Having just returned from my holiday destination, I was very pleased to discover that someone had finally accepted my invitation for “comments or suggestions” (see the headnote to my article). One of the main problems with the subject of my thesis is the vast amount of literature on the subject. Since the 4-year-schedule for writing my doctoral thesis probably will not be sufficient to read even 1 percent of all the relevant material, I gratefully accept all the help I can get with identifying the most significant counter-arguments to my viewpoint. And, because my research primarily focuses on three European systems, I am particularly liable to overlook material that was published outside of Europe. I would therefore like to repeat my invitation to anyone who happens to read this message.
You referred to the writings of Benson and Weinrib.
As for Weinrib’s “change of heart”, I had interpreted his views with regard to the duty to rescue in “The Idea of Private Law” as being analytical, rather than a representation of his own view of whether such a duty should exist. After all, in footnote 17 on p. 154 he writes “In failing to recognize a general duty to rescue, the common law presses the implication of the nonfeasance/misfeasance distinction to an extreme not shared by other legal systems”. However, your message, as well as Heyman’s 1994 article in the Vanderbilt LR, suggest that such a reading is incorrect. Heyman refers to several articles by Weinrib. I will of course read these articles and (assuming that Weinrib does indeed put forward a different argument from the ones I have already addressed in my thesis) discuss his views.
Perhaps I can afford to make one preliminary remark by saying that if Heyman correctly summarized Weinrib’s views when he stated that “private law is inherently negative in the obligations it imposes--it forbids an individual to infringe the rights of others, but does not require him to act for their benefit”, this simply is not universally true (e.g. the example I gave immediately after footnote 57 in my thesis). And, since arguments based on consistency already form an important part of my thesis, it is not unlikely that I will resort to such arguments again.
Whatever the outcome, I am very grateful to you for bringing this oversight to my attention.
With regard to Benson’s writings, however, I was hoping you could be a little more specific. I have done a search through “Westlaw”, but could find nothing specific on the acts/omissions distinction or the duty to rescue, beyond the odd footnote. A search on “interference with legal rights and conferral of benefits” did not result in much either. Would you be able to refer me to a specific article or book in which he discusses the issue?
Again, thank you very much for your kind suggestions.