Accidental Harm Under (Roman) Civil Law

Abstract

A leading idea under Roman private law and nearly all European legal systems is that an owner has to bear the risk of an accidental loss (casus). An accident is a circumstance for which a third party cannot be blamed (culpa or fault). A person suffering damage from an accident had to bear that damage himself. This idea has been subject to attack throughout history. Every once in a while, it is said that ‘bad luck must be righted’ (‘pech moet weg’). This position has not become the prevailing viewpoint among lawyers. Although it does not seem very realistic, ‘bad luck must be righted’ did form the basis of social security policies of the Netherlands and some other western countries after World War II: social security ‘from womb to tomb’. The scope of social security benefits has been reduced in many countries in the last decades of the twentieth century, because the costs were no longer affordable. The idea that a owner has to bear the risk of casus has withstood the test of time quite well. That accidental harm must be borne by the one suffering it, is legally and morally justifiable.