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 Comparative Law and Personality Rights. 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.

Willingness to take Ph.D. students: Yes

Current Research Interests

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 interests, 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).

Research Groups

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.

Courses Taught

Delict and Tort (LLM) (Course Organiser)

Delictual Liability (Honours)

PhD Supervisees

Mat Campbell  'Anglo-Franco-Scots perspectives on unjust(ified) enrichment'

Po-Yuan Chang  'Intentionally Inflicted Mental Harm'

Books and Reports

Peter Birks, Eric Descheemaeker, The Roman Law of Obligations, (Oxford University Press, 2014)
Abstract: The Roman Law of Obligations presents a series of lectures delivered by the late Peter Birks as an introductory course in Roman law. Discovered in complete manuscript form following his death, the lectures are published here for the first time. The lectures present a clear conceptual map of the Roman law of obligations, guiding readers through the institutional structure of contract, delict, quasi-contract, and quasi-delict. They introduce readers to the terminology needed to understand the foundations of Roman law, and the conceptual framework of the law of obligations that left an enduring legacy on European private law. The lectures offer an invaluable introduction to Roman private law for those coming to the subject for the first time. They will also make stimulating reading for academics and lawyers interested in Roman law, European legal history, and the lasting influence of Roman law on modern private law.

Eric Descheemaeker, The Consequences of Possession, (Edinburgh University Press, 2014)
Abstract: Possession is a topic which has been researched for centuries, yet there is a surprising dearth of comparative materials and also very little available in English about the law of non-Anglophone jurisdictions. Leaving aside the question of what possession is, this analysis concerns itself with the law's response to 'possession'. The volume comprises contributions from some very distinguished scholars from the civilian tradition (Germany, Italy) as well as the common law (England) and mixed legal systems (Quebec, Scotland, South Africa).

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.

Eric Descheemaeker, The Division of Wrongs: A Historical Comparative Study, (Oxford University Press, 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.

Articles

Eric Descheemaeker, 'Unravelling harms in Tort Law ', (2016), Law Quarterly Review, Vol 132, pp 595-617
Abstract: This article seeks to contrast two ways of articulating the harms that tort law aims to redress. On a dominant, “bipolar”, model, the wrong (breach of duty/violation of a right) is contrasted with the losses that flow from it. These losses are either pecuniary or not, in which case they will boil down to emotional harm. This can be contrasted with a “unipolar” model, whereby the loss or harm suffered by the claimant becomes the diminution of the right considered in itself. This alternative model tends to surface when the first one breaks down, i.e. is incapable of explaining the outcome of court decisions. While the two models are both coherent (albeit not to the same extent), they ought not to be combined because of conflicting rationalities; neither is it helpful to meander between them the way courts (and legal scholars) tend to do. The article examines the way the two models relate to one another and considers some implications the choice between them has, in particular in terms of our understanding of the concept of loss and the relationship between compensation and vindication in tort law.

Eric Descheemaeker, 'Review of C. van Dam, European Tort Law (2nd ed, Oxford, 2014) ', (2016), Revue trimestrielle de droit civil, Vol 115, pp 494-498

Eric Descheemaeker, 'Review of K. Barker, R. Grantham and W. Swain (eds), The Law of Misstatements. 50 Years on from Hedley Byrne (Oxford, 2015) ', (2016), Revue trimestrielle de droit civil, Vol 115, pp 226-230

Eric Descheemaeker, 'Three Errors in the Defamation Act 2013 ', (2015), Journal of European Tort Law, Vol 6, pp 24-48
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, '‘A man must take care not to defame his neighbour’: The Origins and Significance of the Defence of Responsible Publication', (2015), University of Queensland Law Journal, Vol 34, pp 239-264
Abstract: This article (written from an English perspective) explores two relatively overlooked dimensions of the defence of ‘responsible publication on a matter of public interest’ which was recognised by the House of Lords in the 1999 case of Reynolds v Times Newspapers and then put in a statutory form — using obfuscating language — by the Defamation Act 2013 (UK): namely, its origins and its significance in terms of tort theory. On the first point, the roots of the idea of responsible publication, in the sense that there should exist reasonable ground to believe the defamatory matter to be true, are traced into Australian law all the way down to Macintosh v Dun in 1906 and the Defamation (Amendment) Act 1909 of New South Wales. Concerning the second, the emphasis is put on the taking over of large swathes of defamation by what is essentially a negligence standard, historically alien to a cause of action that was entirely controlled by malice (and its rebuttal). Beyond the tort of defamation, this represents a milestone in terms of the unification of the standard of liability across the divide between patrimonial rights and personality rights.

Eric Descheemaeker, 'The harms of privacy ', (2015), Journal of Media Law, Vol 7, pp 278-306
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 privacy actions and (iv) the relationship between compensating and vindicating the right to privacy.

Eric Descheemaeker, 'Mapping Defamation Defences ', (2015), Modern Law Review, Vol 78, pp 641-671
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, 'Review of P. Mitchell, A History of Tort Law 1900-1950 (Cambridge, 2015) ', (2015), Modern Law Review, Vol 78, pp 695-699

Eric Descheemaeker, 'Old and New Learning in the Law of Amende Honorable ', (2015), South African Law Journal, Vol 132, pp 909-939
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, 'Review of J. Neethling and J. Potgieter, Law of Delict (7th ed., Durban, 2015) ', (2015), Revue trimestrielle de droit civil, Vol 115, pp 990-3

Eric Descheemaeker, 'Review of K. Barnett and S. Harder, Remedies in Australian Private Law (Cambridge, 2014) ', (2015), Revue trimestrielle de droit civil, Vol 114, pp 749-751

Eric Descheemaeker, 'Review of A. Burrows, D. Johnston and R. Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford, 2013) ', (2015), Revue trimestrielle de droit civil, Vol 114, pp 245-249
Abstract: A book review of Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry, edited by Andrew Burrows, David Johnston and Reinhard Zimmermann

Eric Descheemaeker, 'Review of C. Mitchell and P. Mitchell (eds), Landmark Cases in the Law of Restitution (Oxford, 2006)/Landmark Cases in the Law of Contract (Oxford, 2008)/Landmark Cases in the Law of Tort (Oxford, 2010)/Landmark Cases in Equity (Oxford, 2012) ', (2015), Revue trimestrielle de droit civil, Vol 114, pp 489-92

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, Vol 113, pp 231-235
Abstract: A book review of Remedies for Breach of Contract: A Comparative Analysis of the Protection of Performance, by Solène Rowan.

Eric Descheemaeker, 'Review of A. Burrows et al., A Restatement of the English Law of Unjust Enrichment (Oxford, 2012) ', (2014), Revue trimestrielle de droit civil, Vol 113, pp 742-746

Eric Descheemaeker, 'New Directions in Unjustified Enrichment: Learning from South Africa?', (2014), Edinburgh Law Review, Vol 18, pp 414-16

Eric Descheemaeker, 'Tort Law Defences: A Defence of Conventionalism', (2014), Modern Law Review, Vol 77, pp 493-512

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, Vol 112

Eric Descheemaeker, 'De la structure de la responsabilité: Réflexions comparatistes autour de Torts and Rights', (2013), Revue internationale de droit comparé, Vol 2013, pp 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, '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, pp 470-73

Eric Descheemaeker, 'Review of C. Barnard et al. (eds), Tony Weir on the Case (Oxford, 2012) ', (2013), Revue trimestrielle de droit civil, Vol 112, pp 722-23

Eric Descheemaeker, 'Three Keys to Defamation: Media 24 in a Comparative Perspective', (2013), South African Law Journal, Vol 130, pp 435-48

Eric Descheemaeker, 'Quasi-contrats et enrichissement injustifié en droit français ', (2013), Revue trimestrielle de droit civil, pp 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, 'Forum Privatrechtsharmonisierung:: Eine europäische Öffentlichkeit?', (2012), Zeitschrift für Gemeinschaftsprivatrecht, Vol 10, pp 286-291

Eric Descheemaeker, '‘Veritas non est defamatio’?: Truth as a Defence in the Law of Defamation', (2011), Legal Studies, Vol 31, pp 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, 'Review of E. Metzger (ed), David Daube: A Centenary Celebration (Glasgow, 2010) ', (2011), Revue historique de droit français et étranger, pp 127-28

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, Vol 128, pp 452-478
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, 'Review of L. McNamara, Reputation and Defamation (Oxford, 2007) ', (2010), Law Quarterly Review, pp 642-44

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, Vol 73, pp 1086-1089

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, Vol 73, pp 898-902

Eric Descheemaeker, 'Obligations quasi ex delicto and Strict Liability in Roman Law ', (2010), Journal of Legal History, Vol 31, pp 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, pp 435-457
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, Vol 18, pp 133-139
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, 'Protecting Reputation: Defamation and Negligence', (2009), Oxford Journal of Legal Studies, Vol 29, pp 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, 'The Roman Division of Wrongs: A New Hypothesis', (2009), Roman Legal Tradition, Vol 5, pp 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, 'La question de la fusion de la common law et de l'equity en droit anglais: à propos de l'ouvrage Equity de Sarah Worthington', (2007), Thémis, Vol 41, pp 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, 'Review of P. Glenn, On Common Laws (Oxford, 2005) ', (2007), Oxford University Commonwealth Law Journal, Vol 7, pp 125-35
Abstract: In this highly stimulating short book, Professor Glenn of McGill University revisits the old notion of a common law, including in his study not only the English common law, cradle of the namesake tradition, and the pan-European ius commune, but also the various national or transnational common laws which, until the age of codification, existed (first in Europe and then in the world) in a dialogical relationship with the various local laws that they encountered. Professor Glenn’s book attempts to re-interpret their historical relationship in accordance with the principle of subsidiarity, whereby at every level the general law would defer to the particular. By so doing, the author puts forward an explanatory model of ten centuries of legal developments in terms of layered, ‘relational’ common laws which cohabited harmoniously. This, it is argued by the reviewer, should be regarded as an ideal-type with which much, but clearly not all, of the historical data fits; and whose eirenic nature is probably inseparable from the Québécois context in which the book was written.

Eric Descheemaeker, 'Review of S. Worthington, Equity (Oxford, 2003) ', (2006), Revue internationale de droit comparé, Vol 58, pp 1025-33

Eric Descheemaeker, 'Les héritiers de Lenel: la chaire royale de droit romain à Oxford (1948-2004)', (2006), Revue historique de droit français et étranger, pp 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, 'Review of E. Schrage (ed), Negligence. The Comparative Legal History of the Law of Torts (Berlin, 2001) ', (2004), Revue internationale de droit comparé, Vol 56, pp 261-70

Eric Descheemaeker, 'In memoriam: Peter Brian Herrenden Birks (1941–2004)', (2004), Revue internationale de droit comparé, Vol 56, pp 961-67

Eric Descheemaeker, 'Review of P. Birks, Unjust Enrichment (Oxford, 2003) ', (2004), Revue internationale de droit comparé, Vol 56, pp 715-24

Eric Descheemaeker, 'Review of D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, 1999) ', (2004), Revue internationale de droit comparé, Vol 56, pp 1005-15

Eric Descheemaeker, 'Review of G. Treitel, Some Landmarks of Twentieth Century Contract Law (Oxford, 2002) ', (2003), Revue internationale de droit comparé, Vol 55, pp 492-94

Eric Descheemaeker, 'Mapping the Common Law: On a Recent English Attempt and its Links with Scottish Jurisprudence', (2003), Juridical Review, pp 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, 'Review of I. Schwenzer and G. Hager (eds), Festschrift für Peter Schlechtriem zum 70. Geburtstag (Tübingen, 2003) ', (2003), Revue internationale de droit comparé, Vol 55, pp 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, Vol 55, pp 1025-28

Eric Descheemaeker, 'Review of P. Birks (ed), English Private Law (Oxford, 2000) ', (2002), Revue internationale de droit comparé, Vol 54, pp 869-71

Eric Descheemaeker, 'Faut-il codifier le droit privé européen des contrats ? ', (2002), McGill Law Journal, pp 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 (ed.) La socialisation de la réparation (Bruylant 2015) 237-246

Eric Descheemaeker, 'Truth and Truthfulness in the Law of Defamation ' in Anne-Sophie Hulin, Robert Leckey, Lionel Smith (ed.) 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 The Roman Law of Obligations (Oxford University Press 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 (ed.) The Consequences of Possession (Edinburgh University Press 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, 'Solatium and Injury to Feelings Roman Law, English Law and Modern Tort Theory' in Eric Descheemaeker, Helen Scott (ed.) Iniuria and the Common Law (Hart Publishing 2013) 67-96
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, Helen Scott, 'Iniuria and the Common Law ' in Eric Descheemaeker, Helen Scott (ed.) 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, 'Fusionner droit strict et équité aperçus sur le droit anglais de la responsabilité civile' in Olivier Beaud, Denis Baranger (ed.) Annuaire de l'Institut Michel Villey (Dalloz 2010) 91-107

Eric Descheemaeker, 'The Publications of Peter Birks (1969–2005) ' in Andrew Burrows, Alan Rodger (ed.) Mapping the Law (Oxford University Press 2006) 641-51
Abstract: 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

Working Papers

Eric Descheemaeker, 'The Harms of Privacy ' 2015
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, 'Commentaire du projet d'ordonnance du Ministère français de la justice: IV - Enrichissement injustifié' 2015

Eric Descheemaeker, 'Commentaire du projet d'ordonnance du Ministère français de la justice: III - Paiement de l'indu' 2015

Eric Descheemaeker, 'Commentaire du projet d'ordonnance du Ministère français de la justice: I - Les sources d'obligations' 2015

Eric Descheemaeker, 'Commentaire du projet d'ordonnance du Ministère français de la justice: II - Gestion d'affaire' 2015

Eric Descheemaeker, 'Three Errors in the Defamation Act 2013 ' 2014
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 ' 2014
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 recognise 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, i.e. justify the infliction of the injury by the pursuit of a greater good; (ii) defences which exclude blameworthiness, i.e. excuse the defendant because he is not to blame 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 ' 2014
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, 'Introduction to Peter Birks' Roman Law of Obligations ' 2014
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, 'Truth and Truthfulness in the Law of Defamation ' 2014
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, 'The Internationalisation of Legal Education: Scottish Report' 2014
Abstract: National Report for the 19th Congress of the International Academy of Comparative Law, Vienna, 2014.

Eric Descheemaeker, 'The Consequences of Possession ' 2013
Abstract: This article 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, 'Defamation Outside Reputation: Proposals for the Reform of English Law' 2011
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, ''A Man of Bad Character has Not So Much to Lose': Truth as a Defence in the South African Law of Defamation' 2011
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.