Tort

The composition of civil law tort, as well as the types of responsibility for them, are different in different periods of history and in different laws. At the beginning of the development of law, the area of ​​tort law coincided with the entire area of ​​law, since criminal and civil offenses were equally punished with fines in favor of the victim, without other consequences. Further development consists in the gradual separation, on the one hand, of criminal offenses subject to public penalties, and on the other hand, civil offenses not subject to fines at all. As a significant difference between a tort and a criminal offense in Roman legal science L.V. Voitovich, I.V. Sergeyev is emphasized that he meant “punishment of a person at the initiative of the victim”, while the criminal prosecution came from the state and “implied a violation affecting the whole society” ^[1] . The area of ​​tort law becomes a mediating area between the two: private punishment appears where criminal penalties are insufficient to satisfy the victim’s revenge or it is necessary to cover the harm caused by the crime, and where relations between the parties are not so defined in the sense of a purely civil legal, that offenses could not be rewarded through private law suits.

In the field of Roman law, this process of development was imprinted with particular visibility. A whole series of our criminal crimes (robbery, theft, etc.) for a long time did not go out of the tort order of recovery; on the other hand, a whole series of civil law, in modern and later Roman law of purely contractual relations, found protection only through tort claims. With particular skill, Roman lawyers developed two of them: a. de dolo and a. injuriarum, which they used to protect many relationships that were not part of criminal or purely civil law. The system of Roman tort law remained, however, far from complete. Roman law did not work out a general concept of civil tort. It knew only certain types of tort, which were widely spread through interpretation, but still left a significant number of relations without protection. Modern law goes much further. The concept of private law tort in his hands is a common means to compensation for property and non-property damage caused by unlawful actions of persons and not covered by criminal and civil penalties.

It is also not worth identifying the concept of “tort” in its general sense and the concept of “private tort”. The first concept is much broader and includes, among other things, a range of offenses “harmful to the state”. Private tort, in turn, is limited only to those compositions where harm is done by one private person to another. The possibility of participation of the subject in tort legal relations was called, as well as in modern civil law, tort. The latter implied by itself "the ability of the subject to bear civil liability for harm caused by his actions." Under Roman law, the ability to bear civil liability for contractual obligations occurred in men - from 14 years old, in women - from 12. ^[1]

The main instrument of fulfillment of obligations in ancient Rome, as in many states of that period, was private revenge. I.V. Sergeev notes that "unlike most other European states, the Romans private revenge was not only at a higher level of development, but also partially enshrined in law." For the most part, such rules apply to the provisions of Law XII of the tables. At later stages of the development of the institution of fulfillment of obligations, an attempt is made by the Roman legislator to switch from private revenge to more civilized ways of fulfilling obligations. A similar step was made by introducing "compositions", i.e. “fines paid by the offender in favor of the victim in order to restore justice and compensate for the harm done without resorting to private revenge.” However, archaic law still suggested other ways of redress. For example, the principle of “talions” was actively applied to compensate for grievances. Its specificity consisted in the fact that “it provided for the same harm to the offender by the victim as was inflicted on him.” Subsequently, over time, revenge was completely replaced by monetary fines, which, at the same time, there was a guarantee of the victim's rights to receive compensation for harm that came from the state. The Institute for Compensation of Damages received further development, which was expressed by improving the mechanism of compensation for harm. For example, a provision has appeared that indicates the possibility of compensation for harm by a third party. ^[2]

According to L.V. Voitovich, I.V. Sergeeva, "the basis of Russian tort law, by analogy with Roman law, is laid the key condition for the onset of tort liability - a deliberate intention to cause loss, the presence of intent." It is important to note here that under Russian civil law, for a person to be charged with a civil offense, it was necessary to have a natural ability to express his will. That is, a minor, a person deprived of reason could not be found guilty of such offenses, therefore the responsibility was assigned to their legal representative. ^[3]

The rules governing liability resulting from harm in Russia in the second half of the XIX century. - beginning of XX century. For the most part were established by the Law of March 21, 1851. The said Law was divided into three parts: the first - regulated the responsibility of the receivers of runaway serfs and a number of special issues relating to legal relations between landowners and serfs; the second - determined the possession of legal and illegal; the third part is of the greatest interest for the study, since it was devoted directly to the issue of compensation for harm of a private nature. In turn, the third part was divided into four sections: “on remuneration for the ownership of other people's property”; “On compensation for harm and losses caused by a crime or misconduct”; “On compensation for harm and loss resulting from acts not recognized as crimes and misconduct”; additional articles. ^[four]

In terms of tort as a result of property damage, the concept of loss occupied a key place. It was of a dual nature and included property loss and lost profits. Property loss was understood as damage to a thing, as a result of which caused a decrease in its value. Loss of profits was understood as the loss of income that the owner of the damaged property could extract from it. The definition of this difference was new for domestic jurisprudence and allowed a fundamentally new look at the very essence of harm. ^[3]

Torts of a non-property nature included unlawful acts causing moral harm. These institutes were developed in the domestic legislation of the period under review much worse. On this occasion, I.V. Sergeev states: "the importance of the institution of compensation for moral damage was not recognized by the legislator. In the Code of Civil Laws there were practically no norms that were the basis for the onset of tort liability without a property component." The author adheres to the hypothesis that compensation for moral suffering was the difference in real losses and the compensation awarded by the court. In support of this point of view, the author cites the fact that the provisions of the Code of Civil Laws did not indicate the maximum amount of remuneration awarded to the victim. In view of this, the court could award a compensation amount exceeding the real value of the damaged item. Such a difference in real loss and assigned remuneration compensated for the moral suffering of the victim. ^[5]

The subsequent development of tort law in Russia was due to a rethinking of some of its provisions in the process of preparing the draft new civil code, which lost its relevance until it was immediately adopted due to the serious socio-political changes caused by the First World War. The war served as a prerequisite for rethinking the conceptual foundations of the institution of tort liability, for example, the grounds for its offensive, the concepts of “force majeure” and “impossibility to fulfill obligations”. ^[6]

• Delinquent

• Agarkov M.M. Obligations from harm: (Current law and objectives of the Civil Code of the USSR) // Agarkov M.M. Selected works on civil law: In 2 vol. T. 2: General doctrine of obligations and its individual types. M., 2012.
• Alekseev S.S. On the composition of the civil offense // Jurisprudence. 1958. No. 1.
• Antimonov B.S. The value of the guilt of the victim in a civil offense. M., 1950.
• Voitovich L.V., Sergeev I.V. Features of the institute of tort liability in Roman private law // Jurisprudence: problem and prospects: materials of the III international scientific and practical conference (Kazan, May 2015). - Kazan: Buk, 2015 .-- S. 10-12.
• Voitovich L.V., Sergeev I.V. The formation and general characteristics of the institution of liability due to harm in Russian law of the II half of the XIX century. - beginning of XX century // Leningrad Law Journal. - No. 3 (41), 2015 .-- S. 17 - 27.
• Voitovich L.V., Sergeev I.V. Transformation of the Institute of tort liability in connection with the First World War // Law and Education. - No. 10, 2016. - S. 149-158.
• Voitovich L.V., Sergeev I.V. Legal regulation of liability as a result of harm in Russian law of the second half of the XIX - early XX centuries. // Russian law: education, practice, science. - No. 1 (91), 2016 .-- S. 41 - 46.
• Gubaeva A.K. Civil liability for harm caused by a crime: Author. dis. ... cand. legal sciences. L., 1985.
• Ioffe O.S. Responsibility for Soviet civil law // Ioffe OS Selected Works: In 4 vol. T. 1. St. Petersburg., 2003.
• Krasavchikov O.A. Compensation for harm caused by a source of increased danger // Krasavchikov O.A. Categories of civil law science: Selected works: In 2 vol. T. 2. M., 2005.
• Krasheninnikov E.A. Reflections on tort claims // Tort obligations under Russian civil law: Sat. scientific tr / Ans. ed. A.S. Shevchenko. Vladivostok, 2005.
• Sergeev I.V. Legal regulation of the institution of compensation for moral harm in the law of the Russian Empire (genesis and further development in the second half of the XIX - early XX centuries) // Jurisprudence. - No. 3, 2015. - S. 28 - 35.
• Sergeev I.V. Features of the institution of fulfillment of obligations in ancient Rome // Politics, state and law. 2015. No. 5 [Electronic resource . URL: http://politika.snauka.ru/2015/05/3001 ]
• Smirnov V.T., Sobchak A.A. General doctrine of tort obligations in Soviet civil law. L., 1983.
• Thorden S.A. The initial tort claim of the citizens of Esgarot in the person of captain archers Bard to Torin Oukenshild: qualification and assessment of validity in the light of civil laws and customs of free peoples of Middle-earth // Obligations arising out of contract: Collection of articles / Hand. author call and holes ed. M.A. Rozhkova. M .: Statute, 2015. S. 145–224. (inaccessible link)
• Fleishits E.A. Obligations of harm and unjust enrichment. M., 1951.
• Bar chr. v. Principles of European Law. Vol. 7: Non-Contractual Liability Arising out of Damage Caused to Another. München, 2009.
• Jansen N. Law of Torts / Delict, General and Lex Aquilia // The Max Planck Encyclopedia of European Private Law. Vol. 2 / Ed. by J. Basedow, KJ Hopt, R. Zimmermann with A. Stier. Oxford, 2012.
• Parisi F. The Genesis of Liability in Ancient Law // American Law and Economics Review. 2001. Vol. 3. No. one.
• Schäfer H.-B. Tort Law: General // Encyclopedia of Law and Economics. Vol. 2: Civil Law and Economics / Ed. by B. Bouckaert and G. De Geest. Cheltenham, 2000.
• Wagner G. Comparative Tort Law // The Oxford Handbook of Comparative Law / Ed. by M. Reimann and R. Zimmermann. Oxford, 2006.

• Delict // Brockhaus and Efron Encyclopedic Dictionary : in 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.