Just a quick diversionary note in this interesting discussion.  Third  

party rights in contract provide another potential example of the  

unborn having rights.  Most European systems that recognised the  

possibility of contracting parties creating rights for a third party  

by way of their contract allowed that this extended to third parties  

as yet unborn or indeed conceived.  The analysis was that the  

obligation was made subject to a suspensive condition, i.e. the  

occurrence of the birth of the third party child.  The obligation  

existed but was unenforceable until the condition occurred.  There are  

various rules, of course, about discharge of conditions before the  

event occurs but we don't need to worry about them here - the point is  

that conceptually this is an instance of the unborn having rights  

recognised in law.

The classic case was the marriage settlement with provisions in favour  

of the children to be born of the marriage.  In more recent times it  

has been argued that this idea could extend to the contracts made by  

promoters of as yet unformed companies.  The argument was unsuccessful  

in Scotland but, if I remember aright, successful in South Africa.

One should presumably also consider the unilateral promise and the  

trust as two other legal institutions where the as yet unborn may have  

rights.

Hector

--

Hector L MacQueen

Professor of Private Law

Co-Director, AHRC Research Centre Intellectual Property and Technology Law

Edinburgh Law School

University of Edinburgh

Edinburgh EH8 9YL

UK

Tel: (0)131-650-2060; Fax: (0)131-662-6317

Quoting C.E.Webb@lse.ac.uk:

> In torts as elsewhere in private law we use the concepts of right and

> duty both to reach and to present conclusions on legal liability.

> Unless we think these terms are meaningless, and hence superfluous, it

> is helpful to ask what they do mean and how they should be used.  If

> there are cases where our intuitions say liability is clear but which

> pose problems for either our understanding or the application of these

> concepts of right and duty, then I'd say that they provide an ideal

> occasion to consider how these concepts work.  We may then be better

> equipped when faced with cases where our intuitions are less clear or

> not so widely shared.

>

> This, I think, is the case here.  We typically say that liability in

> negligence arises where and because the defendant has breached a duty of

> care s/he owed to the claimant (and this causes the claimant harm or

> loss).  However, I think there is a problem fitting within this analysis

> cases where the claimant's harm results from conduct occurring prior to

> his/her conception (possibly also where it is simply pre-birth).  I

> don't think we can say duties can be owed to the "unconceived" if we are

> not also to say that these (at the time) "non-people" can also hold

> rights - at least so long as we are using the terms "right" and "duty"

> as correlatives in the way Hohfeld used them.  Rob's argument is that

> rights and duties can be correlative in this sense, even where they

> don't co-exist at the same point in time - this then allows us to square

> these "problem" cases with the traditional negligence analysis.  I think

> this misunderstands what rights and duties are in the Hohfeldian sense;

> namely not distinct elements but rather two aspects of - even two ways

> of describing - a single legal relation(ship) between two individuals.

> The relationship between rights and duties (or at least of the relations

> each describes) is one of unity.  One doesn't follow from or give rise

> to the other.  To say that A owes to B a duty (not) to do X is to say

> that B has a right that A (not) do X.

>

> Now one may ask why we should concern ourselves with the intricacies of

> Hohfeld.  Certainly we can use the language of rights and duties in

> other (useful) ways.  But I think its importance here is not just

> Hohfeld's general point about being clear in what we're saying when we

> use the term "right" and avoiding faulty reasoning.  Rather, the key

> point is that a private law action is an assertion of a (Hohfeldian)

> right-duty relationship - the claimant is asserting that the defendant

> owes him/her a duty (not) to do X (or, to say the same thing, that s/he

> has a right that the defendant (not) do X) and is asking the court to

> see this is given effect.  As such, we might think that an examination

> of the parties pre-claim, pre-harm right-duty relationship would be a

> useful thing to focus on.  Of course, we can still analyse such claims

> using "right" and "duty" in different senses, but then more work needs

> to be done to show how these "non-Hohfeldian" rights and duties support

> a particular claim, and hence a particular (Hohfeldian) right-duty

> relationship.

>

> Here's another possibility.  When we bring claims after suffering harm

> as a result of another's carelessness, the right we are asserting is not

> a right (and correlative duty) that the defendant take care to see that

> we are not harmed when he was engaged in the relevant conduct (making

> baby food, designing bridges), but a distinct right (and correlative

> duty) that the defendant, for example, compensate us for the losses

> caused by his failure to take care when doing this.  That's not to say

> that when making the baby food, designing the bridge etc the defendant

> didn't owe such a duty of care.  That may have been the case, but it's

> now too late to demand that the defendant does indeed take care.  The

> claim is distinct.  Such rights to compensation don't arise in all cases

> where we are harmed by another's carelessness.  Traditionally we say

> that they arise only where the claimant had a right that the defendant

> take care in the first place - or in other words, only where the

> defendant owed the claimant a duty of care.  However, maybe these cases

> involving the "unconceived" show that there may be instances where

> duties to compensate for carelessly caused harm arise even where there

> was no duty to the claimant (though such a duty may have been owed to

> others) to take care in the first place.

>

> Charlie.

>

> -----Original Message-----

> From: Jones, Michael [mailto:M.A.Jones@liverpool.ac.uk]

> Sent: 20 January 2009 00:51

> To: Benjamin Zipursky; Jason Neyers

> Cc: Obligations list

> Subject: RE: ODG: Duties to the unborn

>

> Ben's point is so self-evidently correct, for the life of me I just

> cannot see why people are getting so wound up about the conceptual

> problem of whether someone exists at the point of breach.  It's the

> damage that matters - a legal system that denied a remedy to a child

> disabled by pre-birth negligence because it couldn't cope with the

> conceptual problem that has been discussed over the last week or so on

> this forum would not be a shining example of 21st century (or even 20th

> century) jurisprudence.

>

> It may be reassuring to tie up all the conceptual loose ends, but

> sometimes the result is more important than the route by which one

> arrives at the destination.  I'm not trying to provoke another flurry of

> posts - its just that sometimes I think you can have too much theory and

> lose sight of the basics ...

>

> Michael

> --------------------------------------

> Michael A. Jones

> Professor of Common Law

> Liverpool Law School

> University of Liverpool

> Liverpool

> L69 3BX

>

> Phone: (0)151 794 2821

> Fax:     (0)151 794 2829

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