The codification movement in Continental Europe, particularly in Germany, proceeded on the basis of sharp distinctions among particular bodies of private law.

The BGB has one book devoted to the law of obligations and another to “things,” or the law of property, both movable and immovable.

• Within the law of obligations, there is a sharp distinction among particular kinds of contracts, on the one hand, and unjust enrichment and torts on the other.

  • Each particular body of law within the law of obligations has its own rules, which are subject to the general principles laid down first in the general part governing the entire law of obligations and second in the general part governing the entire civil code.

  • The civilian trained in this tradition has clear categories in his or her mind. Fact patterns must be classified one way or the other.

  • Some of the civilian categories, however, manipulate the boundaries to achieve certain ends.

    • For example, the German lawyers invented “affirmative breach of contract” as a doctrine supplementary to the code in order to augment the category of contract and diminish the scope of tort; the reason was that the rules of employer liability are more favorable in contract than in tort.

Nothing quite like this conceptual clarification has ever occurred in the common law.

• Products liability is both tort and contract.

• The law of nuisance lies in a zone where property and tort overlap.

• The writ of trespass has features of both tort and criminal law.

• The basic idea behind trespass vi et armis (“by force and violence”) is that it had qualities of both tort and criminal law.

• This intersecting identity of tort accounts for one of the most puzzling features of the common law of torts—namely, punitive damages.

Tort is supposed to be about compensation for injury, not punishment. Criminal law is for punishment.