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On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Fundamina (Pretoria) vol.22 n.1 Pretoria  2016 



Van Dongen, EGD: Contributory negligence - A historical and comparative study



(Brill, Leiden/Boston, 2014, 476pp (including preface and indices)

ISBN 9789004278714, £133.00 (Amazon UK))

This interesting study is concerned with one of those perennial problems of the civilian tradition, namely the rise of "contributory negligence" in cases of delict. Van Dongen traces the history of this notion from Roman to contemporary law. The book is divided into six chapters. Chapter 1 contains an introduction in which the main topic of study, the method adopted and the structure are all set out. Diachronic studies of an aspect of legal history are tricky and the method and scope sections are well worth reading. The author does a good job of limiting and justifying the choices made further on in the volume. It is particularly interesting to see the comments about Roman law and how one should not merely see it as the starting point in a long line of development.

Chapter 2 is devoted to Roman law. The author sets out the main texts and their interpretations (many from the realm of Aquilian liability) and addresses the absence of any notion of contributory negligence as such in Roman law. This is a very useful chapter to anyone interested in Aquilian liability more generally and the author gives a good account of the primary and secondary literature.

Chapter 3 tackles the second life of contributory negligence in the medieval ius commune. Of all the chapters in the book, this is perhaps the strongest and contains the most valuable material. It is interesting to note that the author has gone beyond the printed works and has also investigated manuscripts, a welcome change to many works on medieval learned law. The author's account of the complexities of this topic in medieval learned law is both useful and clear. A chapter such as this also demonstrates why it is so important, from the perspective of modern law, also to give proper attention to the medieval legal developments in their own right.

Chapter 4 is concerned with the early modern period. Here we find various subdivisions such as Legal Humanism, Roman-Dutch law, the Usus Modernus and the Northern Natural Law School. The author proceeds to investigate each of these "schools" and their contribution to the development of the topic. One slight criticism here is that the author is perhaps too accepting of the labels of the different "schools" and their contribution to modern law. Thus, for example, separating Roman-Dutch law out from Humanism and the Usus Modernus is perhaps somewhat of a falsehood, since many of the main Dutch jurists of this period were in fact both (or either). Nonetheless, there are some interesting points arising from this discussion, especially in relation to Roman-Dutch law, and the reader would be well advised to spend some time on them. I did wonder, though, whether there could also be an economic angle here to be explored perhaps in further works on the topic, especially given the importance of mercantile commerce in the Dutch Republic.

Chapter 5 is devoted to contemporary law (mainly France and the Netherlands) while chapter 6 deals with conclusions. All and all, this is an interesting study filled with many nuggets of insight. The author is to be commended for producing such a clear work on a difficult topic. The writing is of the highest quality and the arguments are persuasive. This then brings me to the one and only negative point in this review - the price. Once again, Brill has managed to make a very useful book virtually unaffordable to anyone other than a research library. It is incomprehensible that a Press that has jettisoned all forms of proofing and copy-editing (and therefore quality control) over their output can justify a price at this level. The same book of the same size would have cost much less through some of the Presses that still retain proofing and copy-editing. This is lamentable. Authors do not have the skills to copy edit a book. It is a professional skill that costs money (as the acknowledgements to this book make clear). The Press runs a very great risk of pricing itself out of the market to those who do not have the institutional funding for this kind of endeavour. This "stack 'em high and sell 'em dear" insanity has to stop.


Dr Paul J du Plessis

University of Edinburgh

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