To: Robert H Stevens <>
Lionel Smith <>
Jason Neyers <>
ODG <>
Date: 14/01/2009 23:01:46 UTC
Subject: RE: ODG: Duties to the unborn

Robert, since I find it difficult to accept a theoretical

point that is supported only by a hypothetical example, can you find a

real example of a court's recognising a right that

does not correlate in time with a duty?   I have spent at least

a minute or two trying to think of any examples of rights and duties

that do not correlate in time.  But I was not successful.

How would such beasts ever be enforced?  


-----Original Message-----

From: Robert H Stevens []

Sent: Wednesday, January 14, 2009 4:23 PM

To: Lionel Smith

Cc:; Robert Stevens; Jason Neyers; ODG

Subject: Re: ODG: Duties to the unborn

I don't agree I am afraid. Rights do indeed correlate with duties (as

Charlie says). But there is no logical, linguistic or legal reason why


right which the duty correlates with must coexist at the same moment in

time with it. So in my hypothetical the right of the child does indeed

correlate with the duty of the manufacturer, even though the right and


duty do not exist at the same time.

To take another example, say we accepted that we are under a duty to our

great, great, great grandchildren not to despoil the environment. Once

born, those persons will have a correlative right that we did not so

despoil. We however, will not be under any duty at that moment. We'll be

dead. the right and the duty never exist at the same moment in time.

I cannot be under a duty after I am dead. I cannot be a right-holder

before I am born/conceived.

So, in Lionel's example of the hole digger, there is a duty not to dig


hole so as to endanger the person even before they come into existence.

This is the same as the manufacturer of the baby food: they owe the duty

not to manufacture poisoned baby food even though the child is not yet

conceived. The correlative right arises only once the child is

born/conceived. The breach of duty occurs if the child is poisoned/once

they fall in the hole.


> I think perhaps I agree with both Charlie and Robert.

> If I carelessly create a hazard (make it a hole in the ground) and no


> is

> ever hurt, I don't think I have breached a duty.

> If however someone falls in the hole, I have breached a duty.

> But the whole of my relevant actions took place before any of the

> plaintiff's relevant actions, and but for the falling in the hole, my

> actions would not have been a breach.

> All along I owed that person a duty to be careful in relation to their

> bodily integrity; that is, a duty to take reasonable care not to cause

> harm

> (not risk) to that integrity (I am not clever enough to understand

> /Barker/). Until I harmed their bodily integrity, there was no breach


> the

> duty. Digging the hole that will (later) harm the right-holder is not


> breach of the right-holder's right. It is only the beginning of what


> later be revealed to be the breach.

> Now if we change it so that the person did not come into existence


> after I dug the hole, I am still liable. The only thing that changes


> that

> the right is not held and the duty not owed until the person comes


> existence.

> But since the digging of the hole, being merely the beginning of a


> is not itself the breach, it doesn't seem to matter that the duty was


> owed at that time.

> In other words, if the only persons in the jurisdiction were me and


> person who came into existence after I dug the hole, then only after


> person came into existence would it be legally prudent for me to rush


> and fill in the hole. Before that, my act has no juridical content and

> can't

> be a breach of duty.


> It seems to me that the solution used by both the common law and the


> of

> Quebec is this, that if the person is born alive, their life is


> to have begun at conception. You could call this 'relation back' I

> suppose.

> The civilians call it a fiction but I'm not sure. It's just the


> of a very difficult set of interlocking interests. For one set of


> we say that the person needed to be born alive to become a person


> rights. But on the other hand, in order to be born alive you need to


> conceived and to exist in utero and to be at risk of harm.


> Lionel






Robert Stevens

Professor of Commercial Law

University College London