Hadley v. Baxendale and Other Common Law Borrowings from the Civil Law

Abstract

Is this recognition deserved? To some extent, inarguably it is. But is the judicial "inventiveness" ascribed to the Hadley court fully warranted? Was it created out of whole-cloth by ingenious practitioners of the common law? This Article seeks to answer that question, though the title perhaps eliminates any attempt at suspense, for the civil law was most assuredly referenced for the Hadley rule. After this initial introduction, Part II of this Article will discuss the facts and holding of the Hadley case, and describe fully the civilian sources for the rules announced by the Hadley court. Part III will discuss generally the concept of legal transplants, and the interrelation between the development of a particular legal rule and the context of the society in which it is promulgated. Part IV will present, by way of illustration and example only, a handful of other instances in which Anglo-American courts have borrowed from the civil law for purposes of "creating" new common law doctrine. Part V will offer some concluding remarks.