The American form of common law did not create principles that were noticeably different from those already existing at the time of the revolution, except in one respect only. In England, the formal contract, written and stamped with the seal, called specialty, had become commonplace, the distinctive features of which were that the author was absolutely obliged with it according to the letter and that its validity did not require the so-called consideration (i.e. the promise of any consideration made by the other contracting party, in consideration of which the former undertakes; this had been assimilated to the so-called quid pro quo – an expression proper to England – that is, the thing that the plaintiff had to prove that he had given to the defaulting defendant and that in substance he claimed from him, when according to Germanic and feudal conceptions the action against the debtor was configured in a manner not different from a real action). In the United States, however, the importance of these sealed contracts rapidly diminished. It soon became the rule of law that the seal constituted only a presumption or a clue, admitting evidence to the contrary, of the consideration and, in some cases by law, the seals were declared entirely ineffective. It can be said in general that almost no contract now requires the seal, although the custom of affixing it (mostly, using a red gummed paper) or indicating, next to the signature, the locus sigilli(abbreviation: l. S.). On the other hand, the characteristic rule of the common law that consideration is necessary for the validity of all contracts entering into an obligation, and that an entirely free promise, even between relatives, does not constitute an obligation, is valid throughout the United States, except in Louisiana. But the concept of consideration it has undergone numerous modifications since it was accepted and exhibited in English courts around 1600 and in the United States it is generally conceived less rigorously than in England. Moral obligation is more widely recognized than in England and, invoking the idea of estoppel (the rule by which a party is “stopped” or prevented from contradicting itself or being contra proprium factum) where the exception of the lack of consi – deration is excluded.
The greater development given in the United States, in comparison with England, to the category of “quasi-contracts” is part of the same historical process. Indeed, it is precisely in America that the term has acquired real diffusion, since in England these obligations are still commonly incorporated in the category of “implicit contracts”; and so also in certain American jurisdictions. The American courts are more inclined than the British to grant exemptions (relief – exemption from the strictly legal consequences of an act) in order to prevent unjust enrichment, even where the plaintiff was at fault; and likewise, to grant restitution for reasons of error or violence and threat (duress) even if the error is “one-sided” or if the fear inflicted is not what a person of normal courage might feel. In England, people are more traditional and more rigid.
As regards tort or civil wrong (literally “civil damage”; wholesale, ex delicto and almost ex delicto obligations of Roman law), American law has not set out in new ways. The form itself, as the technical name of a source of bonds, dates back to the 10th century. XIX. Previously, there had been a list of actions, specifically named, but no clear distinction was made between tort and contract, because also the so-called assumpsit action (from the term used by the plaintiff to indicate the obligation of the obligee), which was the normal action aimed at obtaining the performance of a contract, resulted from a criminal action (trespass). The procedural reform begun in 1848 made naming the action superfluous, but it was still necessary to refer the claim for compensation to the categories created by the old system of naming the various “wrongs”. In the United States, the tendency to grant reparation in any case in which a person has suffered damage caused by others has increasingly established, but a general and extensive definition of the damage has not been reached, such as the famous art. 1382 of the French civil code (1151 and 1152 of the Italian civil code). English common law was also followed in its limitation of the civil liability of a person. There is no general responsibility of parents or employers for their dependent persons, unless the principle of representation can be invoked in some way.
But the rapid spread of steam and electric means of transport and, more recently, the extraordinary expansion of the use of automobiles has meant that negligence assumed preponderant importance among all the “wrongs”. In this field, two rather contrasting tendencies have acted. On the one hand, the courts refused to measure the negligence, and therefore to grant any compensation, if the injured party was also negligent, albeit to a much lesser extent than the other. But on the other hand, it has been found necessary, in the interest of public safety, to impose an absolute liability for negligence under certain conditions, in which the responsibility for not avoiding harm clearly lies with the defendant, or when there has been a violation of a specific obligation imposed by law.
Due to a peculiarity of historical evolution, common law did not grant action for manslaughter. This was remedied in England in the mid-century. XIX, with a law (Lord Campbell’s Act) that has been followed in many American jurisdictions. These laws grant compensation, usually only to surviving family members.
The theory of compensation for negligent actions as for contracts is strictly compensatory, damages and interest. In fact, however, in the case of torts a criminal element insinuates itself and, in general, the juries grant higher sums for these sums than for simple contractual violations. By law, “punitive” or “exemplary” compensation is often granted when the damage was voluntarily committed. But the fact that the compensation is conceived as a simple reparation has helped prevent the merger of the civil action for damages with the criminal action. Many crimes also involve harm to people, but in the United States the two things are kept absolutely distinct and there are different trials, before different juries and with a somewhat different procedure. A sentence in one of the courts does not constitute a res judicata in the other.
The frequency of actions for damages deriving from negligence has led to the extension of the insurance against civil or “public” liability (public liability), especially for motorists. Knowing that in most actions the payer is the insurance company rather than the defendant has a real influence on the jurors, although attempts are sometimes made to prevent them from learning about it. Thus, the losses caused by negligence are shared among the public, because the expenses of this insurance system end up having repercussions on the general level of prices.
