Ancient Legal Doctrines Involved in Negligence Cases: Comments and Simplified Explanation

I humbly presumed that it is widely understood that the lack of diligence is the essence of what is called “Negligence”, the term then signifies as the absence or the lacking of caution which an ordinary man of common sense should observe.

Thus, I defined “Negligence” as a failure of what a prudent man anticipates; a failure of apprehension on the reasonable consequence of an act; the failure in the anticipation of a natural result of an act or omission.

In negligence cases, there are so many corners of events from which an incident might be interpreted in accordance with the circumstances of time, place and some other situations. Almost all of the principles involved date back to the time of ancient civilizations, most of them were from Rome, that is still useful even to this day of our time. Only that not all of these doctrines were accessible to our direct understanding – meaning, these doctrines in generality are not easy to understand.  Hence, to explain them in the simpliest term is a necessity in this attempt. 

Before anything else, we will try to discover in the first place the two types of negligence; it is the negligence of doing [it means, to constitute a negligence, the actor must have done a negligent act] and the negligence of non-doing [it means, to constitute a negligence, the actor failed to observe some standards dictated by human reasoning. It is also called negligence of omission].

THE LAST CLEAR CHANCE DOCTRINE

The doctrine of last clear chance refers to the situation whereby a party who had the last opportunity to avoid or to escape the danger is considered to be negligent when he failed to evade from the impending harm.

Illustration: Mario Gitubol was properly driving his car in the proper lane; when he observed that a car in opposite direction was running in the same lane of the road, Mario Gitubol did not bother to take the other lane on the basis of his belief that he will be favored in the courts of law in case of collision case because he is driving his car in the proper lane. The two cars collided and the last clear chance is in him who had the opportunity to avoid the incident.

Comment: Mario Gitubol shall be considered negligent because the accident would not have occured had he avoided the car that was running in his lane. He had the last chance to avoid the mishap; the fact that he was running his vehicle in a right lane does not totally cleared him from being negligent. The doctrine of last clear chance appeared to be unfair for those who were prudent; In my opinion, the person who detects danger and failed to avoid it is not and never to be considered as prudent. In fact, it is the most reasonable doctrine since our mind dictates the avoidance of danger rather than asking the sympathy of the public that he was responsibly driving his vehicle in the proper lane.

DOCTRINE OF CONTRIBUTORY NEGLIGENCE

The doctrine of contributory negligence is also called “the shared responsibility rule” [It is only my view]. This refers to a situation where an unfortunate events [rhetorical term for accident] cannot exist if not by the voluntary act of the parties.

Illustration: Clarina participated in a bungee jumping adventure in Manipis Cliff. However, before the jumping adventure, the head of the team informed Clarina that the bungee jumping rope might not be capable of holding her because of her weight [probably 500 pounds]. Clarina suppressed the dissuasion of the team leader on her belief that the rope might even hold an elepant, hence jumped into deep height and vanished after the rope looses.

Comment: Clarina contributed to the negligence of the team leader. The negligence of the team master arises at his failure to prevent Clarina from participating, but Clarina also becomes negligent in her assertion to take part in the adventure considering the suggestion of the team master.

Purpose: The reason of knowing this doctrine is to minimize the liability of a party charged for negligence.

DOCTRINE OF VOLENTI NON FIT INJURIA

The doctrine is also known as “the assumption of risk rule”.  The latin “volenti non fit injuria”  suggests a concept about ”self inflicted injury”. This refers to the injury caused by the injured himself.

Illustration:  Kobe was a ticket collector of a train bound from Brisbane to Sydney, when he asked a certain Dingwall to present the ticket the man run away to the nearer window and jumped off from the running train which resulted to Dingwall’s untimely death.

Comment: The absence of a ticket, the fear Dingwall entertained in his mind, and the act of jumping from the train are all his fault. The train cannot be said negligent because the procedure of asking for a ticket is a transportation standard in all civilized place.

DOCTRINE OF DAMNUM ABSQUE INJURIA

Damnum Absque Injuria literally means “damage without legal injury”. This doctrine presupposed the existence of a damage, only that there is no law in the determination of the offender party. Meaning, there is damage but there is no injury on the reason that the cause is not a result of a negligent act.

Illustration 1: Connor was driving a truck together with all his classmates. The truck was suddenly struck by a lightning that caused it to bump at a place full of people.

Comment:  Connor cannot be said to be negligent because the cause is not his negligent act but a sudden distraction that stops the natural consciousness of every man at the time of the incident. There is no injury although there is damage because the term “injury” brings the concept as being the result of a deliberate or a negligent act.

Illustration 2: Constancio Gacalibang is a stateless person who was killed in Iraq while he was roaming around in the City of Baghdad. In International Law, a stateless person is considered as a person owned by nobody. Hence, Mr. Gacalibang’s death maybe a damage to his family but there is no legal injury against any state.

Comment:  The doctrine of damnum absque injuria is applicable to the case of Constancio Gacalibang because there is no state considered to be the injured party in case of death of a stateless person. In International Law, a state is not authorized to assert on the right of a person in another state when the person is not its citizen. This is because a state has no interest and has no standing in another territory for a person not its national. The status of stateless may be acquired by a person when he was born at a place who grants only citizenship by blood [jus sanguinis] and his parents were from the place who grants only citizenship by land of birth [jus solis].

Example of Statelessness:        X, an American citizen, gave birth to Y while having her vacation in Spain. Y is considered a stateless person because America does not grant citizenship to any child of its citizen when the child is born outside America [America adheres to Jus Solis], and Spain does not grant citizenship to any child unless born of both Spanish parents [Spain adheres to Jus Sanguinis].

DOCTRINE OF FORCE MAJEUR

Force majeur is referring to a “strong force” which a person has no control. Something which is beyond the control of man or anything under uncontrollable circumstance.

Illustration: Jose was sued for failure to deliver a masterplan to Meacham Corporation. The failure to deliver was due to the destruction of a bridge connecting one place to another which occurred many weeks before the obligation to comply takes place.

Comment: Jose is not liable for his failure because it was not caused by his negligence but by some circumstance beyond his will and capability. This is a situation where an ancient phrase could be applied – “NO ONE IS OBLIGED TO COMPLY AN IMPOSSIBLE DUTY”.

RESPONDEAT SUPERIOR

Respondeat superior is a delegated responsibility rule. It means that a negligent act of a person is deemed to be coming from the authority who commissioned the person’s work. It suggests that the act of a servant is considered to be an act of the master.

Illustration: A security guard of a Mansion owned by Mrs.Gikegwa shot an intruder after refusing to yield on a “stop order”. The security guard was charged of injury.

Comment: The act of a security guard is considered as the act of the owner who hired him because his function is hinged upon a contract to do or to perform an act of initiative to protect the person who hired him. Hence, his act is considered as an act with permission from authority. The owner should answer in behalf of the actions taken by the security guard.

PROXIMATE CAUSE RULE

This refers to the first cause of event. It refers to the adequate and efficient cause which naturally produce the logical result.

Illustration: A driver of a bus was hit by a solid object thrown by one passenger who had a fight with another passenger which resulted to the collision with another vehicle.

Comment:  The proximate cause of the incident is not the negligent act of the driver because the first cause of the event was coming from a passenger who threw a solid object that caused the distraction of the driver’s driving concentration which resulted to the collision with another vehicle.

With the hope that this contribution be of intellectual help to our evaluation and judgment on events pertaining with human imprudence. -Barrister79

The Salient Features of Niccolo Machiavelli’s “The Prince”

Niccolo Machiavelli

Born in Florence, Italy on May 3, 1469. He received a quality and classical education typical of the humanist traditions of Renaissance Italy. He became close friends with Cesare Borgia of the powerful Borgia family. Mac [the name used by barrister79 for Niccolo Machiavelli]  lived at a time of continuous political conflict.

Salient Features of “The Prince”

1. Moral principles must yield to every circumstance, especially in such cases where sordid [dirty] and inhuman actions may  be required.

2. It is imperative to do anything necessary to maintain and to hold power.

3. The “Prince” must not be hated, he must endeavor to avoid hatred. It is best for him to be feared and loved, however, if both cannot be possible it is better to be feared than loved.

4. War and ruthlessness are requirements for actual survival.

5. It is understood that apparent cruelties and hostilities may be essential to maintaining stability and power; the end justifies the means.

6. The wisdom to seek advice and counsel only when it is needed.

7. Ethics and politics has no connections, it is entirely different and distinct from each other.

8. The “Prince” should endeavor to be seen as compassionate, trustworthy, sympathetic, honest, and religious. Although in realities, his duties are rarely any of these.

9. The rule of law will yield to the rule of force; the rule of law can only move when it has a considerable amount of force.

10. The “Prince” should maintain a good relation with the people.

Annotation: The significance of propaganda becomes apparent. Its importance is to neutralize the unrealistic expectations of the people. The creation of myths is necessary, people always love to entertain folklores.

11. It is a sin to hamper the people’s laws and customs. If the “Prince” would change it, he may do it either indirectly or gradually. The aim is to allow men to live quietly.

12. A virtuous “Prince” must protect and ally his weaker neighbors and weaken the stronger.

13. He who causes another to become powerful ruins himself.

14. In all difficulties of governance, the only effective means of establishing rule is by force.

15. The “Prince” relying solely on fortune has little chance of survival.

16. The prophetic “Prince” should not rely only on his prophetic sermons. [This was a lesson taken by Mac from the situation of Girolamo Savonarola, a friar of Florence who relied too much with his oratory]

17. All armed prophets have succeeded and all unarmed ones have failed; people are by nature changeable.

18. A “Prince” must group nobles according to whether they support him or not. The ambitious and cunning nobles should be looked upon as enemies to be carefully watched.

19. Support from the subjects is easily accomplished by not doing them harm or by not placing them in threat.

20. In fortifying a city, during stress, a virtuous “Prince” must keep the morale of his subjects high, while removing all dissenters.

21. The “Prince” must know his people, the cultures, the language, the territory and the military.

22. Don’t rely on mercenary armies because they don’t have loyalties. Their motivation to fight is for money. [Observation: By common sense, there is an element of fear of a counter-offer]

23. Don’t rely on auxiliary armies because they are more dangerous than mercenaries. They are united and controlled by competent commandants [Observation: Auxiliaries are considered dangerous because they are borrowed from an ally which may have a military business with the enemies; its possibilities are anchored on the fact that they are controlled by leaders of which the ally has no control]

24. A “Prince” who strives after goodness in all his acts is sure to come to ruin, since there are so many men who are not good.

25. The only ethics that matters is one that is beneficial to the “Prince” in dealing with the concerns of his state.

26. If a “Prince” is overly generous to his subjects, appreciations will be lost because they will only greed for more. Besides, over-generous is not economical – it will only result in grief. Building up a reputation of generosity has a little importance.

27. To avoid hatred, do not interfere with the property of the subjects, their women, or the life of somebody without proper justification.

28. For a “Prince” who leads his own army, it is imperative for him to observe cruelty because that is the only way he can command his soldiers’ absolute respect. [Annotation: This is a lesson Mac learned from Roman history on the armies of Hannibal and Scipio]

29. Between two warring states, it is wiser to choose a side rather than be neutral.

      Reasons: a.] If your allies win, you benefit whether or not you have more power than they have;

                    b.] If you are more powerful, then your allies are under your command; if your allies are stronger, they will always feel a certain obligation to you for your help;

                    c.] If your side loses, you still have an ally [Observation: A loser ally is more advantegeous than having no ally]

30. It is wiser for a “Prince” not to ally with a stronger force unless compelled to do so. It is an important virtue to have the wisdom to discern what ventures will come with the most reward and then pursuing it courageously.

31. The selection of quality servants is reflected directly upon the “Prince”’s intelligence, so if they are loyal the “Prince” is considered wise. [Observation: An impaired servant does not mean lack of quality, what is important is loyalty. Dracula had a perfect servant  although Reinhardt is not so mentally fit]

32. There are three types of intelligence:

      a.] kind that understands things for itself  – which is excellent to have.

      b.] kind that understands what others can understand – which is good to have.

      c.] kind that does not understand for itself nor through others – which is useless to have.

33. The “Prince” should avoid flatteries and flatterers.

34. A prudent “Prince” should have a select group of wise counselors to advise him truthfully on matters only that he inquires of. Any other opinions should be ignored.

35. The “Prince” should be wise enough to be firm and should avoid changing of the minds.

My Analysis on the Territorial Application of Criminal Law

The general practice of every country pertaining with the application of their penal [criminal] laws is always TERRITORIAL. As an international principle, the territorial application of penal laws is a standard which could be traced back to the ancient time in Rome, China, Babylon, Egypt, Persia, Greece, and other great civilizations.

The phrase “territorial application of penal law” means that the law of a state which defines crimes and punishments shall always be applied within its own territory. Meaning, a violation or infraction of the criminal law shall be punished in the territory where it was committed.

Illustration of the territorial application of criminal law:

              Joseph Smith [an American national] shot and killed Mao Tse-Tung [a Chinese citizen] while having a short speech in Tokyo, Japan.

              In this situation, the international standard on territorial application of criminal law requires that the culprit [Joseph Smith] should be criminally tried in the criminal tribunal of Tokyo, Japan  and not somewhere else because the felony [referring to the killing of Mao Tse-Tung] was committed in the place where the incident took place. This is the “Territorial Application of Criminal Law”; the criminal law of the territory will be applied when the crime is committed in the very same territory.

However, the international standard on territorial application of criminal law cannot always be applied in some peculiar instances. Indeed, there are situations in human events where a widely accepted principle does not apply.

Let us examine another illustrations:

ILLUSTRATION 1:          Vladimir Lenin [a Russian national] fired his automatic pistol in the boundary of Russia and Poland, Carol Wojtyla [a citizen of Poland] was hit by the slug that went off from Lenin’s pistol that caused Wojtyla’s instant death.

Can the territorial application of criminal law be applied in this case? If yes, where can Lenin be tried, in the place where he pulled the trigger[Russia]? or in the place where the death of the victim occur [Poland]?

This is a difficult situation of territorial application considering that Poland has no jurisdiction on the person who caused the death of their citizen; on the other hand, Russia could only charge the offender for violation of their fire-arms law [if there be any] and not for homicide considering that Russia does not have legal business on the death of a person located in Poland. The offender cannot also be tried for the crime of homicide both in Russia and Poland because it will result to a legal problem concerning with double jeopardy and absence of jurisdiction. I also do not consider it as a continuing crime because it is inherent in every bullet [slug] to travel from one place to another, and to note that one country has no jurisdiction to its neighboring country.  I believed that ”extradition” could not be applied  either because it is only applicable when a person escaped from the place where he committed a crime; in this incident, Lenin never escaped from Poland’s jurisdiction. We will leave it to wisdom of their courts. 

ILLUSTRATION 2:         Tony Blair [British] was on board of a private yatch owned by George Bush [American] with Fidel Castro [Cuban] bound for Australia from the Philippines. While in the ocean [high seas not under any territorial jurisdiction of any country], Blair and Castro had an argument over Clinton’s viagra. Thereby, due to his outrage, Castro stabbed Blair with his sharp dagger which caused his untimely death.

Under the international standard of territorial application of criminal law, a ship or an airship is considered as a territorial extension of the place where the ship or the airship was registered. In this hypothetical case, there is no mention of a registration of a private yatch owned by George Bush. When a private yatch is not registered [because its non-registration is not imposible], it can never be considered as an extension of a particular country. The place of departure cannot be said to have the jurisdiction of the case because the felony was committed outside its territorial boundary, neither could the place of destination assume jurisdiction because the act of stabbing and the death of Blair took place beyond its territorial limits. The host country only received the results of the crime [the dead body, the sharp dagger, the offender] and not a party to the crime itself, therefore, the receiving state cannot acquire sovereign jurisdiction between Blair and Castro. 

In this case, I believed that the problem on territorial application of criminal law could only be resolved under diplomatic resolution.

ILLUSTRATION 3:         Jacinto Alforque, a Spanish Ambassador to Pakistan, slapped Pervez Musharraf over an argument concerning with the question on whether a blind could run faster than a cripple. This is apparently a criminal case for injury, but Jacinto Alforque cannot be tried for any case in Pakistan court because of diplomatic immunity. Under the international law, territorial application of criminal law cannot be applied to those who represent a sovereign state. Meaning, ambassadors are immune from suit and there shall not be any case to be filed against him in the place where they commited the offense.

Under the international law, diplomatic officials could only be disciplined by the state who sent them to their diplmatic mission.  Since the municipal law requires that criminal offenders could only be tried in the place where the crime is committed, the ambassadors could not also be tried in the sending state for the crime he committed in the receiving state. The sending state cannot acquire jurisdiction over the criminal case of their ambassadors because of jurisdictional issues although it can administratively discipline their diplomatic officials, administrative liability may be determined from the degree of the diplomatic official’s misconduct while serving on a mission but it could never be treated as his criminal liability. The sending state cannot also impose criminal sanctions on the reason of territorial application of criminal law.

There are more than a thousand controversies affecting the territorial application of penal laws; all of these will just prove that the laws are not flawless after all.

THE FIRST CONSPIRACY: Hermeneutic Analysis

Paul Whelmer Alforque, Departamento de Filosofia, 1997, Camara de Pensador.

The Honorable Magistrates, before this dignified institution, I submit the structure of my thesis anchored on the third chapter in the book of Genesis, focused on the Fall of Man, which says:

Genesis 3

The Fall of Man

 1 Now the serpent was more crafty than any of the wild animals the LORD God had made. He said to the woman, “Did God really say, ‘You must not eat from any tree in the garden’?”

 2 The woman said to the serpent, “We may eat fruit from the trees in the garden, 3 but God did say, ‘You must not eat fruit from the tree that is in the middle of the garden, and you must not touch it, or you will die.’ “

 4 “You will not surely die,” the serpent said to the woman. 5 “For God knows that when you eat of it your eyes will be opened, and you will be like God, knowing good and evil.”

 6 When the woman saw that the fruit of the tree was good for food and pleasing to the eye, and also desirable for gaining wisdom, she took some and ate it. She also gave some to her husband, who was with her, and he ate it. 7 Then the eyes of both of them were opened, and they realized they were naked; so they sewed fig leaves together and made coverings for themselves.

 8 Then the man and his wife heard the sound of the LORD God as he was walking in the garden in the cool of the day, and they hid from the LORD God among the trees of the garden. 9 But the LORD God called to the man, “Where are you?”

 10 He answered, “I heard you in the garden, and I was afraid because I was naked; so I hid.”

 11 And he said, “Who told you that you were naked? Have you eaten from the tree that I commanded you not to eat from?”

 12 The man said, “The woman you put here with me—she gave me some fruit from the tree, and I ate it.”

 13 Then the LORD God said to the woman, “What is this you have done?”
      The woman said, “The serpent deceived me, and I ate.”

It is my stand, as could be inferred from the text, that the first great conspiracy took place in the Garden of Eden. I based this perspective on the following circumstances:

One, it is in the book of Genesis wherein Adam and Eve committed the first sin that engraved in human soul.

Two, the Garden of Eden was supposed to be a safe place designed by God for the prime pure human beings and their offsprings.

Three, the Garden of Eden is a paradise for Adam and Eve where God communicate directly to man.

Four, that God being the supreme being has absolute control over the paradise which is designed for the sinless being such as Adam and Eve.

Five, that Adam and Eve were totally innocent before they ate the fruit, having no knowledge of any foolishness nor of any sin of any kind.

Six, that the fruit of the tree of knowledge, when taken, shall give them the malice which capacitates them to discern what is right and what is wrong.

Seven, that prior to the taking of the fruit, Adam and Eve is essentially ignorant on the concept of good and evil, because their minds are supposed to be opened at the time they will be tempted to eat the fruit.

Based on these premises, Honorable Magistrates, I come to an honest yet logical perspectives, that:

One, God is not intending man to exercise their freedom because they have no freedom of choice between right and wrong considering their lack of knowledge on what is right and what is wrong. Adam and Eve were really destined to FALL because they cannot use their good judgment on the pretext of their innocence.

Two, the unfortunate fate of Adam and Eve was really God’s plan. God being the supreme being has an absolute control over the entire paradise, it is within his power to drive off and disperse the Serpent who made the temptation.

Three, with the preordained knowledge that the minds of Adam and Eve were NO MATCH to the shrewdness of the Serpent, yet God allowed the Serpent to occupy a particular place in the paradise and authorized it to communicate with Adam and Eve.

Four, by these virtue, it is my contention that the First Great Conspiracy in human history may have been taken place in the Garden of Eden; Adam and Eve being the victims of the whims and caprices of God and the Serpent, and God and the Serpent being the conspirators and partners of their game out of their own boredom.