Reader in European Private Law
(Currently on Sabbatical 2016/2017)

Maîtrise DEA (Sorb) LLM (Lond) DPhil (Oxon)
View my full research profile

Biography

Eric Descheemaeker joined the School of Law in 2011. Prior to taking up his appointment in Edinburgh, he was Fellow and Tutor in Law at St Catherine’s College, University of Oxford (2004-09) and then Lecturer in Law at the University of Bristol (2008-11). His broad fields of interests are the law of obligations (in particular delict/tort), comparative law (especially English law, French law and mixed legal systems) and Roman law.

At Edinburgh, Eric is involved in the teaching of the LL.M. courses on Delict and Tort, Comparative Unjustified Enrichment and Anatomy of Private Law, as well the Honours modules on Personality Rights and Comparative Law. He also directs the LL.M. in Comparative and European Private Law, which started in 2011.

His first monograph was published in 2009 by Oxford University Press under the title The Division of Wrongs: A Historical Comparative Study, and concerned itself with some structural issues within the law of civil wrongs in the Romanist tradition and in English law. It was shortlisted for the 2010 Birks prize for outstanding legal scholarship by the Society of Legal Scholars. 

The main focus of his current research concerns the protection of personality rights, in particular the law of defamation and privacy. In 2011 he was awarded a Leverhulme Research Fellowship for a project on “Reconstructing the Law of Defamation”; as part of this project he has held visiting positions at Sciences Po Paris, the University of Cape Town, McGill and the University of Melbourne. He is generally interested in the comparative, historical and theoretical dimensions of the topic; and has a particular interest in the relationship between the ancient delict of iniuria and the protection of personality rights in the modern law of England and mixed jurisdictions (Scotland and South Africa in particular). This theme formed the basis of a conference organised at All Souls College in 2011, the proceedings of which were subsequently published by Hart Publishing (Iniuria and the Common Law, with HJ Scott, 2013). 

He is also interested in more theoretical issues within the law of civil wrongs, in particular the way the underlying rights are construed, the notion of protected interest, and the meaning of harm or loss. In the summer of 2015, he was a distinguished visiting fellow at the TC Beirne School of Law, University of Queensland, working on the relationship between wrong and loss in English and Australian tort law. 

Besides tort/delict, Eric has secondary research interests in the law of unjust(ified) enrichment, a topic on which he organised an expert workshop in 2014 on the lessons Scots and English law could learn from South African debates on the structure of enrichment law; and the law of property, on which he edited the proceedings of an international conference organised in 2012 with the aim to help bridge the divide between the civilian tradition, mixed legal systems and the common law (The Consequences of Possession, EUP, 2014).

Among his other activities, Eric is director of the Edinburgh Centre for Private Law, co-convenor of the Torts section of the Society of Legal Scholars, founder and former organiser of the Oxford French Law Moot, and the reviews editor for the foreign books section of the Revue trimestrielle de droit civil. He is also a Research Fellow of the Institute of European and Comparative Law (University of Oxford), a Research Scholar at the Paul-André Crépeau Centre for Private and Comparative Law (McGill University) and a Honorary Research Associate in the Department of Private Law at the University of Cape Town. In 2012 he was elected to the International Academy of Comparative Law.

Eric was educated at the Universities of Paris, Berlin and London, before going up to Oxford in 2001 to read for the D.Phil. He wrote his dissertation under the late Peter Birks.

Courses Taught

Delict (Ordinary) (Course Organiser)

Delict & Tort (LLM) (Course Organiser)

Delictual Liability (Honours) (Course Organiser)

The Anatomy of Private Law (LLM) (Course Organiser)

PhD Supervisees

Mat Campbell  'The subsidiarity of unjust enrichment: Anglo-Franco-Scots perspectives'

Po-Yuan Chang  'Intentionally Inflicted Mental Harm'

Books

Eric Descheemaeker The Division of Wrongs: A Historical Comparative Study (OUP, 2009)
Abstract: The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called 'delicts' and the other 'quasi-delicts'. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores. The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.

Edited Books

Eric Descheemaeker The Consequences of Possession (EUP, 2014)
Abstract: The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. Bringing together contributions of scholars from the civilian tradition (France, Germany, Italy), the common-law world (England) and mixed legal systems (Quebec, Scotland, South Africa), The Consequences of Possession examines from a historical and comparative perspective the consequences which the law derives from the recognition of a possessory relationship between a person and a thing. Excluding rights which require more than possession to be triggered (such as prescriptive acquisition or transfer of title by delivery), it focuses on the protection of possession across the divide between the two great western legal traditions.

Eric Descheemaeker, the late Peter Birks The Roman Law of Obligations (OUP, 2014)
Abstract: This volume, the first in the Peter Birks Papers series, contains the author's notes on a series of lectures on the Roman law of obligations which were delivered in Edinburgh in 1982. Their posthumous publication gives, for the first time, a comprehensive insight into Birks' views on the topic, which are relevant not only in a Roman context but also from a modern English perspective.

Eric Descheemaeker, Helen Scott Iniuria and the Common Law (Hart Publishing, 2013)
Abstract: The delict of iniuria is among the most sophisticated products of the Roman legal tradition. The original focus of the delict was assault, although iniuria - literally a wrong or unlawful act - indicated a very wide potential scope. Yet it quickly grew to include sexual harassment and defamation, and by the first century CE it had been re-oriented around the concept of contumelia so as to incorporate a range of new wrongs, including insult and invasion of privacy. In truth, it now comprised all attacks on personality. It is the Roman delict of iniuria which forms the foundation of both the South African and - more controversially - Scots laws of injuries to personality. On the other hand, iniuria is a concept formally alien to English law. But as its title suggests, this book of essays is representative of a species of legal scholarship perhaps best described as 'oxymoronic comparative law', employing a concept peculiar to one legal tradition in order to interrogate another where, apparently, it does not belong. Addressing a series of doctrinal puzzles within the law of assault, defamation and breach of privacy, it considers in what respects the Roman delict of iniuria overlaps with its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and the degree to which the Roman proto-delict points the way to future developments in each of these three legal systems.

Journal Articles

Eric Descheemaeker 'Mapping Defamation Defences' (2015) Modern Law Review 641-71
Abstract: Tort defences are generally neglected; and given the considerable role they play in defamation, this is probably the cause of action where this neglect matters most. The law of defamation recognises a dozen or so defences: at first sight the list looks like a hotchpotch of unrelated doctrines. This paper is an attempt to reduce them to a few guiding principles. Taking as its starting point the definition of the cause of action as an injury to the claimant's reputation, it argues that those doctrines fall into three classes: (i) defences which exclude unlawfulness, ie justify the injury on the basis that it was inflicted in pursuance of a right or liberty granted to the defendant; (ii) defences which exclude blameworthiness, ie excuse the defendant because he was not at fault for causing the injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure and negligent: that last group, not being underpinned by already recognised principles, deserves particular scrutiny. Part of it really is concerned with the rule of repetition, which needs to be qualified by the recognition of a defence of 'warranted republication'; the remainder ought to be abolished, being an anachronistic hangover from the old requirement of malice.

Eric Descheemaeker 'Three Errors in the Defamation Act 2013' (2015) Journal of European Tort Law 24-48
Abstract: This article considers three aspects of a recent English statute on the law of defamation, the Defamation Act 2013, disputing in each case their opportuneness. First, it argues that the new requirement of 'serious harm' under sec 1 runs against basic tenets of the law. Second, it expresses concern about the new drafting of the defence of responsible journalism (sec 4), which is in danger of losing touch with its original rationale. Third, it examines the revamped version of the defence of fair comment, now known as 'honest opinion' (sec 3), and suggests that comment should never be actionable because it cannot be defamatory in the first place.

Eric Descheemaeker 'New Directions in Unjustified Enrichment: Learning from South Africa?' (2014) Edinburgh Law Review 414-6

Eric Descheemaeker 'Tort Law Defences: A Defence of Conventionalism' (2014) Modern Law Review 493-512
Abstract: This article is a critical review of an important recent book by James Goudkamp: Tort Law Defences (Oxford: Hart Publishing, 2013). In this work, the author seeks to reconceptualise defences - and while the ambit of the project is confined to the law of tort, it has implication for large swathes of private law. Goudkamp's book makes a number of important points. Some, like the need to distinguish sharply between defences properly so called and denials, ought not to be controversial. Others will be. The present article focuses on two interrelated claims made by Goudkamp, which are foundational to the book yet ought not in my mind to be accepted. First comes the idea that a defence is defined as 'a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present': in other words, for the author, the definition of a defence is substantive (a plea in confession and avoidance) not procedural (based on the empirical observation of who bears the onus of proving what). Second is the idea that defences are distinct from torts, rather than part of the definition of the causes of action, a view which can be described as 'dualism'. Contra Goudkamp, the present article seeks to defend unitarianism and also - at least when it comes to what the author calls 'justification defences' - the view that defences do in fact prevent the tort from arising in the first place. Adopting a different perspective, the final section seeks to highlight the importance of Dr Goudkamp's attempt to consider defences as a whole: the main reason - on which the author does not himself rely - is that, despite the above criticisms, it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.

Eric Descheemaeker 'Three Keys to Defamation: Media 24 in a Comparative Perspective' (2013) South African Law Journal 435-48
Abstract: [forthcoming]

Eric Descheemaeker 'De la structure de la responsabilité : réflexions comparatistes autour de Torts and Rights' (2013) Revue internationale de droit comparé 51-74
Abstract: This review article examines Robert Stevens' Torts and Rights, arguably the single most important work on English tort law published over the last decade. Professor Stevens' thesis is that the English law of torts can be analysed throughout as the body of law that pertains to the violation of primary rights. This argument has far-reaching consequences, in particular when it comes to the transversal tort of negligence, which are of comparative significance. The present author explains the significance of Professor Stevens' argument against the historical background of English law and proceeds to offer a criticism based on the allegedly defective understanding that the book has of the concept of rights.

Eric Descheemaeker 'Quasi-contrats et enrichissement injustifié en droit français' (2013) Revue trimestrielle de droit civil 1-26
Abstract: Of Justinian's four classes of obligations (ex contractu, quasi ex contractu, ex delicto, quasi ex delicto), the quasi-contractual one has resisted rationalisation the longest. This paper makes the claim that quasi-contracts should disappear, as a category, from French law and be replaced with a general action in unjustified enrichment. It also explores the difficulties that such a switch would entail.

Eric Descheemaeker, Christian Baldus et al. 'Forum Privatrechtsharmonisierung: Eine europäische Öffentlichkeit?' (2012) Zeitschrift für Gemeinschaftsprivatrecht 286-91

Eric Descheemaeker '"Veritas non est defamatio"? Truth as a Defence in the Law of Defamation' (2011) Legal Studies 1-20
Abstract: Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This article, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.

Eric Descheemaeker '"A man of bad character has not so much to lose": Truth as a Defence in the South African Law of Defamation' (2011) South African Law Journal 452-78
Abstract: This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.

Eric Descheemaeker 'Obligations quasi ex delicto and Strict Liability in Roman Law' (2010) Journal of Legal History 1-20
Abstract: The meaning of the Gaian-Justinianic division of obligations arising from unlawful events into obligationes ex delicto and quasi ex delicto has long been a puzzle for Romanists. The strict liability theory, which understands "quasi-delicts" as examples of situational wrongs, defined independently of fault, was first aired in the 1940s but has never gained widespread support. The case of the iudex qui litem suam facit was regarded as a stumbling block for the theory. The present article aims to make a new and systematic case for strict liability as the basis of the quasi-delictal category and argues that, in the light of archaeological discoveries which have overhauled our understanding of the judge's liability, we can now have a coherent picture of Roman quasi-delictal liability as liability even without fault.

Eric Descheemaeker 'La dualité des torts en droit français (délits, quasi-délits et la notion de faute)' (2010) Revue trimestrielle de droit civil 435-57
Abstract: Le Code civil contient une faille structurelle : son chapitre 4.3.2 (« des délits et des quasi-délits ») est censé, par construction, se rapporter à la responsabilité fondée sur un délit ou un quasi-délit, c'est-à-dire, selon l'interprétation doctrinale unanime, un acte dommageable causé-sans droit-soit intentionnellement, soit négligemment. Pourtant, ce chapitre contient des faits générateur de responsabilité aussi bien non-coupables que coupables : le contenu ne correspond donc pas au contenant. Cet article examine à la fois la cause et l'une des conséquences de cette incapacité du Code à faire place à la responsabilité situationnelle, définie sans référence à la faute-culpa. La cause, c'est que le droit français moderne a réécrit la dichotomie romaine entre obligations ex delicto> et quasi ex delicto, lui faisant perdre son caractère exhaustif. La conséquence, c'est que la notion de faute a été soumise à une force centrifuge considérable, tendant à la vider de sa condition historique de culpa. Les effets de cette force sont visibles tant en doctrine que dans la jurisprudence.

Eric Descheemaeker 'Defamation Outside Reputation: Proposals for the Reform of English Law' (2010) Tort Law Review 133-9
Abstract: The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the 'shun and avoid' test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of 'special damage'; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.

Eric Descheemaeker 'The Roman Division of Wrongs: A New Hypothesis' (2009) Roman Legal Tradition 1-23
Abstract: This article examines the rationale of the Justinianic division of wrongs into delicts and "quasi-delicts". Taking as its starting point the assumption that the distinction corresponded to that between fault (culpa)-based and situational liability, it hypothesizes that the quasi-delictal appendix arose after the time of Gaius' Institutes from a contraction of the Roman concept of a civil wrong (delictum): its scope would have narrowed from an unlawful liability-creating act to a blameworthy such act, thereby rejecting outside of the delictal class proper instances of liability regardless of fault.

Eric Descheemaeker 'Protecting Reputation: Defamation and Negligence' (2009) Oxford Journal of Legal Studies 603-41
Abstract: The present article concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This article shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this article documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.

Eric Descheemaeker 'La question de la fusion de la common law et de l'equity en droit anglais. A propos de l'ouvrage Equity de Sarah Worthington' (2007) Thémis 631-50
Abstract: English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington's recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.

Eric Descheemaeker 'Les héritiers de Lenel : la chaire royale de droit romain à Oxford (1948-2004)' (2006) Revue historique de droit français et étranger 613-28
Abstract: The four incumbents of the Oxford Regius Chair of Civil Law in the second half of the 20th century share one remarkable feature, namely, that they all are related to Otto Lenel, the German initiator of modern Roman law studies. The connection is twofold, both personal (through teacher-pupil relationships) and intellectual, in that they have received and developed Lenel's project. This project can be described as the restoration of the primacy of procedure in Roman law, as well as the putting back in order of the Roman law library. Professors Beatson and Zimmermann's recent Jurists Uprooted helped to unveil this connection. The present shorter article aims at expounding it in a more systematic way by exploring the background to this relationship, as well as the link between each of the incumbents (H. F. Jolowicz, David Daube, Tony Honoré, Peter Birks) and Otto Lenel.

Eric Descheemaeker 'In Memoriam : Peter Brian Herrenden Birks (1941 - 2004)' (2004) Revue internationale de droit comparé 961-7

Eric Descheemaeker 'Mapping the Common Law: On a Recent English Attempt and its Links with Scottish Jurisprudence' (2003) Juridical Review 295-311
Abstract: One principal difference between the legal traditions of Scotland and England is that, while Scots lawyers have always been committed to a rational structure of the law, English lawyers have generally shown themselves indifferent to legal taxonomy. Nevertheless, Oxford's Professor Birks has recently edited a treatise on English private law which in effect revives the long-standing Roman institutional scheme, thus 'civilianising' the common law and bringing it a step closer to Scots law, which has been relying on this map for centuries. This article sets out to evaluate the merits of his enterprise. To that effect, it primarily examines the triangular relationship between the taxonomies of Roman, English and Scots law.

Eric Descheemaeker 'Faut-il codifier le droit privé européen des contrats?' (2002) McGill Law Journal 791-853
Abstract: Faut-il codifier le droit privé des contrats en Europe? La question, estime l'auteur, se décompose en trois sous-questions : Dans un premier temps, cette codification est-elle pensable, c'est-à-dire y a-t-il un sens à prétendre l'envisager? Ensuite est-elle souhaitable ? Et finalement est-elle faisable ? L'exigence de codification supposerait qu'il soit répondu par l'affirmative aux trois. Or, selon l'auteur, ce n'est pas le cas, car s'il est bien pensable de créer un instrument juridique commun à des pays relevant de traditions et d'épistémologies juridiques distinctes, notamment des droits romanistes et de common law, en revanche les arguments en faveur d'un tel projet lui semblent peser de poids face à ceux à son encontre, coûts et inutilité notamment. Surtout, l'idée d'«européaniser» le droit des contrats témoigne d'une certaine incompréhension de la nature du droit : en effet, non seulement il est impossible d'exprimer de manière uniforme une même norme dans plusieurs systèmes différents, surtout s'ils utilisent des langues distinctes, mais encore la dépendance à l'intérieur de chacun de ces système du droit des contrats par rapport aux autres branches du droit et à la science juridique nationale rend-elle la création d'un droit uniforme de la matière en Europe radicalement impossible.

Chapters

Eric Descheemaeker 'Les assurances: rapport anglais' in Eric Savaux (eds) La socialisation de la réparation: Fonds d'indemnisation et assurances (Bruylant, 2015) 237-246

Eric Descheemaeker 'Truth and Truthfulness in the Law of Defamation' in Anne-Sophie Hulin, Robert Leckey and Lionel Smith (eds) Les apparences en droit civil (Yvon Blais, 2015) 13-48
Abstract: This paper provides a comparative overview of two related, but analytically distinct, issues in the law of defamation. The first is whether the true character of a defamatory statement relieves the defendant from liability. On this issue, the civilian and common-law traditions have historically settled on two markedly different stances, the latter accepting the sufficiency of truth simpliciter while the former never did. Some of the reasons for this distinction are explored. Different is the issue of truthfulness, in the sense of belief in truth. Does it, and should it matter, that a defendant believed that what they said was true albeit (prima facie) defamatory? Should we distinguish on the basis of the 'quality' of the belief? This paper argues that reasonable truthfulness ought to be recognised as a defence in the law of defamation. De lege lata, the law has never come up with such a general principle, but observation suggests that it has in fact been beating about the bush for a long time, using other analytical tools. Besides, a number of recent developments internationally can be understood as attempts to get closer to the above position.

Eric Descheemaeker 'Introduction' in Eric Descheemaeker, the late Peter Birks (eds) The Roman Law of Obligations (OUP, 2014) xx-xxvii
Abstract: This is the introductory chapter to the posthumous edition of Peter Birks' Roman Law of Obligations (OUP 2014). The book comprises a complete set of lectures notes on the topic, which were delivered in Edinburgh in 1982 and found in the author's archives after his death. The introductory chapter presents the lectures, their substance and significance, the work carried out by the editor, and also the wider 'Peter Birks Papers' series, of which this volume is the first.

Eric Descheemaeker 'The Consequences of Possession' in Eric Descheemaeker The Consequences of Possession (EUP, 2014) 1-29
Abstract: This is the introductory chapter of Eric Descheemaeker (ed.), The Consequences of Possession (Edinburgh: Edinburgh University Press, 2014), a book which comprises the papers that were presented at a namesake conference at Old College, University of Edinburgh, in 2012 by the following scholars: Craig Anderson (Robert Gordon), Raffaele Caterina (Turin), Simon Douglas (Oxford), Yaëll Emerich (McGill), Robin Hickey (Durham), Duard Kleyn (Pretoria), Lena Kunz (Heidelberg) and Thomas Rüfner (Trier). The subject-matter of the book is the consequences of possession, examined from a comparative and historical perspective. Leaving aside the question on what possession is, a question that has caused a considerable amount of ink to be spilled for centuries (at least in the civilian tradition), it concerns itself with the law's response to the recognition of a factual situation as amounting to 'possession' (or an equivalent concept like 'possessio', 'possession' or 'Besitz'). It is be the first attempt to look in a coherent fashion at the topic of possession in a comparative and historical perspective, bringing together scholars from the civilian tradition (Germany, Italy) as well as the common law (England) and mixed legal systems (Quebec, Scotland, South Africa). This introductory chapter examines four questions: 1) Why protect possession?; 2) How is possession protected?; 3) How does the fact of possession relate to any rights to or of possession?; 4) What is so-called "quasi-possession"? One theme that is highlighted throughout the chapter is that the distance between the two great western legal traditions in this field might not be as great as is commonly believed, English law and modern civilian systems having both emerged at the crossroads of Roman law, canon law and feudalism. In this, the two of them belong to a pan-European current of concepts and doctrines which has shaped the modern law in all the jurisdictions examined, if in markedly different ways.

Eric Descheemaeker, Helen Scott 'Iniuria and the Common Law' in Eric Descheemaeker, Helen Scott (eds) Iniuria and the Common Law (Hart Publishing, 2013) 1-31
Abstract: This article is the introductory chapter of Eric Descheemaeker and Helen Scott (eds), Iniuria and the Common Law (Oxford: Hart Publishing, 2013), a book which comprises the papers that were presented at a namesake seminar at All Souls College, Oxford, in 2011 by the following scholars: John Blackie, Jonathan Burchell, François du Bois, Paul du Plessis, Anton Fagan, David Ibbetson, Paul Mitchell, Kenneth Norrie and the two editors. The book is a form of 'oxymoronic comparative law': that is to say, it employs a concept from one legal tradition (the Roman delict of iniuria, ie insult or contempt) to interrogate another where, on the face of it, it does not belong (the common law, including the mixed legal systems of South Africa and Scotland). Its overall theme and purpose is to consider in what respects the delict of iniuria overlaps with, fall short of or exceeds its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and, finally, the degree to which the Roman proto-delict points the way to future development or rationalisation in each of these three legal systems. The introductory chapter seeks, first, to provide a concise account of the Roman law of iniuria and, second, to explore some of the conceptual issues arising from our attempt to examine iniuria from the outside perspective of the common law: these pertain, in particular, to the internal structure of the delict, the place of the actio iniuriarum within the broader context of the punitive and reipersecutory functions of the law, and the relationship of iniuria with the modern common law in the three jurisdictions under examination.

Eric Descheemaeker 'Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory' in Eric Descheemaeker, Helen Scott (eds) Iniuria and the Common Law (Hart Publishing, 2013) 67-95
Abstract: Injuries to feelings have been a perennially difficult issue for the law of civil wrongs. The Romanist tradition pressed into service the word 'solatium' (solace) to designate the box in which such injuries would commonly be placed and addressed. While the concept is not formally part of the common lawyer's toolbox, English law has also resorted to it in a number of circumstances, typically related to wounded feelings. After having examined the use of the word in Roman law, the later civilian tradition and English law, this paper argues that the word solatium should be done away with, because it is intrinsically ambiguous and allows by its very existence the perpetuation of these ambiguities. More fundamentally, the underlying idea of injuries to feelings should be discarded as an organizational category in the law of tort. Feelings, it is argued, are not another interest in need of protection alongside property and personality rights; rather they constitutes a separate level of analysis (internal, as opposed to external), from which the entirety of the law of wrongs can be examined. When the law aligns the two levels of enquiry, it commits a category mistake which will inevitably result in inconsistency or double-counting.

Eric Descheemaeker 'Fusionner droit strict et équité : aperçus sur le droit anglais de la responsabilité civile' in Denis Baranger (eds) L'équité et ses métamorphoses (Dalloz, 2011) 91-107
Abstract: This article (in French) examines the argument in favour of the fusion between common law and equity, as approached from the perspective of the English law of civil wrongs. Looking in turn at the four main legal responses to the commission of a wrong (compensatory damages, punitive damages, restitutionary damages, creation of a proprietary right), it describes the differences between the redress claimable at common law and in equity and argues that, in all these cases, there is no principled reason why such a difference should exist.

Eric Descheemaeker 'The Publications of Peter Birks (1969 - 2005)' in Andrew Burrows and Lord Rodger of Earlsferry (eds) Mapping the Law: Essays in Memory of Peter Birks (Oxford University Press, 2006) 641-51
Abstract: http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199206551.001.0001/acprof-9780199206551-bibliography-1 Reprinted (with correction) in R. B. Grantham and C. E. F. Rickett, Structure and Justification in Private Law. Essays for Peter Birks (Oxford, 2008) 441-52

Notes and Reviews

Eric Descheemaeker 'Review of Paul Mitchell, A History of Tort Law 1900-1950 (Cambridge, 2015)' (2015) Modern Law Review 695-9

Eric Descheemaeker 'Review of Andrew Burrows, David Johnston and Reinhard Zimmermann (eds.), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford, 2013)' (2015) Revue trimestrielle de droit civil 245-9

Eric Descheemaeker 'Review of Andrew Burrows et al., A Restatement of the English Law of Unjust Enrichment (Oxford, 2012)' (2014) Revue trimestrielle de droit civil 742-6

Eric Descheemaeker 'Review of S. Rowan, Remedies for Breach of Contract: A Comparative Analysis of the Protection of Performance (Oxford, 2012)' (2014) Revue trimestrielle de droit civil 231-5

Eric Descheemaeker 'Review of H.-J. Vergau, Der Ersatz immateriellen Schadens in der Rechtsprechung des 19. Jahrhunderts zum französischen und zum deutschen Deliktsrecht (Potsdam, 2006)' (2013) Revue trimestrielle de droit civil 928-30

Eric Descheemaeker 'Review of C. Barnard et al. (eds), Tony Weir on the Case (Oxford, 2012)' (2013) Revue trimestrielle de droit civil 722-4

Eric Descheemaeker 'Review of J. Bell and D. Ibbetson (eds), Comparative Studies in the Development of the Law of Torts in Europe (Cambridge, 2010-12)' (2013) Revue trimestrielle de droit civil 470-3

Eric Descheemaeker 'Review of E. Metzger (ed), David Daube: A Centenary Celebration (Glasgow, 2010)' (2011) Revue historique de droit français et étranger 127-8

Eric Descheemaeker 'Review of N. Whitty and R. Zimmermann (eds), Rights of Personality in Scots Law: A Comparative Perspective (Dundee, 2009)' (2010) Modern Law Review 898-902

Eric Descheemaeker 'Review of L. McNamara, Reputation and Defamation (Oxford, 2007)' (2010) Law Quarterly Review 642-4

Eric Descheemaeker 'Review of J. Cartwright, S. Vogenauer and S. Whittaker (eds), Reforming the French Law of Obligations. Comparative Reflections on the Avant-projet de réforme du droit des obligations et de la prescription (Oxford, 2009)' (2010) Modern Law Review 1086-9

Eric Descheemaeker 'Review of P. Glenn, On Common Laws (Oxford, 2005)' (2007) Oxford University Commonwealth Law Journal 125-35

Eric Descheemaeker 'Review of S. Worthington, Equity (Oxford, 2003)' (2006) Revue internationale de droit comparé 1025-33

Eric Descheemaeker 'Review of E. Schrage (ed), Negligence. The Comparative Legal History of the Law of Torts (Berlin, 2001)' (2004) Revue internationale de droit comparé 261-70

Eric Descheemaeker 'Review of P. Birks, Unjust Enrichment (Oxford, 2003)' (2004) Revue internationale de droit comparé 715-24

Eric Descheemaeker 'Review of D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, 1999)' (2004) Revue internationale de droit comparé 1005-15

Eric Descheemaeker 'Review of G. Treitel, Some Landmarks of Twentieth Century Contract Law (Oxford, 2002)' (2003) Revue internationale de droit comparé 492-4

Eric Descheemaeker 'Review of I. Schwenzer and G. Hager (eds), Festschrift für Peter Schlechtriem zum 70. Geburtstag (Tübingen, 2003)' (2003) Revue internationale de droit comparé 1016-22

Eric Descheemaeker 'Review of R. Zimmermann, Roman Law, Contemporary Law, European Law. The Civilian Tradition Today (Oxford, 2001)' (2003) Revue internationale de droit comparé 1025-28

Eric Descheemaeker 'Review of P. Birks (ed), English Private Law (Oxford, 2000)' (2002) Revue internationale de droit comparé 869-71

Working Papers

Eric Descheemaeker 'Commentaire du projet d'ordonnance du Ministère français de la justice (2015) : I - Les sources d'obligations' (2015) [Download]
Abstract: Critical remarks on the penultimate draft of the reform project of the French law of obligations as published by the Ministry of Justice in February 2015. Part I concerns the sources of obligations

Eric Descheemaeker 'Commentaire du projet d'ordonnance du Ministère français de la justice (2015) : II - Gestion d'affaire' (2015) [Download]
Abstract: Critical remarks on the penultimate draft of the reform project of the French law of obligations as published by the Ministry of Justice in February 2015. Part II concerns negotiorum gestio.

Eric Descheemaeker 'Commentaire du projet d'ordonnance du Ministère français de la justice (2015) : III - Paiement de l'indu' (2015) [Download]
Abstract: Critical remarks on the penultimate draft of the reform project of the French law of obligations as published by the Ministry of Justice in February 2015. Part III concerns recovery of an undue payment.

Eric Descheemaeker 'Commentaire du projet d'ordonnance du Ministère français de la justice (2015) : IV - Enrichissement injustifié' (2015) [Download]
Abstract: Critical remarks on the penultimate draft of the reform project of the French law of obligations as published by the Ministry of Justice in February 2015. Part IV concerns unjustified enrichment.

Eric Descheemaeker 'The Harms of Privacy', Edinburgh Law School Working Paper Series, 2015/27 (SSRN, 2015) [Download]
Abstract: This paper aims to identify and order the harms or losses which the law might compensate in actions for breach of privacy. Part I identifies three such harms: pecuniary loss, mental distress and breach of privacy per se. Part II comprises an ordering exercise which requires a theoretical detour in order to explain why the redress of these various heads of detriment answers to two different logics which ought not to be combined. This is because pecuniary loss and mental distress correspond to a 'bipolar' model of tort, where the wrong is contrasted with the ensuing losses: on that model, the abstract loss of privacy ought not to be compensated separately. Conversely, the compensation of the right-diminution itself entails switching to a 'unipolar' model, whereby wrong and loss collapse onto one another, rendering redundant the redress of harms flowing directly from it. The law of privacy shows itself to be a battlefield between these two analytical frameworks, where the temptation to combine the approaches is a constant one. Part III examines four consequences the choice of model has on (i) the privacy of juridical persons, (ii) that of non-sentient beings, (iii) the meaning of loss in tort law and (iv) the relationship between compensation and vindication as aims of money awards.

Eric Descheemaeker 'Three Errors in the Defamation Act 2013', Edinburgh Law School Working Paper Series, 2014/45 (SSRN, 2014) [Download]
Abstract: This article considers three aspects of a recent British statute on the law of defamation, the Defamation Act 2013, disputing in each case their opportuneness. First, it argues that the new requirement of 'serious harm' under sec 1 runs against basic tenets of the law. Second, it expresses concern about the new drafting of the defence of responsible journalism (sec 4), which is in danger of losing touch with its original rationale. Third, it examines the revamped version of the defence of fair comment, now known as 'honest opinion' (sec 3), and suggests that comment should never be actionable because it cannot be defamatory in the first place.

Eric Descheemaeker 'Mapping Defamation Defences', Edinburgh Law School Working Paper Series, 2014/37 (SSRN, 2014) [Download]
Abstract: Tort defences are generally neglected; and given the considerable role they play in defamation, this is probably the cause of action where this neglect matters most. The law of defamation recognises a dozen or so defences: at first sight the list looks like a hotchpotch of unrelated doctrines. This paper is an attempt to reduce them to a few guiding principles. Taking as its starting point the definition of the cause of action as an injury to the claimant's reputation, it argues that those doctrines fall into three classes: (i) defences which exclude unlawfulness, ie justify the injury on the basis that it was inflicted in pursuance of a right or liberty granted to the defendant; (ii) defences which exclude blameworthiness, ie excuse the defendant because he was not at fault for causing the injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure and negligent: that last group, not being underpinned by already recognised principles, deserves particular scrutiny. Part of it really is concerned with the rule of repetition, which needs to be qualified by the recognition of a defence of 'warranted republication'; the remainder ought to be abolished, being an anachronistic hangover from the old requirement of malice.

Eric Descheemaeker 'Old and New Learning in the Law of Amende Honorable', Edinburgh Law School Working Paper Series, 2014/36 (SSRN, 2014) [Download]
Abstract: One remarkable feature of the South African law of defamation or iniuria is how it has retained a historical form of redress still known under its French name as amende honorable. After a long period of eclipse, the remedy has recently been revived (albeit to an extent which remains uncertain), at least in part under the influence of ideas of restorative justice and ubuntu. In that new context, it has been suggested that the remedy - a form of retraction of the offending words coupled with an apology for their utterance - could redress injuries to reputation, dignity or feelings better than money damages would, and also help mend relationships between the parties. This paper offers a sceptical note on those various counts. Tracing the history of amende honorable in Roman-Dutch law and beyond, it argues that the gist of the action, both historically and doctrinally, lies in a now largely overlooked dimension, namely, the public humiliation of the offender. It is this dimension, unpalatable though it might be to us, which accounts for the potency of the remedy; if we lose sight of it, we find ourselves left with a Court-imposed retraction and apology which is incapable of meeting any of the hopes placed by the moderns in the revival of the ancient remedy.

Eric Descheemaeker ''The Internationalisation of Legal Education: Scottish Report', National Report for the 19th Congress of the International Academy of Comparative Law, Vienna, July 2014' (2014) [Download]

Eric Descheemaeker ''Les assurances : rapport anglais', National Report for the meeting of the Groupe de Recherche Européen sur la Responsabilité Civile et l'Assurance (GRERCA), Poitiers, December 2013' (2013) [Download]

Eric Descheemaeker ''A man of bad character has not so much to lose': Truth as a defence in the South African law of defamation', Edinburgh Law School Working Paper Series, 2011/39 (SSRN, 2011) [Download]
Abstract: This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.

Eric Descheemaeker 'Defamation Outside Reputation: Proposals for the reform of English law', Edinburgh Law School Working Paper Series (SSRN, 2011) [Download]
Abstract: The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the 'shun and avoid' test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of 'special damage'; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.

Papers and Presentations

Eric Descheemaeker 'The Amende Honorable' presented at International Conference on "Honour and the Law", Katholieke Universiteit Leuven, 2015

Eric Descheemaeker 'The Harms of Privacy' presented at The Campbell Legacy: A Decade of "Misuse of Private Information", Newcastle Law School, 2015

Eric Descheemaeker 'Defending the Incompatibility of Judicial Discretion with the Rule of Law' presented at Workshop on "Judicial Discretion and the Rule of Law", University of Edinburgh, 2015

Eric Descheemaeker '"Mapping Harms in Tort Law"' presented at Cambridge Private Law Centre, University of Cambridge, 2015

Eric Descheemaeker 'Injured Feelings and the Law of Torts' presented at La compensation en common law, Université de Montréal, 2014

Eric Descheemaeker 'Re-conceptualising Defences in the Law of Defamation' presented at Private Law Policy and Research Group, University of New South Wales, Sydney, 2014

Eric Descheemaeker 'Challenging Heterodoxy: Tort Law Defences' presented at Obligations Group, University of Melbourne, 2014

Eric Descheemaeker 'Re-conceptualising Defences in the Law of Defamation' presented at Defamation and Privacy: Comparative Law, Media and Public Speech, Centre for Media and Communications Law, University of Melbourne, 2014

Eric Descheemaeker 'Vie et mort de l'action d'injures en droit français' presented at Centre Aquitain d'Histoire du Droit, Université de Bordeaux, 2014

Eric Descheemaeker 'Rethinking Fair Comment' presented at Workshop on "Recent Developments in the Law of Defamation: A Comparative Perspective", University of Edinburgh, 2014

Eric Descheemaeker 'Mapping Defamation Defences' presented at Seventh Biennial Conference on the Law of Obligations, University of Hong Kong, 2014

Eric Descheemaeker 'Media 24 and the Defamation Act 2013' presented at Seminar on "The South African Law of Defamation after Media 24", University of Cape Town, 2014

Eric Descheemaeker 'Hurt Feelings as the Basis for Liability in Defamation: A Response' presented at Seminar on "The South African Law of Defamation after Media 24", University of Cape Town, 2014

Eric Descheemaeker 'Apologies, Defamation and Iniuria' presented at Staff Seminar, Department of Private Law, University of Cape Town, 2014

Eric Descheemaeker 'The Australian Origins of the Reynolds Privilege' presented at Conference of the Centre for Media and Communications Law, University of Melbourne, 2013

Eric Descheemaeker 'Legal Rationality as Legal History' presented at Conference of the UK IVR, Queen Mary, University of London, 2013

Eric Descheemaeker 'The Reynolds Privilege: Its Origins and Theoretical Significance' presented at Obligations Discussion Group, University of Oxford, 2013

Eric Descheemaeker 'Uncertainties in the French Law of Unjust Enrichment' presented at Comparative Unjust Enrichment, McGill University, 2013

Eric Descheemaeker 'Comparative Law and Unjustified Enrichment: Cross-Fertilisation and the Way Forward' presented at Staff Seminar Series, Edinburgh, 2013

Eric Descheemaeker 'Tort Law Defences: Defending Unitarianism' presented at Edinburgh Centre for Private Law, University of Edinburgh, 2013

Eric Descheemaeker 'Defamation, Negligence and the Defence of Responsible Journalism: History and Theory' presented at Private Law Discussion Group, London School of Economics and Political Science, 2013

Eric Descheemaeker 'Wrongfuless and Fault in the Law of Defamation: Some Comparative Remarks' presented at Symposium on "Reconceptualising the Law of Defamation", University of Edinburgh, 2012

Eric Descheemaeker 'Amende honorable in defamation actions: some historical and theoretical remarks' presented at Staff Seminar, Department of Private Law, University of Cape Town, 2012

Eric Descheemaeker 'Making Honourable Amends for Defamation: History and Theory' presented at Public Lecture, University of Pretoria, 2012

Eric Descheemaeker 'Making Honourable Amends for Defamation: History and Theory' presented at Private Law Discussion Group, University of Stellenbosch, 2012

Eric Descheemaeker 'Truth and Truthfulness in the Law of Defamation' presented at Civil Law Workshops, McGill University, 2012

Eric Descheemaeker 'Three Keys to Defamation: Media 24 in a Comparative Perspective' presented at Staff Seminar Series, University of Edinburgh, 2012

Eric Descheemaeker 'Solatium in Roman and English Law' presented at Iniuria and the Common Law, All Souls College, University of Oxford, 2011

Eric Descheemaeker 'Rethinking Emotional Wellbeing in the Law of Wrongs' presented at Conference of the Society of Legal Scholars, Downing College, University of Cambridge, 2011

Eric Descheemaeker 'Quasi-contracts and Unjustified Enrichment in French Law: Some Comparative Remarks' presented at Conference of the Society of Legal Scholars, Downing College, University of Cambridge, 2011

Eric Descheemaeker 'Truth, Defamation and Verbal Injuries: South African Law at the Crossroads?' presented at Third International Congress of the World Society of Mixed Jurisdiction Jurists, Hebrew University of Jerusalem, 2011

Eric Descheemaeker 'The Dangers of Mixing It Up. Some Remarks on Defamation and Truth in Civilian, Common-law and Mixed Jurisdictions' presented at Conference of the Irish Society of Comparative Law, University College Dublin, 2011

Eric Descheemaeker 'Solatium' presented at Staff Seminar Series, University of Edinburgh, 2011

Eric Descheemaeker 'Defamation and Truth: Two Models of Defamation' presented at Conference of the Society of Legal Scholars, University of Southampton, 2010

Eric Descheemaeker 'Some Historical and Comparative Remarks on the Roman Classification of Obligations from Wrongs' presented at Ex contractu, ex delicto. Conference on the history of the law of obligations, Jagiellonian University, Cracow, 2010

Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at Civil Law Centre, University of Aberdeen, 2010

Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at Edinburgh Roman Law Group, University of Edinburgh, 2010

Eric Descheemaeker ''Veritas non est defamatio'? Truth as a Defence in the Law of Defamation' presented at Research Seminar Series, University of Bristol, 2009

Eric Descheemaeker 'Civiliser la common law. L'exemple de l'enrichissement sans cause' presented at Colloque sur 'L'enseignement et la recherche en droit français au Royaume-Uni et en Irlande', Maison Française d'Oxford, 2009

Eric Descheemaeker 'Protecting Reputation: Defamation and Negligence' presented at 100th Conference of the Society of Legal Scholars, University of Keele, 2009

Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at 100th Conference of the Society of Legal Scholars, University of Keele, 2009

Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at Comparative Law Discussion Group, Institute of European and Comparative Law, University of Oxford, 2009