The Common Law

Oliver Wendell Holmes Jr.

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000679564
• Edition: 1
• Topic: Derecho
• Subtopic: Common Law

The Common Law is Oliver Wendell Holmes' most sustained work of jurisprudence. In it the careful reader will discern traces of his later thought as found in both his legal opinions and other writings. At the outset of The Common Law Holmes posits that he is concerned with establishing that the common law can meet the changing needs of society while preserving continuity with the past. A common law judge must be creative, both in determining society's current needs and in discerning how best to address these needs in a way that is continuous with past judicial decisions. In this way, the law evolves by moving out of its past, adapting to the needs of the present, and establishing a direction for the future. To Holmes' way of thinking, this approach is superior to imposing order in accordance with a philosophical position or theory because the law would thereby lose the flexibility it requires in responding to the needs and demands of disputing parties as well as society as a whole.

INDEX

Abduction, 49

Acceptance and delivery, 184; of an offer, 238

Accessio, 284

Accident: what is, 76; said to be no defence, 67–72, contra, 72–85

Acquisition, original, 193

Act: criminal, 45–50, 55–59, 61, 104–105; in civil liability, 73–74, 104–105, 121; said to be at a man’s peril, 67–72, contra, 72–85; of God, 159

Action: liability to an, a sanction, 67, contra, 118–119; rights of, went to the heir, 271

Adfathamire, 278

Administrators, 268

Admiralty: personification of ship, 24–30; procedure in rem, 193

Agency, developed from law of slaves, 17, 180–183

Agent: principal liable for torts of, 17, 180–182; principal and, but one persona, 183; false representation by, 182; contract by, 180; to hold possession, 183

Alienation, growth of freedom of, 277–279

Allegiance, due to lord of chief estate, 273

Ando-Saxon law: as to damage by slaves and animals, 18–19; as to bailment, 131–132; as to alienation, 276–280; as to warranty, 290

Animals: procedure against, 10–12, 15–16, 17–21; liability for damage by, 15–23, 93–95, 122–125; possession of wild, 167, 172. see also Cattle

Animus domini, 172–175

Appeals, see Trespass; Indictment

Appropriation and delivery, 184

Arson, 53–54

Assault, see Trespass

Assign: called quasi heir, 290–291, 293; quasi successor, 317; when entitled to benefit of warranty, 290–293, 300–301; when entitled to benefit of covenants, 294–295, 311–314; rights of, as to easements, 300–301, 311; had debt and covenant for rent, 304; when bound by warranty, 307; bound by a use, 316

Assignment of a leasehold, 230

Assize: functions of, 82, 91; for rent, 189

Assumpsit: in tort, 66, 145, 216–224; in bailment, 144–145, 146, 154...