that,
as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be
imposed by Parliament, than by the courts. If such liability is imposed by statute, the relevant
activities can be identified, and those concerned can know where they stand. Furthermore, statute
can where appropriate lay down precise criteria establishing the incidence and scope of such
liability.

Edwin Peel and James Goudkamp, Winfield and Jolowicz on Tort

(19th ed., 2014), 499, 501, 503

Approaches to strict lability like the one in Cambridge Water Co. “are subject to the
objection that they would leave without redress (except in so far provided by the law of nuisance)
any persons suffering from an activity which was not the subject of legislation . . . If there is a
regime of strict liability for a burst watermain, why should the victim of a gas explosion be in any
different position? . . . The absence of a ‘general clause’ on strict liability may hamper the courts
in fairly allocating responsibility . . . Nevertheless, the introduction of such a general clause would
present formidable problems of uncertainty in its relationship with the fault regime.

Over the years Rylands v. Fletcher has been applied (or said to apply, because the cases
sometimes turned on other points) to a remarkable variety of things: fire; gas; blasting and
munitions; electricity; oil and petrol; noxious fumes; colliery spoil; rusty wire from a decayed
fence; vibrations; poisonous vegetation; a flag pole; a ‘chair-o-plane’ in a fairground; and even (in
a case of very questionable validity) noxious persons. Given the emphasis in the Cambridge Water
case on the close connection with the law of nuisance and the rejection of a broad rule governing
ultrahazardous activities there is probably now little point in seeking to identify the characteristics
of a ‘Rylands v. Fletcher object’. What matters is the scale of risk presented by the defendant’s
activity: a box of matches or a glass of water do not fall within the rule, a million boxes of matches
in a store or a reservoir may do so. The requirement that the thing must be likely to do mischief if
it escapes cannot therefore be viewed in isolation from the further requirement of a non-natural
user, which encapsulates the rule.

The defendant need not have an interest in the land from which the escape emanates. The
rule is not confined to the case where the defendant is the freeholder of the land . . . [T]he rule has
been applied in cases where the defendant has a franchise or statutory right, for example to lay

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pipes to carry gas or cables for electricity. Indeed, there are statements to the effect that anyone
who collects the dangerous thing and has control of it at the time of the escape would be liable,
even when it is being carried on the highway and escapes therefrom . . .

The claimant must have an interest in the land. As to the position of the claimant, the
position is governed by the fact that the rule is an offshoot or variety of private nuisance . . . A
number of earlier cases applying Rylands v. Fletcher should therefore be regarded as wrongly
decided on this basis alone.

2. The scope of liability

James Gordley, Hao Jiang and Arthur von Mehren, Introduction

to the Comparative Study of Private Law (2nd ed. 2021),

Common lawyers … ask whether the defendant committed a particular tort for which
common law courts give relief. One of these torts is “negligence.” The defendant is liable if he
negligently harmed the person or property of the plaintiff. “Negligence” was recognized as a
distinct tort only in the nineteenth century. Before that, the defendant would sue in “trespass” if he
had been injured in a straightforward manner: for example, if the defendant had struck him or
carried off his goods. For injuries done in a less straightforward way (as some put it, for injuries
done “indirectly” rather than “directly”), the plaintiff had to bring an action called “trespass on the
case.” Instead of just claiming that the defendant struck him or came on his land, he alleged
particular facts that entitled him to relief. Trespass was actually a family of actions which today
are recognized as particular torts. Americans usually describe them as “intentional torts” and say
that to be liable, the defendant must have acted intentionally. If he acted negligently, he should be
sued in “negligence.” In England, that view was taken by Lord Denning who said that the
distinction between actions in trespass for direct injury and in trespass on the case for indirect
injury have been superseded by one in trespass for intentional and negligent injury for negligence.1
The House of Lords has not yet said whether it agrees, and English writers have different opinions.
Some think that the defendant is liable in trespass if the contact was “direct” whether he acted
intentionally or negligently.2 The English do agree that the defendant is not liable for committing
these torts if he acted neither intentionally nor negligently.3

Here is a brief list of some of the torts which the common law courts have traditionally
recognized as actionable in trespass together with a description of when the plaintiff could recover
in modern English and American law.

1
[1965] 1 QB 232.
2
Compare W.V.H. Rogers, Winfield and Jolowicz on Tort (15th edn., 1998), 83–4 (favorable) with R.E.V. Heuston
and R.A. Buckley, Salmond and Heuston on the Law of Torts (21st edn., 1996), 136–7 (critical).
3
. In Stanley v. Powell, [1891] 1 Q.B. 86, the plaintiff claimed that the defendant was negligent, and the jury found
that he was not. The court said that the absence of negligence was a defense in an action of battery, and that the
defendant should prevail since the jury verdict established that he was not negligent. In Fowler v. Lanning, [1959] 1
Q.B. 156, the plaintiff merely alleged that “the defendant shot the plaintiff.” The court held that the defendant had the
burden of proving either intention or negligence. It was decided even earlier that the defendant is not liable for trespass
to land if his entry was neither intentional nor negligent. River Wear Commissioners v. Adamson, [1877] 2 App. Cas.
743.

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Trespass in Assault and Battery

Today we speak of two torts, battery and assault. In either case, the defendant is liable even
if he did no harm although then the damages may be nominal. To be liable for battery, he must
make contact with the body of the plaintiff or something closely associated with the body such as
a cane or a glass the plaintiff is holding. The contact must not be one that would normally be
presumed to be acceptable. Thus the defendant is liable if he bashes the defendant on the head, or
if he merely tweaks his nose or spits on him, but not if he merely taps the plaintiff on the shoulder
to ask him the time. Americans generally agree that the defendant is liable for battery whether or
not the contact was “direct.” Thus the plaintiff can recover if the defendant poisons his drink or
puts filth on a towel so that the plaintiff will rub it on himself.4 Some English authors think that
direct contact “may” still be required so that the defendant would not be liable for battery in these
cases.

To be liable for assault, the defendant must have done something that led the plaintiff to
believe he may imminently be the victim of a battery. It is an assault to point a gun or throw a rock
at someone. The plaintiff need not be put in fear but he must think that contact is about to occur.
He cannot recover if his back was turned when the defendant shot at him, and he did not realize
what was happening until the defendant was disarmed. He can recover if he sees the defendant is
about to squirt him with a water pistol. The contact must be expected imminently: the plaintiff can
recover if the defendant swings a fist at him but not if the defendant threatens to break his legs
next week.

False Imprisonment

The defendant is liable if he confined the plaintiff. The confinement may be in any space,
large or small, and it does not matter how it is effected, by force or threats or fraud. The defendant
is liable even if he mistakenly but reasonably thought he had the right to confine the plaintiff.

Trespass Quare Clausum Fregit

Today known as trespass to land. The defendant must enter, or cause something to enter,
land in plaintiff’s possession. He need not know that the land belongs to the plaintiff and he is
liable even if he believes it belongs to himself. A trespasser is liable even if he did no harm although
then only nominal damages may be awarded.

Trespass De Bonis Asportatis

Today known as trespass to chattels. The defendant must physically interfere with
plaintiff’s goods, for example, by damaging them or carrying them off. Again, he is liable even if
he thought they were his own.

4
Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, Hornbook on Torts (2nd ed., 2016), 67–8.

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As we will see, English and American courts have added to the list by recognizing new
torts. But to recover, the plaintiff still hasto identify a particular tort which the defendant
committed.

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