Principles of the Civil Code

Jeremy Bentham

Part 2

Chapter 7

Of Distribution of Loss.

Things form one branch of the objects of acquisition: Services form another. After having treated of the different methods of acquiring and losing (ceasing to possess) these two classes of objects, the analogy between gain and loss seems to indicate, as an ulterior labour, the different methods of distributing the losses to which these possessions are liable. This task will not be very long. An article comes to be destroyed, damaged, lost? The loss is already experienced. Is the proprietor known? upon him the weight of this loss rests. Is he not known? no one bears it: it is, as to every body, as null, and as if it had not happened. Ought the loss to be transferred to any other than the proprietor? that is to say, in other words, is there due to him a satisfaction, either from one cause or another? This is a subject which will be discussed in the Penal Code.

A single particular case will here suffice, as an indication of the principles.

When the buyer and seller of merchandise are at a distance from each other, it must necessarily pass through a number, more or less, of intermediate hands. It may be carried by land or by -water: the merchandise becomes destroyed, damaged, or lost: it does not reach its destination in the condition in which it ought to be: upon whom shall the loss fall? upon the seller or the buyer? I say upon the seller, saving his recourse against the intermediate agents. He may by his care contribute to the security of the merchandise: it is for him to choose the moment and the manner of sending it, to take the necessary precautions: on him depends the proof. All this ought to be more easy to the merchant who sells, than to the particular individual who buys; whilst, as to him, it is only by accident that his cares can contribute in any manner to bring about the desired event.---Reason, Superior preventive faculty. Principle, Security.

Particular situations may indicate the necessity of departing from this general rule, by corresponding dispositions. For a much stronger reason, individuals may depart from it themselves, by agreements made among themselves. Indication can here only be made of the principles: their application would be out of place.

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