In property law, there is an evolving doctrine with respect to who bears the burden for latent defects in a building–that is defects in the foundation, for example, that are not readily apparent. The older case law suggested that the owner of the property bears the burden of investigating and discovering any latent defects. The modern doctrine addresses the obvious problem–you can’t find latent defects.
Well, it seems that the issue of who bears liability for latent defects has been around well before the Restatement (First) of Property, or even at common law. Look to the ancients–Hammurabi’s Code!
I found this passage from Taleb’s Antifragile about Hammurabi’s code fascinating:
Hammurabi’s code— now about 3,800 years old— identifies the need to reestablish a symmetry of fragility, spelled out as follows:
If a builder builds a house and the house collapses and causes the death of the owner of the house— the builder shall be put to death. If it causes the death of the son of the owner of the house, a son of that builder shall be put to death. If it causes the death of a slave of the owner of the house— he shall give to the owner of the house a slave of equal value.
It looks like they were much more advanced 3,800 years ago than we are today. The entire idea is that the builder knows more, a lot more, than any safety inspector, particularly about what lies hidden in the foundations— making it the best risk management rule ever, as the foundation, with delayed collapse, is the best place to hide risk. Hammurabi and his advisors understood small probabilities.
Now, clearly the object here is not to punish retrospectively, but to save lives by providing up-front disincentive in case of harm to others during the fulfillment of one’s profession.
These asymmetries are particularly severe when it comes to small-probability extreme events, that is, Black Swans— as these are the most misunderstood and their exposure is easiest to hide.
Yes, well under the modern law, there are no executions or transfer of slaves for latent defects, but the idea of ex ante deterrence remains. As I’ve written elsewhere, common and natural law principles tend to be congruent with principles of economic efficiency (oh I can’t wait till I can teach Pierson v. Post next week!). There really is nothing new under the sun.
Of late, I have been studying some Jewish Law from the Talmud, and completed some lessons on Jewish perspectives on self-defense. Needless to say, they largely mirror common-law doctrines that evolved two millennia later. I’ll blog more about it soon.