¹ “…a person shall be deemed to cause damage by his fault when his fault is the cause, or one of the causes, of the damage…”. This rule may, of course, be cancelled out by the operation of the exception in subsec. (2) to the section.

² “…any person who joins or aids in, counsels, authorizes, commands, procures or ratifies any act done or to be done … by any other person shall be liable therefor”.

³ Hooper, C. A., The Civil Law of Palestine and Transjordan (London, 1938) I, 392.Google Scholar

⁴ This is also the basic approach of Jewish law, according to the rules that one cannot appoint an agent to commit a wrong and that one person is not liable for the wrong committed by another. See Gulak, A., Foundations of Hebrew Law (Heb.) (Berlin, 1922) I, 47.Google Scholar

⁵ As art. 1570 appears in the 11th Book of the Mejelle it was included among the sections revoked by the Israel Agency Law, 1965 (provided they had not been previously revoked, of course). This is not the case as regards art. 1007.

⁶ Cf. Brunner, H., Deutsche Rechtsgeschichte (1892) II, 565Google Scholar; Wigmore, , in 3 Select Essays in Anglo-American Legal History (Boston, 1909) 481–82.Google Scholar For Roman criminal law see the remarks of Ferrini, , Diritto penale romano, Teoria generale (Milano, 1899) 289Google Scholarsq., according to which in Roman law instigation of a crime was regarded as a secondary form of participation in its commission and not as the spiritual fathering of the act. As regards collaboration in a crime under Roman law, see also the recent articles of Chevailler, L., in (1953) 31 Rev. histor. dr. français et étranger, 200Google Scholar, and of Longo, G., in (1958) 61 Bull. Ist. dir. rom., 103.Google Scholar

⁷ 4 Inst.. 317.

⁸ Agency (2nd. ed., 1961) 8. Cf. etiam C.A.W. (Wright) in (1935) 13 Can. Bar Rev. 116, 117; “if the master has consented or authorized a wrong, we do not need any agency doctrine to render him liable.”; Conant, M., “Liability of Principals for Torts of Agents” (1968) 47 Nebr. L.R. 42.Google Scholar

⁹ Op. cit., 184.

¹⁰ Joint Torts and Contributory Negligence (1951) para. 4, p. 6.

¹¹ Vicarious Liability in the Law of Torts (Heb.) (Jerusalem, 1964) 116–18.

¹² Agency (London, 1961) 180.

¹³ Cf. Lewis v. Read (1845) 13 M. & W. 834; Freeman v. Rosher (1849) 13 Q.B. 780; Marsh v. Joseph [1897] 1 Ch. 213.

¹⁴ For a view which suggests opposition to the accepted approach see Atiyah, P.S., Vicarious Liability in the Law of Torts (London, 1967) 290.Google Scholar

¹⁵ Cf. Powell, op. cit., 5: “…an agent is a person who has been instructed by the principal to represent him [the principal]. These instructions are called the agent's authority.”

¹⁶ But see the interpretation given to this provision by Landau, J., in Tokolowski v. A.G. (1965) (I) 20P.D. 567, at 569.Google Scholar

¹⁷ Cf. Pollock, , Torts (8th. ed. 1908) 596.Google Scholar

¹⁸ Cf. Williams, G., Joint Torts etc., cit., 5.Google Scholar

¹⁹ Pace Stoljar, op. cit., 181: “…ratification in tort is anyhow superseded by the much wider rule of vicarious liability.”

²⁰ Cf. Atiyah, op. cit., 289, 311, 434 sq.

²¹ Stoljar, op. cit., 182.

²² See, for example, Powell, op. cit., 122: “An unauthorised act, whether lawful or unlawful, can be ratified. That implies that even a tort or a crime can be ratified.”

²³ See also Barak, op. cit.,115–16.

²⁴ As regards ratification see also Fitzgerald, Lord, La Banque J. Cartier v. La Banque d'Epargne (1888) 13 A.C. 111Google Scholar, 118: “ratification…must be in relation to a transaction which may be valid in itself and is not illegal.”

²⁵ Seavey, , Studies in Agency (1949) 79–80Google Scholar: “it is not correct to say that the appointment is void…: one may be hanged for the act one has directed one's agent to do.”

²⁶ For these reasons we do not regard as very convincing either the view of the Restatement, Agency (2nd.) I, 211, that there is no injustice as any resulting liability is self-imposed, or the view of Barak (op. cit., 119): “If the principal is prepared to take this liability (i.e. tortious liability) on himself why should we deprive him of it?” These words might have had some basis if instead of adopting the tort committed or to be committed by A, P's desire was directed to insuring T against damage resulting from the tort or to granting him compensation gratuitously or (according to our Civil Wrongs Law Amendment [Reparation for Bodily Injury] Law, 1964) making good the damage while reserving for himself the right to indemnity from the person liable.

²⁷ Cf. Williams, , Joint Torts etc., cit., 6Google Scholar: “Probably a person would be accounted a principal even when he merely incites a tort without having himself any interest in its commission.”

²⁸ Cf. Stoljar, op. cit., 183.

²⁹ D. 43, 16, 1, 12–14.

³⁰ Cf. Arangio-Ruiz, V., Il mandato in diritto romano (Napoli, 1949) 206.Google Scholar

³¹ See Stoljar, op. cit., 178.

³² As to this presumption in our law of contract, see the Agency Law, 1965, sec. 6.

³³ [1901] A.C. 240.

³⁴ See Spormas v. Helbar (1962) 16 P.D. 1480, 1482; Dahan (Estate) v. The Ministry of Finance (1960) 24 P.M. 365, 370. In both cases this requirement was apparently ignored.

³⁵ Cf. Moon v. Towers (1860) 8 C.B.N.S. 611, 614 (Erle C.J.'s example); Novick v. Gouldsberry (1949) 173 F. 2d 496.

³⁶ Torts (14th ed.) 648, note 60.

³⁷ Torts (14th ed., 1939) 60.

³⁸ Seavey, W.A., “The Rationale of Agency” (1920) 29 Yale L.J. 859CrossRefGoogle Scholar, 891. But see Mechem, , Outlines of the Law of Agency (4th ed.), §214Google Scholar: “The contract cases [of ratification] normally make good sense.… The tort cases, on the other hand, mostly make no sense.” Cf. ibid. §213: “there seems to be no great inherent equity in the result.”

³⁹ As is the case in South Africa. As regards ratification of a delict see Whittaker v. Roos and Bateman, 1912 A.D. 92; Union Government v. Lombard, 1926 C.P.D. 150. Cf. McKerron, R.G., Law of Delict (6th ed., Cape Town, 1965) 83.Google Scholar Indeed in other matters, as well as other aspects of the law of delicts, in which there is a conflict between Roman-Dutch law and the common law, South African law is far from being insensitive to English influence. But here the two systems are identical.

⁴⁰ The term “aharaiut sheluhit”, therefore, seems inexact not only as regards the institution under discussion but also as regards liability for the torts of another. As regards this latter liability see the review of Landau, J. on Barak, , Vicarious Liability in (1965) HaPraklit 538.Google Scholar This term is used when referring to our institution: Witkowski v. Ben-Yaacov (1967) 21 P.D. 260, 263; Weitsman v. Tsuker (1953) 8 P.D. 1412, 1420; Gabai v. Mahmoud Mazan Nagbi (1963) 40 P.M. 61.

⁴¹ Cf. Mechem, op. cit., §214, where he remarks as regards Novick v. Gouldsberry (1949) 173 F. 2d. 496 (a case we have already mentioned) that “The result seems purely punitive. Defendant is punished for being a bad man and glorying in his servant's viciousness.”

⁴² Cf. Brunner, op. cit., II, §93; I, 71, 98; Wigmore, op. cit., 495 sq.

⁴³ On this point see the opposing views of Wigmore op. cit., 497 sq.) who emphasizes the effect of the presumption, and of Plucknett, , Concise History of the Common Law, (5th ed., 1956) 472Google Scholar, who rejects it, though he admits that some suspicion was cast upon the master and he had to prove his innocence.

⁴⁴ We are referring, of course, not to that “authority” which is causative but to that which has no causal effect, such as ratification. For the rejection of its effect see Williams, G., Criminal Law, General Part (2nd ed., 1961) §91, p. 267Google Scholar; §123, p. 362, n. 1. However, for the opposite approach see Powell, op. cit., 122; Fridman, G.H.L., Agency (2nd ed., 1966) 47.Google Scholar

⁴⁵ Fridman, G.H.L., Agency, cit., Introduction, 3.Google Scholar

⁴⁶ D. 43, 16, 1, §§12, 14; cf. etiam D. 50, 17, 152, §1.

⁴⁷ Vacarius, , Liber Pauperum, ed. Zulueta, F. de (Selden Society, XLIV), London, 1927, p. 250.Google Scholar

⁴⁸ Co. Litt. 207a; 4 Inst. 317.

⁴⁹ Cf. Colling, J. in Keighley, Maxsted Co. v. Durant [1900] 1 Q.B. 629Google Scholar, 648–50. One of their lordships in the House of Lords also partly referred to the rule in that case: [1901] A.C. 240.

⁵⁰ D. 47, 10, 11, §3. Chevailler, op. cit., p. 228, and Longo, op. cit., p. 199, point out also the solution adopted by Ulpian himself in D. 3, 2, 13 pr., a passage which deals with ratification: the paterfamilias who ratifies his son's marriage to a widow which took place before the termination of her period of mourning will not be tainted with infamia.

⁵¹ Cf. etiam D. 50, 17, 152, §§1–2.

⁵² Cf. Windscheid, , Pandektenrecht (9th ed., Frankfurt am Main, 1906) I, §74 p. 365, n. 3.Google Scholar

⁵³ Cf. Ferrini, C., Diritto penale romano, Esposizione storica e dottrinale (Milano 1902) 118Google Scholar; 1 d. Diritto penale romano, Teoria generale (Milano, 1899) 290; Chevailler, loc. cit. Others (Luden, cited by Ferrini in Dir. pen. rom., Esp. stor., cit., 118) considered rather the plan of the ejector and not the confirmation of the ejectment which had already been executed.

⁵⁴ Cf. Bortolucci, , Ratihabitio mandato comparatur (Modena, 1916) 9Google Scholar; Stoll, H., in 47 (1964) Zeit. Savigny-Stift., Roman. Abt., 538.Google Scholar

⁵⁵ Cf. Bortolucci, op. cit.; Arangio-Ruiz, op. cit., 197 sqq. Cf. etiam Albertario, in Studia et docum. historiae et juris, 2 (1936) 169 sq.; Beseler, in Zeit. Savingny-Stift., Roman. Abteil., 46 (1926), 140 sq.; Longo, loc. cit.

⁵⁶ Cf. Cosentini, , “Ratihabitio mandato comparatur”, in Annali semin. giur. Catania, I. 1947, 240Google Scholar; Nicosia, , Studi sulla deiecto, I (Milano, 1965) 87Google Scholarsqq., 106 sqq. (Though both these authors recognize the interpolation in the passage where the said rule appears for the second time). See also Sanfilippo, in I (1950) IVRA, 497.

⁵⁷ Cf. Sanfilippo, , Corso di diritto romano, Il mandato, I, Catania, 28sqq.Google Scholar: Arangio-Ruiz, op. cit., 200.

⁵⁸ Arangio-Ruiz, op. cit., 206.

⁵⁹ f. 171b (Bracton, Henrici de, De Legibus et Consuetudinibus Angliae, III, ed. Twiss, 1964, p. 90).Google Scholar

⁶⁰ Pollock, and Maitland, , History of English Law (2nd ed., Cambridge, 1952) II, 228, n. 4Google Scholar; Maitland, , ibid., XVII sq. And for a more extensive appreciation see Maitland, Bracton and Azo (1895) 179.Google Scholar

⁶¹ Cf. Savigny, , Geschichte des röm. Rechts im Mittelalter, II (Darmstadt, 1956) 222, 379, 391, 394.Google Scholar On these last three pages there are sections relating to our subject of the book Petri Exceptiones Legum Romanorum, on which see Savigny, op. cit., 140 sq.; he identifies the birthplace of the author as being in the district of Valence in France and his period as the 11th century. About this subject, see also, especially as regards our discussion, Kantorowicz, H. U., Zeit. Savigny-Stift, Rom. Abteil. 30 (1909) 255sq.Google Scholar; 31 (1910) 87. On lawyers of later times see Engelmann, W., “Der geistige Urheber des Verbrechens nach dem italienischem Recht des Mittelalters”, in Festschrift f. K. Binding, II (Leipzig, 1911) 387Google Scholarsqq. To the scholars mentioned in this important article as regards our subject one must add, amongst others: Tocco, Carlo di, Leges Longobardorum cum argutissimis glosis Caroli de Tocco, Venetiis, 1537, p. 35 (Torino, 1964, p. 105)Google Scholar; Prospero Farinacci (Farinacius, P.), Consilia sive Responsa, Lugduni, 1610, cons. 4, n. 4Google Scholar; 26, n. 15 sqq.; 103, n. 15; 104, n. 17 sqq.; 105, n. 19; Id., Praxis et Theoricae criminalis partis primae tomus primus, Venetiis, 1603 (De Inquisit., quaestio VII, n. 50, p. 44 b; De del. et poenis quaestio XXIII, n. 139, p. 197 b; Chiari, Giulio (Iulius Claras), Opera omnia sive Practica civilis atque criminalis, Venetiis, 1614Google Scholar (Sententiarum lib. V, quaestio LXXXVII, ibid., 340 sqq.); Cujas (Jacobi Cujacci) Opera omnia, Lutetiae Parisiorium, 1658, VIII (Operum postumorum IV, 2) 869; Sabelli, Summa diversorum tractatuum, Venetiis, 1692Google Scholar, IV, v. “Ratificado”, n. 24; Richeri, , Univers, civilis et crimin. jurisprudentia (1774–1782) Laude Pompeja, 1826–1829, lib. IV, tit. XXXV, para. 1417.Google Scholar

⁶² Cf. Glossa “dejecit” ad I. hoc jure (D. 50, 17, 152), §1; Engelmann, op. cit., 523.

⁶³ Cf. Cap. 23 in VI° De sententia excom., lib. v, tit. 11; Engelmann, op. cit., 523 sq.

⁶⁴ Cf. Engelmann, op. cit., 524.

⁶⁵ Engelmann, p. 525.

⁶⁶ Cf. Cujas, loc. cit.

⁶⁷ Cf. Engelmann, op. cit., 526. Cf. Farinacci, Consilia, cit., 126 (cons. 26, n. 15): “quando delictum tendit immediate ad commodum et utilitatem alicuius, tunc in dubio praesumitur ratificatio”.

⁶⁸ Baldus de Ubaldis, D. v. de offic. proconsul.; 1. observare, § post haec, n. 16. Cf. Engelmann, op. cit., 530 sqq.

⁶⁹ See above.

⁷⁰ See above.

⁷¹ See above.

⁷² See, for example, sec. (3) of the French law on the Press of 27.7.1849 which derives from the law of 9.9.1835, and afterwards became sec. 24 (3) of the law of 29.7.1881 (sur la liberté de la presse), later amended by a law of 5.1.1951. See also secs. 303, 327, 414 of the Italian Criminal Code of 1931.

⁷³ Holdsworth, W.S., A History of English Law, II (3rd ed., London, 1923) 12.Google Scholar

⁷⁴ Cf. Brunner, H., Geschichte der englischen Rechtsquellen im Grundriss (Leipzig, 1909).Google Scholar