The Development of the Concept of Contributory Negligence in Civil and Common Law: A Comparison

Abstract

The injured party’s own conduct contributing to the damage suffered has been a bar to the recovery of damages in delictual liability for centuries, both in the traditions of civil as well as common law. This article describes and compares the historical development, from (classical) Roman law up to French, German and Dutch law in the beginning of the 20th century, of the method with which cases involving the behaviour of the injured party contributed to the occurrence of damage — nowadays called ‘contributory negligence’, with the English common law tradition from the medieval period until the Law Reform (Contributory Negligence) Act of 1945. In both the civil and the common law traditions, the result of ‘contributory negligence’ was the same — all or nothing. Solutions found in civil and common law to deal with the contributory conduct of the injured party are not very different. There might have been remarkable similarities in the way one solved this issue before a concept of contributory negligence existed. Furthermore, whilst the official introduction of the partition of damages as a result of contributory negligence came later in common law than in civil law, early signs of the adoption of this principle can be also be found in 19th century common law.