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<\/a><\/p>\nThus, \u201cthe ethical standard of reasonable conduct has replaced the unmoral standard of acting at one\u2019s peril.\u00a0 It is most likely that theories of strict liability were dominant during the formative years of the common law.\u00a0 But during the nineteenth century . . . there was a decided and express shift towards the theories of negligence.\u201d<\/p>\n
Prof Kreitner continues.\u00a0 \u201cThe accounts of such a shift are persuasive, but only when one acknowledges that the shift took place over the course of decades (rather than, say, through one key judgment of an individual court) and that it solidified quite late in the nineteenth century.\u201d<\/p>\n
Further, the shift in tort liability occurred among societal changes.\u00a0 \u201cThe importance of the shift in background assumptions about liability could hardly have been imagined early in the nineteenth century, when the number of serious injuries from industrial activity was minuscule in comparison to what would emerge in the last third of the century.\u201d<\/p>\n
\u201cBy the last two decades of the nineteenth century, the question of the extent to which injuries from industrial accidents could go uncompensated had become a major economic battleground in ways that would have been difficult to appreciate early in the century.\u201d<\/p>\n
Prof Kreitner then turns to contract liability.\u00a0 As he states, \u201cEveryone is familiar with the idea that contract rests on a species of strict liability, namely the claim that in general \u201cduties imposed by contract are absolute . . . It remains an ingrained aspect of mainstream understandings of contract.\u201d<\/p>\n
He explains that, \u201cWhat generally escapes appreciation is that the understanding of contract as a strict liability regime is anything but an age-old phenomenon.\u00a0 In fact, such a regime emerged in the United States only at about the same time as the solidification of the no-liability-without-fault regime in tort, during the final decades of the nineteenth century.\u201d<\/p>\n
\u201cDuring the first half of the nineteenth century, although receding slowly in the decades following, contract was understood as a fault-based regime.\u201d\u00a0 The professor explains that fault was interposed because contracts arose out of relationships.\u00a0 Contract law \u201cwas understood in direct reference to the typical contractual relationships that constituted it.\u00a0 This world of contract was inhabited by people in relational pairs: bailor and bailee, principal and agent, master and servant, principal and factor, landlord and tenant, vendor and purchaser, husband and wife.\u201d<\/p>\n
Given these relationships, \u201cactors had standardized duties, whose contours were shaped by the relation itself.\u00a0 Individual agreement tailored these duties only on the margins.\u00a0 And while some of the relations included duties we could characterize as absolute, it was far more typical for duties to be framed in terms of reasonable skill, reasonable diligence, or reasonable care.\u201d<\/p>\n