Sigvard A. Torden
Initial Tort Claim of the Citizens of Esgaroth ex rel. Bard as Capitain of Archers v. Thorin
Oakenshield: Classification and Sufficiency Assessment in Terms of Laws and Customs
of the Free Peoples of Middle-Earth
In this paper the content of tort law of the free peoples of Middle-earth in the last century of the Third
Age is established on the basis of materials from «Red Book of Westmarch» and validity of claim of
Bard for compensation of the damage caused by Smaug to dwellings of citizens of Esgaroth against
Thorin is estimated in terms of the determined rules.
The article was published in Russian in the collection “Obligations arising not from a contract” (head
of the team of authors and executive editor, Doctor of Law, Professor M.A. Rozhkova. Moscow:
Statut publishing house, 2015) https://www.estatut.ru/catalogue/books/grajdanskoe-pravo/teoriyagrajdanskogo-prava/obyazatelstva-voznikayushchie-ne-iz-dogovora-sbornik-statey/
Background. The Dwarf Monarch Thrain I led his people to Erebor (the Lonely Mountain)1
and became King Under the Mountain in 1999. T.A.2 In 2210 T.A. his son Thorin I left Erebor, but in
2590 T.A. his fifth-generation descendant Thror returned. Thanks to the constant flow of metals from
the Iron Hills (where another Dwarf settlement was located), the handicraft production of jewelry,
weapons and armor that were in demand among other peoples, the training of neighbors in
blacksmithing and jewelry, and mutual trade, Erebor flourished, and colossal wealth accumulated
there.
After the rebirth of Erebor, the city-state of Dale was founded between its southern foot and the
Long Lake. It became an important trading port, which also provided the city and its inhabitants with
wealth and prosperity.
In 2770 T.A. the largest dragon of his time, Smaug the Golden, destroyed the kingdom of the
dwarves, and also destroyed and devastated Dale, after which he entered the Great Hall of Erebor and
lay down on the gold stored there3.
March 25, 2941 T.A. Thorin Oakenshield, grandson of Thror, met in the town of Bree, which is
not far from the Shire, the sorcerer Gandalf. The magician deliberately unraveled Thorin's longstanding desire to take revenge on the dragon, reclaim his lost homeland and restore possession of
Erebor. A little later, the wizard urged Thorin to change plans from war to robbery and involve Bilbo
Baggins, a peaceful hobbit from the Shire, as a professional burglar (robber)4.
1
Proper names, especially personal ones, including the so-called speakers, are given mainly in transcription or
transliteration, i.e. without translation into Russian. The exceptions are some names of geographical features (eg, Iron
Hills, Long Lake) and quotations from published translations of sources, where proper names used by translators are
retained.
2
In the indications of dates, the abbreviation "F.A." means "First Age", "S.A." - "Second Age", "T.A." – “Third
Age”, “BC” - "before our era" (that is, before the birth of Christ). Dates given without such abbreviations refer to our era
(after the birth of Christ).
3
H I 27–29; H X [1] 222; R.K App. A III [2] 1407–1408; R.K App. B 1427–1428.
Due to the large number of editions and translations, references to sources are given in this publication to editions
in English, indicating the abbreviation of the title and the number of the fragment in the text (in addition to the page).
Roman and Arabic numerals after the title abbreviation mean the corresponding number of the book, chapter and
other fragment that has the number in the source (if any).
Arabic numerals in square brackets indicate the actual serial number of the fragment, which has no number in the
source, but is separated in the text from the previous and (or) subsequent fragment by an additional (increased) line
spacing and (or) signs "***".
The abbreviations in italics indicate the designation of the fragment, placed in the header of the edition of some
volumes of the "History of Middle-earth".
The last group of digits indicates the number of the page(s) in the edition listed in the list of abbreviations at the
end of the publication.
4
R.K App. A III [9] 1415–1416; QE 416-422, 424-434.
Gromov Sergei, Associate Professor of the Department of Civil Law of St. Petersburg State University, Ph.D. in Law, https://law.spbu.ru/aboutfaculty/teachers/gromov/
2
A month later, on April 26, 2941, T.A.5 thirteen dwarfs, led by Thorin and Gandalf, came to
Bilbo's house. Under pressure from Gandalf, Thorin, on behalf of all the dwarves, invited the hobbit
to take part in a campaign to Erebor in order to return the treasure stolen by Smaug6.
The final wording of the proposal from Thorin and Company (by the time it was accepted) was
discovered by Bilbo the next morning in a letter left on the mantelpiece under the clock. Bilbo was
required to assist in obtaining treasure for a reward (in addition to reimbursement of travel expenses)
in the amount of the fourteenth part of everything that would be mined. Immediately after reading
this letter, Bilbo arrived at the meeting point indicated in it - at the Green Dragon Inn in Bywater,
from where they all went to Erebor together7.
After a long series of misadventures, the dwarves were captured by the king of the wood elves,
Thranduil. September 21, 2941 T.A. thanks to the efforts of Bilbo, they managed to escape in barrels,
which, during the trade of the wood elves with the city of Esgaroth, were rafted down the Forest River
to the Long Lake. At the same time, Bilbo himself, who had no one to "seal" in a barrel, had to ride
on it8.
The next day, the dwarves and Bilbo ended up in Esgaroth (Lake-town, standing on stilts in the
middle of the Long Lake), where they were warmly received by the townspeople. The inhabitants of
Esgaroth settled the dwarves and the hobbit in a large house, provided them with food, treatment,
other care, clothing, and also provided them with a supply of provisions, other necessary props and
even a pony for a trip to Erebor. At the same time, the burgomaster did not forget to mention that in
the event of the restoration of the kingdom, he was counting on the gratitude of Thorin, not especially,
however, hoping for the success of the guests' enterprise9.
On November 11, 2941, having reached Erebor, the participants of the campaign penetrated
into the mountain. The next day, Bilbo took the initiative and, with the approval of the dwarves, went
to examine the sleeping Smaug for weaknesses10.
The dragon only pretended to be asleep, and when Bilbo appeared, he began to ask him about
who he was and where he came from. The Hobbit, instead of giving his name and place of residence,
called himself a number of epithets, including "barrel rider"11. This led Smaug to the idea that the
inhabitants of Esgaroth, using barrels in the course of trade, assisted the dwarves, whose scent the
dragon smelled even without prompting from Bilbo12. At the same time, the hobbit found a gap in
Smaug's armor13, and when he told his companions about this, the news was heard by an old thrush
from that breed of birds, the language of which people from Dale and Esgaroth once understood14.
In the evening, remembering what had happened, Bilbo regretted part of what he had said to
the dragon, a little later confessed this to the dwarves and suggested that Smaug would intend to take
revenge on the inhabitants of Esgaroth for helping uninvited guests. That is exactly what happened15.
On the night of November 12-13, 2941 T.A. Smaug attacked Esgaroth and began to destroy it,
setting fire to and destroying buildings. The captain of the archers, Bard, a distant descendant of
Girion, ruler of Dale, organized the defense of the city and fired many arrows at the dragon. Before
releasing the last one, Bard heard and understood the chirping of a thrush, informing the archer of the
breach in Smaug's armor. The bard listened to the thrush and shot at the dragon only when he saw a
dark spot against the background of the glittering armor. The arrow hit just this spot and struck Smaug
to death; falling, the dragon finally destroyed the city16.
5
Circumstances 2941–2942 T.A. dated according to the publication: Belyakov S.A. Principles of reconstruction of
the chronology of events on the example of the book "The Hobbit, or There and Back Again" // Palantir. 2006. No. 51. P.
29-38.
6
H I 23–24; QE 434–435.
7
H II [1] 35–36.
8
H IX [1] 198–202; H IX [5] 209–215.
9
H X [2–3] 226–233; H XI [1] 234.
10
H XII [6] 256.
11
H XII [7] 258.
12
H XII [8] 259.
13
H XII [9] 263.
14
H XII [10] 265.
15
H XII [10] 269–270.
16
H XIV [1–2] 286–270.
3
After the death of the city, its inhabitants, who suffered from lack of housing, cold, disease and
hunger, presented their claims to the burgomaster who tried to escape, but was detained. He deftly
turned the anger of the townspeople against the dwarves who had awakened the dragon, and led
everyone to the idea of repairing the damage at the expense of the treasures of Erebor17.
Toward the end of November, warriors from among the inhabitants of Esgaroth, led by Bard
and the forest elves, under the command of King Thranduil, headed for Erebor and on November 25,
2941, T.A. camped under the Lonely Mountain18.
The next morning, Bard made a series of claims to Thorin.
Bard's Demand on Thorin. Since the rest of the presentation is devoted to the qualification,
interpretation and evaluation of the claims of the Bard, as well as the objections of Thorin opposed
to them, it seems correct to quote them verbatim:
“I am the Bard, my hand has slain the dragon and freed your treasure. Isn't this our common
cause? Moreover, I am the rightful heir of Girion of Dale, and in your treasury the wealth of the
dwarves was mixed with the wealth of the citizens of Dale, which old Smaug stole. Isn't this a subject
for negotiation? Further: in the last battle, Smaug destroyed the dwellings of the Esgarotians, and I
serve the Ruler. I will speak on his behalf and ask you: do you have compassion for the misfortunes
and sorrows of his subjects? They helped you in your trouble, and in return you brought them
destruction, even unforeseen.
...
- You have stated at the end and as the main the most unfounded claims, - Thorin answered.
“None of the people have the right to own the treasures of the dwarves, because Smaug, who stole
them from us, also deprived us of our homes and lives. It is not his treasure to pay for his crimes. For
the food, materials, and help we have received from the Lakers, we will honestly pay - when the time
is right. But we will not give anything to anyone under the threat of a military attack. While the armed
army stands at our doors, we look at you as enemies and invaders19.
Thus, Bard essentially combined in one requirement four claims that have an independent
subject and grounds:
1) a reward for killing a dragon and thereby removing an obstacle to the possession, use and
disposal of treasures;
2) the return of the valuables that came to Erebor from Dale during its ruin by Smaug in 2770
AD;
3) compensation for the damage caused by the dragon during the attack on Esgaroth on the
night of November 12-13, 2941 T.A.;
4) payment for services rendered to the dwarves and the hobbit during their stay in Esgaroth
from September 22 to November 10, 2941 T.A.
The last claim is apparently of a contractual origin and is recognized by Thorin, therefore it is
of no interest from the point of view of the topic of this collection.
Another question is with what intention the inhabitants of Esgaroth provided the dwarves and
Bilbo with "food, materials and assistance" - as a gift, based on an equivalent reward, or based on a
possible good service on the part of the dwarves in case the townspeople needed it in an indefinite
future.
The last specific causa of grants (if it is recognized as legal) was characteristic of Middle-earth.
So, Gandalf at one time rendered a service to the eagles, curing their lord wounded by an arrow20. He
subsequently helped the sorcerer, Bilbo and the dwarves escape from the persecution of the wargs
(wolf-like creatures). They, in turn, promised to thank the eagles who carried them through the Misty
Mountains, if the opportunity presented itself21.
17
H XIV [3] 290–296.
H XV [2] 302.
19
H XV [3] 306. Translation by V.A. Matorina (published under the pseudonym V.A.M.). Here and below, the
choice of translation (if there are several) is determined mainly by the correctness of the translation of the vocabulary,
which is significant from the point of view of the correct interpretation of the legal aspect of the fragment. Quotations in
English, traditional for studies that are devoted to all aspects of the history of Arda, are forcedly omitted due to the limited
volume of this publication.
20
H VI [4] 127.
21
H VII [1] 131.
18
4
The first three requirements are of much greater interest. At the same time, it would be primitive
and vulgar to determine their validity on the basis of the norms of any of the modern legal orders
(whether Russian or foreign). Deserving solution seems to be the task of establishing, based on
available sources, the rules of law on the basis of which this dispute should have been resolved
precisely in Middle-earth in the last century of the Third Age.
Sources. The only authoritative sources of information about Arda, including Middle-earth,
including its geography, nature, ethnography, history, culture, law, are the materials of the Scarlet
Book of the Western Limits, written by the hobbits Bilbo and Frodo Baggins, Samwise Gamgee and
Meriadoc Brandybuck.
Apart from the descriptions of the circumstances of the last century of the Third Age contained
in The Hobbit and The Lord of the Rings, of which these authors were contemporaries, witnesses and
participants, the rest of the texts are predominantly considered translations of Bilbo Baggins from the
Elvish22.
These texts have been translated from Aduni (Westron, Common Speech) by Oxford University
Professor J.R.R. Tolkin and are presented in a number of his works. They were published both during
his lifetime (The Hobbit, or There and Back Again, 1937; The Lord of the Rings, 1954-1955; The
Adventures of Tom Bombadil, 1961), and after his death by his son K .R. Tolkien (A Guide to the
Translation of Proper Names from The Lord of the Rings, 1975; The Silmarillion, 1977; Unfinished
Tales of Numenor and Middle-earth, 1980; J. R. R. Tolkien Letters, 1981 (Ed. H. Carpenter)23, A
History of Middle-earth in 12 vols, 1983-1996, The Tale of the Children of Hurin, 2007).
In addition, a number of materials are contained in The History of the Hobbit publications
(rough handwritten and typewritten versions, ed. by J.D. Reitliff, 2007), as well as in separate
manuscript publications by J.R.R. Tolkien in the magazines Parma Eldalamberon (published since
1971) and Vinyar Tengwar (published since 1988).
Most of the materials mentioned have been translated into Russian, and The Hobbit, The Lord
of the Rings and The Silmarillion have been translated more than once. The exceptions are nine
volumes (III, V-XII) of the "History of Middle-earth", "History of the Hobbit" and publications in the
journals "Parma Eldalamberon" and "Vinyar Tengvar" (there are translations of their individual
fragments, including large ones, on the Internet) .
These sources are heterogeneous: they include both myths and legends, and narratives about
events, the participants of which were the authors themselves or those from whose words they kept
records.
Myths and legends, in accordance with the principles of anthropology, history and cultural
studies, should be perceived not as fairy tales, but as the most ancient (pre-scientific) form of
reflection in the public consciousness and an attempt to explain the basic laws of the development of
nature and society.
So, J.R.R. Tolkien in a letter to M. Waldman (end of 1951) noted that "myth and fairy tale, like
any art, must reflect and contain in a dissolved state elements of moral and religious truth (or error)"24;
"legends and myths are largely woven from" truth "and, of course, represent certain aspects of it,
which can only be perceived in this form"25.
According to N. Rulan, “myths provide fundamental explanations for the creation of the
universe, the birth of life in society and determine the basic rules that regulate this life... From myths,
the rules that regulate life in society are born: moral, religious, legal. Thus, a careful reading of myths
allows one to create an idea of the content of legal norms and customs characteristic of a particular
society26.
22
FR Notes 18–21; RK VI 6 [12] 1292–1294; RK VI 9 [8] 1343–1344.
Strictly speaking, The Lord of the Rings Appendices D – F, The Handbook, and J.R.R. Tolkien are not
translations of materials from The Scarlet Book of the Western Reach, but due to his greatest knowledge of the subject,
they are traditionally included among the authoritative sources.
24
L 131 144. Translated by S.B. Likhacheva.
25
L 131 147. Translated by S.B. Likhacheva.
26
Rulan N. Legal Anthropology. M., 1999. S. 56.
23
5
The sources contain myths (plots with the participation of the Válar - angel-like spirits27 that
realize the will of the single god Ilývatar) and legends (plots without the participation of the Valar)
with elements that have a legal content.
In this publication, they are interpreted as a reflection of the ideas of the peoples who created
these myths and legends (mainly elves), about contemporary legal ideas, norms and relations.
J.R.R. Tolkien himself, characterizing the completeness of the sources, admitted that
“economics, science, examples of material culture, religion and philosophy <...> are depicted
incompletely or at least very schematically”28, and “in the chronicles and annals of “true” history,
many facts from those that the curious would like to know are omitted, so that the truth has to be
found out or guessed based on the available evidence29.
An explanation for the incompleteness of the sources (in the part that characterizes such an
attribute of peaceful life as civil law) can be found in them themselves. Thus, it is pointed out that
“little is known about the long years of the world <...>... Little was said about the bliss and joy of life
<...>; so beautiful and marvelous creations, while they exist and delight the eye, speak for themselves,
and only when they are in danger or perish, songs are composed about them30. In the description of
the initial stage of the campaign to Erebor, it is also noted: “Strange, but everything good, about
pleasantly spent days, is always told so quickly that there is almost nothing to listen to; but about
troubles, about what causes trembling and horror, stories usually come out long and fascinating31.
Nevertheless, the sources include several hundred fragments (!), from which one can extract
information about the legal side of the life of the peoples of Middle-earth, including quotations from
legal documents (laws, treaties, wills), descriptions of customs and laws, judicial and administrative
proceedings, claims declared outside the jurisdictional procedures (as well as the requirements of the
Bard to Thorin), transactions, performance and breach of obligations, individual institutions of
property, obligation and inheritance law32.
Sources give certain grounds for assuming the presence of legal science in Middle-earth. So, in
the History of Middle-earth, in different versions, the myth of the dispute of the Valar on the issue of
allowing the remarriage of the king of the Noldor Finwe after the soul of his first wife Miriel left the
body in 1170 is presented in different versions. Trees (according to other sources, in 1179 .).
The course and outcome of this controversy is described in the Laws and Customs of the Eldar.
There is a gloss to them, which notes that the Eldar should not have been present at this dispute, but
the Valar should have told about it to the teachers (scientists, wise men) of the Eldar; moreover, in the
same gloss it is indicated that this decision itself "among other books of knowledge has been studied
and considered most deeply"33. According to another, more daring version, such teachers (scientists,
sages) of the Eldar, along with their leaders, were called to the Council of the Valar, assembled to
decide this case34.
From these fragments it can be assumed that, at the latest, at the time of writing the gloss to the
first of them, its author had an idea of \u200b\u200bthe scientists who should have been informed of
the result of the dispute of the Valar, which ended in a precedent judgment (the sentence of Mandos).
It seems logical to put forward a hypothesis that we are talking about legal scholars.
In addition, in Middle-earth, obviously, legal practice developed in a certain way. So, it is
known that after the recognition of Bilbo as dead, his return on June 22, 2942 T.A. “caused a great
commotion both Under the Hill and Beyond the Hill and Across the River. Interest in this event did
not subside immediately. Legal red tape continued for several more years. A lot of water flowed before
Mr. Baggins was recognized as alive. Those who bought things on the cheap at the sale had to be
convinced of this for an especially long time35.
27
When translating into Russian, the word "valar" (singular "vala") is not declined by most translators.
L 153 188. Translated by S.B. Likhacheva.
29
L 268 354. Translated by S.B. Likhacheva.
30
QS 10 [3] 104. Translated by N.A. Chertkova (published under the pseudonym N. Estel).
31
H III [2] 60. Translation by V.A. Matorina.
32
For comparison: in the Code of Hammurabi (XVIII century BC), 282 articles are conventionally allocated, and
it is considered worthy of study by legal scholars.
33
LCE Laws A 251. Translation by Yu.V. Monday.
34
LV FM 4 §11 258.
35
H XIX [1] 347–348. Translation by N.L. Rakhmanova.
28
6
This publication is more civil-legal than historical-legal research. Therefore, the question of the
historical reliability of each of the sources separately does not seem relevant. Each legally informative
document (fragment), including those that deviate more or less significantly from the “canonical”
(i.e., published during the lifetime of J.R.R. Tolkien) versions, contains information about what legal
ideas were relevant at the time of the creation of the source or in the era described in it, what
relationships could exist at the indicated time and how they could be regulated.
Thus, we are talking about assessing the reliability of not each individual source or its fragment,
including the description of a specific event, but the reflection in the document of legal ideas, norms,
relations, its compliance with those that were widespread in a particular society in the corresponding
era.
Research Methods. Information about the relations, institutions and norms of law typical for
the societies of the free peoples of the Middle-earth is presented in the sources separately, in an
arbitrary order (more precisely, in the order determined not by the legal system, but by the sequence
of plots and the development of each of them).
dogmatic approach. The value of the science of civil law lies in the fact that it provides the
researcher of positive legal material with a universal toolkit. It can be applied to an arbitrarily mosaic
picture of this or that legal system, regardless of the peculiarities of its rules. The application of
civilistic tools to such fragments makes it possible to streamline the information extracted from
sources, i.e. determine the place of the relations, institutions and norms reflected in them in a structure
rationally constructed for scientific purposes. A relatively complete structure of law should provide
the possibility of placing any relations, institutions and norms in their appropriate "cell".
Actually, it was the search for the place of norms in such a structure that the pandektists were
engaged in, systematizing the knowledge of Roman law based on ancient sources. So, F.K. von
Savigny saw the essence of the systematic method "in the knowledge and presentation of the internal
connection or affinity, thanks to which separate legal concepts and legal norms are combined into one
great Unity"36.
A.G. Karapetov mentions that as an analogy for the work done by the pandektists, some authors,
with a certain degree of conditionality, cite the creation of D.I. Mendeleev of the periodic table of
chemical elements, which systematized the already available data on chemical elements and is open
for further filling37.
At the same time, as V.A. Belov, the dogmatic method applied to a quantitatively richer and
more meaningful source material - legal norms, legal institutions and structures formed within the
framework of various legal orders, is nothing more than a comparative legal method ; logicaldogmatic manipulations with such phenomena are admissible provided that they are first brought “to
a common denominator”, i.e. within the framework of meaningfully comparable concepts38.
According to V.M. Khvostov, comparing the law of one's country with any other is the best way
to deepen knowledge of one's own law; The comparison provides a reason to raise questions about
the nature of the observed differences and their causes and, in this regard, to force one to delve deeper
into the material being studied39.
Traditionally, it was believed that the application of the law is a syllogism in which the major
premise is the legal norm, and the minor premise is the given case, insofar as the composition of the
legal relation corresponds to legal assumptions40.
It is necessary to compare the circumstances and disputed relations, as well as the norms
applicable to them, which took place in Middle-earth mainly in the last century of the Third Age, with
ideal models - legal relations, norms and institutions that occupy their "cells" in a rationally
constructed structure. Such a comparison will make it possible to give a correct qualification to the
claims of the citizens of Esgaroth represented by Bard to Thorin and the disputed relations underlying
them in terms of modern civil law. At the same time, such a comparison will make it possible to
36
Savigny F.K. system of modern Roman law. T. 1. M., 2011. S. 267.
Karapetov A.G. Politics and dogmatics of civil law: a historical essay // Bulletin of the Supreme Arbitration
Court of the Russian Federation. 2010. No. 4. P. 40.
38
Belov V.A. Civil law: General part. T. 1: Introduction to civil law. M., 2011. S. 76.
39
Khvostov V.M. Roman legal system. M., 1996. S. 11.
40
Shershenevich G.F. Civil law course. Tula, 2001, p. 61.
37
7
determine the place of the norms of the legal orders of Middle-earth, to be applied to typical
circumstances, in a rational structure.
However, in the 19th century the German jurist O. Bülow in his article "Legislation and the
judicial function"41 recognized as a delusion the reduction of the role of the court to the mechanistic
application of the syllogism. Revealing the essence of the position of O. Byulov, A.G. Karapetov
points out that the resolution of a dispute inevitably contains an element of creative development of
the legislative foundations and, therefore, cannot be exhaustively described in the language of formal
logic. If there is a law, the judge must obey its text, but the judge has ample opportunity to interpret
the meaning. Such an approach to interpretation is correct, which, within the framework allowed by
the modern meaning of the text of the law, tries to achieve the best results from a political and legal
point of view, regardless of whether the legislator had in mind such a result of applying the norm in
fact. The text of the law, after publication, breaks away from the thoughts of its creator and is
interpreted objectively and teleologically42.
The same approach to law enforcement was demonstrated by the most progressive figures in
Middle-earth. So, when Aragorn, Legolas and Gimli met with the detachment of Eomer, the latter,
thinking about what to do with Aragorn and his companions, said: “I believe you, and my heart knows
what to do. The trouble is, I can't follow my heart! Our laws forbid strangers from wandering within
the Marches without the permission of the King. Times are now troubled and the law has become
even stricter43.” To this, Aragorn replied: “I think your law is written for other cases <...> In the old
days, a noble Rohan commander would not have stopped a man hurrying to the rescue of his friends!
However, my duty is to move forward. And you, son of Eomund, choose! Either help us or let us go
if you don't want to help. If not, follow the law." In the end, Éomer made a decision: “I have made a
choice. Go your way ! Moreover, I will give you horses. I ask only one thing: when you have done
your duty or are convinced that the search is in vain, return the horses to Methuseld, to Edoras, to the
throne of Theoden. By this you will show the King that I have judged correctly. My honor and,
perhaps, my very life will depend on this! Do not let me down!"44.
A little later, the guard Gama, deciding whether he can allow Gandalf to carry the staff into the
chambers of Theoden, argues: "In doubtful cases, a truly valiant man and warrior should act according
to his own understanding.45"
Faramir, meeting Frodo and Sam, says to them: “Even in this position, I can spend a little time
in order to fairly decide the case. If I were in a hurry, like you, I would have ordered you killed long
ago. For I am commanded to kill anyone I meet in this land who does not have the permission of the
lord of Gondor. But I do not kill either people or animals unless absolutely necessary, and when I
have to do this, I do not rejoice46.
Thus, the sources contain examples of the application of law in conflict with the letter of the
law, when deviation from it was due to important pragmatic considerations.
pragmatic approach. It was pragmatic considerations (as opposed to dogmatic ones) in the field
of jurisprudence, lawmaking and law enforcement that were brought to the fore by R. von Iering and
O.U. Holmes.
As A.G. Karapetov, such considerations (they are also called political and legal) include
arguments derived from economics, psychology, sociology, and moral philosophy. These arguments
are designed to help lawmakers in the formation of the most meaningful rational, fair, cost-effective
and ethical law, and the most successful proposals from a pragmatic point of view are seen as the
criterion for success47.
41
42
S. 85.
43
Bulow O. Statutory Law and the Judicial Function // American Journal of Legal History. 1995 Vol. 39P. 71ff.
Karapetov A.G. Struggle for the recognition of judicial law-making in European and American law. M., 2011.
Wed Maeglin’s statement on page 30 : “ the law is not as severe now as before” ( QS 18 [4] 185; translation by
N.A. Chertkova).
44
TT III 2 [15] 570–571. Translation by M.V. Trofimchik and V.A. Kamenkovich (published under the pseudonyms
M. Kamenkovich and V. Carrick).
45
TT III 6 [5] 667. Translated by M.V. Trofimchik and V.A. Kamenkovich.
46
TT IV 5 [2] 869. Translated by A.A. Gruzberg.
47
Karapetov A.G. Politics and dogmatics of civil law: a historical essay // Bulletin of the Supreme Arbitration
Court of the Russian Federation. 2010. No. 4. P. 10.
8
Therefore, in addition to studying the sources using the dogmatic method, it seems necessary
in accordance with the recommendations of S.I. Asknaziya to understand the legal institutions of a
certain historical period (in this case, the last century of the Third Epoch) as necessarily connected
and arising from the material conditions of life of a given society, its economic categories, the tasks
put forward by it and the needs of the economic system48.
Through the application of these approaches, it will be possible to determine whether the claims
of the Bard against Thorin are subject to satisfaction in terms of the norms of law that prevailed
among the free peoples of Middle-earth.
At the same time, in the course of such a study, it is important to refrain from the noted S.A.
Muromtsev of the desire inherent in modern lawyers to understand the institutions of other legal
orders "in the sense most suitable for modern legal concepts"49.
Assumptions used. In studying the law of the free peoples of Middle-earth in the last century of
the Third Age, three assumptions will be used:
firstly, it is assumed that once achieved and recorded in the sources, the level of development
of the rule of law among the free peoples of Middle-earth was not lost over time. This assumption is
reinforced by the fact that all sources of information about Arda (the texts of the "Scarlet Book of the
Western Limits") refer to the last century of the Third Age. They report on the different stages of the
development of Arda, starting with its origin reflected in the myths: “Aule thought about the structure
of the land, to whom Iluvatar gave skill and knowledge no less than to Melkor; but the joy and pride
of Aule is in creativity and in the created thing, and not in possession and domination; and therefore
he gives, and does not save, and is free from worries, all the time moving from what has already been
done to new work ”50; “when the young Earth was full of flame, Melkor longed for it and said to the
rest of the Valar: “This shall be my possession; I claim it as mine!” Manwe was the brother of Melkor
in the thoughts of Ilúvatar, and the chief voice of the second theme that raised Ilúvatar against the
discord of Melkor; and he called many spirits, great and small, and they descended into the fields of
Arda and helped Manwe, lest Melkor interfere with their labors and the Earth, instead of flowering,
would not wither. And Manwe said to Melkor: “This possession shall not be yours, for others have
labored here no less than you.” Thus began the struggle between Melkor and the rest of the Valar51.
This means that during the period of creation of the sources, the information reflected in them
about the achievements of previous eras was preserved.
It is very likely that in the legal sphere, the achievements gained earlier were not neglected over
time (with the exception of periods of obvious decline in morals), but were included in the current
system of regulation of social relations;
secondly, it is assumed that during the last century of the Third Age there was no significant
development. This assumption is based on those fragments of sources from which it follows that the
development of law (especially private) in Middle-earth was very gradual. So, in a letter to one of the
readers (ca. 1963) J.R.R. Tolkien noted that the Numenorean king "ruled <...> the state within the
framework of the ancient law, which he put into practice (and interpreted), moreover, he did not create
it himself"52.
The sources indicate that the Laws (with a capital letter) were intended for long-term storage in
Nýmenor and were written in the Quenya language, which was not used as a colloquial language and
which was studied only by scholars and nobility53.
Finally, it is known that the hobbits "the wisdom of kings <...> attributed all the laws that they
used, and observed them voluntarily: after all, these were the Rules, ancient and fair54. "
Based on the above fragments, D.Ya. Godkin draws conclusions about the deep traditionalism
of the legal culture of the people of Middle-earth and the extraordinary stability of their legal tradition,
48
And Sknazy S.I. Basic questions of the theory of socialist civil law. M., 20 0 8. S. 58–59 .
Muromtsev S.A. On the Conservatism of Roman Jurisprudence: An Experience in the History of Roman Law //
Muromtsev S.A. Selected Works on Roman and Civil Law. M., 2004. S. 162.
50
Ain. [2] 8. Translation by N.A. Chertkova.
51
Ain. [2] 10. Translation by N.A. Chertkova.
52
L 244 324. Translated by S.B. Likhacheva.
53
A&E Notes 19,278.
54
F.R. Pr. 3 12. Translation by A.V. Nemirova.
49
9
noting that the Laws were written for centuries, and the best legislator is the one who only discovered
and renewed the norms that existed from ancient times55.
Such an attitude to law is very reminiscent of the legal consciousness of the peoples of the early
Middle Ages. As noted by A.Ya. Gurevich, in the barbarian "truths" as a whole, it was not the
legislative initiative of the sovereigns that was recorded, but, first of all, and primarily the folk custom.
Its peculiarity was traditionalism and immutability. The usual norms were treated as indestructible,
sometimes sacred, institutions that enjoyed the greater authority, the older they seemed56;
thirdly, it is assumed that despite the existence of certain specific differences between legal
orders, in the most significant aspects they provided for similar regulation. To confirm the correctness
of this assumption, we can cite Aragorn's statement (during the already mentioned meeting with a
detachment of Rohan horsemen led by Eomer): “Good and evil did not change places: as before, so
now, as with elves and dwarves, so with people. It is only necessary to distinguish one from the other
- in your own house, just like in the Golden Forest57.
In addition, due to the limited volume of the publication, unfortunately, we will have to neglect
a number of interesting, but secondary aspects of the case under consideration from the point of view
of the theme of the collection. We are talking in particular about the fact that demands are made not
by one private person to another, but by a representative (Bard) acting on some basis on behalf of a
group of persons who belong to one political entity (Esgar otu), the monarch (Thorin) of another
political entity ( Kingdom Under the Mountain).
It is noted in the literature that in traditional societies, collective expectations (of a certain
behavior of individuals) dissolved the individual in the group. The violation of explicit or implicit
promises was atoned for by other members of the group and the offender's children, and compensation
was received not only by the injured individual, but also by his group and his children. The selection
of individuals from the group occurred gradually58.
As N. Rulan pointed out, in the community model, preference is given to a single type of
obligation - an obligation to the community. Depending on the situation, the group may be involved
in the obligation directly and the individual indirectly, or vice versa. In all cases, the interests of
groups and individuals are interrelated: to varying degrees, the interests of groups always exist. Any
non-fulfillment of an obligation represents, to one degree or another, a detriment to society59.
It seems appropriate to point out that the idea of representation was known to the peoples of
Middle-earth. So, J.R.R. Tolkin in a letter to A.K. Nannu (presumably late 1958 - early 1959) pointed
out that among the hobbits, each of the spouses "was considered a full representative of the other in
the event of his absence (including death)"60.
The topic of posthumous representation, exotic for modern legal orders, is, unfortunately, not
fully covered in the sources.
Other issues of representation, issues of private international law and procedural issues in this
case are forced to be left without due attention.
General characteristics of tort law. The final demand of the Bard to Thorin is formulated as
follows: “In the last battle, Smaug destroyed the dwellings of the Esgarothians <...> They helped you
in your trouble, and in return you brought them destruction, even if unforeseen.61”
As can be seen, this claim is based on Smaug's causing damage to the property of the inhabitants
of Lake City and the assertion that there is a connection between Thorin's actions and the harm caused.
This gives grounds for the preliminary qualification of the claim in question in terms of modern civil
law as a tort.
In the IV century. BC. Aristotle in "Nicomachean Ethics" wrote that directive (i.e. private) law,
acting in mutual exchange ( συναλλαγµατα ), consists of two parts. According to Stagirite, exchange
55
Godkin D.Ya. The law of the Valar in the legal tradition of the Eldar and the Dúnedain // History of Arda:
[website]. [2013]. URL: http://tolkien-study.org/index.php/articles/289-valar-law (accessed 02/22/2014).
56
Gurevich A.Ya. Problems of the genesis of feudalism in Western Europe // Gurevich A.Ya. Selected works:
Ancient Germans. Vikings. M.; SPb., 2014. S. 247.
57
TT III 2 [15] 570. Translated by V.S. Muravyova, A.A. Kistyakovsky.
58
Commons J.R. Legal foundations of capitalism. M., 2011. S. 271–272.
59
Rulan N. Decree. op. S. 139.
60
L 214 293–294. Translation by S.B. Likhacheva.
61
H XV [3] 306. Translated by V.A. Matorina.
10
can be arbitrary ( ηεκουσια ) and involuntary ( ακουσια ). Arbitrary such as purchase, sale, loan,
pledge, loan, deposit, payment (they are called arbitrary because the beginning of these exchanges
depends on our will). Involuntary exchange is carried out secretly (theft, fornication, drunkenness
with a love potion, pimping, poaching slaves, murder on the sly, perjury) or involuntarily (shaming,
captivity, killing, robbery, mutilation, abuse, humiliation)62.
Aristotle, further, believed that justice in exchange, against the will, is, firstly, the middle
between a kind of profit and loss, and, secondly, the possession of a fairly equal share before and after
the exchange63.
In the II century. the Roman jurist Gaius wrote in his Institutions that the main division of
obligations “falls into two kinds; every obligation arises either from a contract or from a tort64.
The Latin word “delict” itself ( delictum ), meaning an offense, causing harm, comes from the
verb delinquere (to make a mistake), and it was the responsibility for the delict that laid the foundation
for the development of the concept of “obligation” ( obligatio )65.
Starting from Francis Connan ( XVI century), the literature suggests that it was the Aristotelian
division of exchange that could lead Gaius to the idea of dividing obligations into contractual and
tort66.
In the sources of Middle-earth, the understanding of the division of obligations into contractual
and tort, and even more so, their opposition is not reflected. However, there are sufficient examples
of both types of obligations in the existing documents. For example, from a civil law point of view,
the entire history of the campaign of the dwarves from Bilbo to Erebor reflected in The Hobbit is
essentially a sequence of legal facts of the conclusion of an agreement between them and the
subsequent change and termination (including the execution) of the obligations arising from this
contract. The same can be said about Bilbo's game of riddles with Gollum (especially in the original
version of this episode67). Often the text of the source is reduced to reasoning about the proper and
permissible behavior based on the essence of the agreements.
There are much fewer examples of tort obligations in the sources (despite the abundance of
descriptions of the torts themselves). Nevertheless, the notion that the infliction of harm creates an
obligation for the tortfeasor to compensate for it is reflected in a number of fragments, which are
discussed in detail below.
Wergeld. In the early Middle Ages, blood feud among the Germanic peoples was gradually
replaced by wergeld - the provision of any property in compensation for harm caused by murder68.
As L. Julliot de la Morandiere noted, the period of private revenge (the law of talion) was
followed by a period of private compositions, when instead of physical impact on the perpetrator of
the harm, the victim presented him with a demand for payment of a sum of money, the amount of
which was determined depending on the position of the participants in the legal relationship and on
the circumstances deeds69.
From the point of view of the economic analysis of law presented in the publication of F. Parisi,
it is noted that in case of blood feud, the distribution of losses and benefits between the victim's family
and the delinquent (the inflictor of harm) occurs disproportionately: the delinquent's losses are
significant, while the benefits of the victim's family are minimal. Due to this difference, from an
economic point of view, a “surplus” arises, the distribution of which can be the subject of a
transaction. If the family of the victim were to refuse retribution for a certain reward, such a settlement
would be equally beneficial to both parties. Such a reward was somewhat similar to a compensation:
its provision terminated the delinquent's obligation to personally suffer the negative consequences of
his tort in the form of revenge on the part of the victim's family. The reward was the price of refusing
62
Aristotle. Nicomachean ethics. V. II. 1131a. Translation by N.V. Braginskaya.
There. V.IV. 1132b.
64
Gai. Inst. 3. 88. Translation by F.M. Dydynsky.
65
Bartoszek M. Roman Law: Concepts. Terms. Definitions. M., 1989. S. 104.
66
See: Poldnikov D.Yu. Contractual theories of classical ius commune ( XIII - XVI centuries). M., 2011. S. 239.
67
See: Palantir. 2006. No. 50. S. 34–42.
68
See, for example: Blok M. Feudal society. Moscow, 2003, pp. 130–132; General history of state and law: In 2
vols. Vol. 1: The ancient world. Middle Ages / Ed. V.A. Tomsinov. M., 2002. S. 388–389.
69
Jullio de la Morandiere L. Civil Law of France. T. 2. M ., 1960. S. 394.
63
11
to exercise the right to revenge, carried out according to the principle of the talion "life for life"; it
was called “wergeld” (from the old Upper German Wёr - a person and Gölt - price)70.
The first mention in the sources of the payment of the wergeld (and the obligation to compensate
for the harm) is the story of the capture of the dwarf Mim by a gang of outcast robbers led by Týrin
Turambar (487 AD). As a ransom for his release, Mim undertook to provide the robbers with part of
his dwelling on Mount Emon Rud. Before fulfilling the obligation to pay the ransom by providing
housing, Mim asked to be released for a while, without giving reasons, promising to return. Since the
dwarf refused to leave as a pledge the bag he had with him (the contents of which are unknown), the
robbers did not agree to let Mim go and tied him up. Subsequently, it turned out that Mim needed to
help his son Ibun, who was wounded by an arrow from one of the robbers, but due to the failure to
receive this help, Ibun died. Learning of this, Turin said to Mim: “I consider myself in your debt; and
if I ever gain wealth, I will pay you a danved71 in full weight of gold for the death of my son <...> let
gold no longer please your heart72.
This example clearly illustrates an important feature of civil liability, which was noted by O.S.
Ioffe: after the commission of a civil offense, its consequences can be eliminated voluntarily by the
offender himself without the intervention of jurisdictional authorities73; the application of civil law
sanctions can be carried out by virtue of unilateral or joint actions of the participants in the relevant
relations74.
The first mention of the concept of "wergeld" refers to the plot of the siege of Barad-dur in
3440-3441. S.A. Then a coalition of elves, men and dwarves crushed the armies of Mordor. During
the siege, the founder and first king of Arnor and Gondor, Elendil, and his youngest son Anarion were
killed. After that, the eldest son of the king, Isildur, cut off Sauron's finger with the One Ring in battle
and took the ring as wergeld (weregild) for father and brother75.
Another episode connected with the payment of the wergeld took place after the death of the
twin brothers Falkred and Fastred, the sons of Faulquin, king of Rohan, while defending Ithilien. It
happened in 2885 T.A., i.e. only half a century before the Dwarfs marched to Erebor and the
destruction of Esgaroth. They took part in the war in fulfillment of Rohan's allied obligations to
Gondor (Eorl's oath). Then the governor of Gondor Tyurin II, who called for the help of Rohan, paid
the rich wergeld in gold to King Faulkvin76.
Gondorian society was at a much higher stage of development than Rohan. The sources note
that the Rohirrim (like the ancient English) "were simple, relatively primitive peoples, living in
constant contact with another culture, more ancient and higher"77.
In Gondor itself the payment of the wergeld may not have been practiced. But in Rohan,
reparations were probably carried out in this way. Therefore, it can be assumed that, by paying the
wergeld to the king of Rohan, the governor of Gondor wished, by following the customs of Rohan,
to emphasize respect for the allies, reverence for the memory of the fallen princes and condolences
to their crowned father.
The episode of the Bard's claims and their refutation (mainly) by Torin T.A. Shippey finds it
very similar to the calculation of the amount of compensation for murders in the Icelandic Hrafnkel
Saga78.
The title character of the saga opposes the demands of the relatives of the victims to pay vira
for the murders he committed: “You will not have vira for your brother Eivind, because you started a
shameful lawsuit for me about your first relative and received more than for him, disposing of power
70
See : Parisi F. The Genesis of Liability in Ancient Law // American Law and Economics Review. 2001 Vol.
3.No. 1. P. 82–104; Odintsova M.I. Institutional economy. 3rd ed. M., 2009. S. 156–158.
71
The English text of The Tale of the Children of Hurin uses the Sindarin word danwedh, meaning "ransom". A
more concise version of this story, given in The Silmarillion, uses the English word ransom, also meaning "ransom" (QS
21 [2] 242).
72
NCH VII [7] 131–132. Translation by S.B. Likhacheva.
73
Ioffe O.S. Responsibility under Soviet civil law // Ioffe O.S. Selected works: In 4 vols. Vol. 1. St. Petersburg,
2003. P. 197.
74
There. S. 207.
75
RP [5] 354; FR II 2 [4] 317.
76
R.K App. AI (iv) 1382; R.K App. A II 1402–1403.
77
R.K App. F II 1494. Translated by M.V. Trofimchik and V.A. Kamenkovich.
78
Shippi T.A. Road to Middle Earth. St. Petersburg; M., 2003. S. 181.
12
for six winters and good. And the killing of Eyvind and his people is worth, in my opinion, no more
than the wounds received by me and my people79.
The application of the concept of "wergeld" just half a century before the presentation of the
claims in question by Bard to Thorin allows us to draw a certain conclusion about the level of
development of tort law in Middle-earth in this era.
Thus, there are certain reasons to believe that during this period the tort law of the free peoples
of Middle-earth was at one of the initial stages of development.
Economic analysis of tort relations. Under the conditions of the law of value, as noted by O.S.
Ioffe, property relations arising from the infliction of harm are formed between different owners and
therefore must be built on an equivalent-reimbursable basis80. The award of damages and thus the
transfer of costs from the victim to the tortfeasor serve as a substitute for a voluntarily made
transaction in respect of property rights. At the same time, compensation for harm is not such an
accurate indicator of the value of a good as the price of a freely concluded contract. This may lead to
an error both in determining the amount of the price and in determining the person liable to pay the
price. These provisions serve as an important starting point for the economic analysis of tort law81.
It is necessary to replace the deal with an award due to the high transaction costs, which in most
cases may be associated with reaching an agreement on compensation for harm between the tortfeasor
and the victim82.
It is no coincidence that in the examples given, the payment of the wergeld or its promise was
not the result of a mutual agreement, but a unilateral action or the will of one of the participants in
the incident - either the person responsible for the delinquent (Turin) or the victim (Isildur).
The very significance of the transaction costs of reaching an agreement can be explained by the
fact that the mutual position of the participants in the transaction is characterized by the concept of a
bilateral monopoly.
By definition, R.A. Posner, with a bilateral monopoly, neither side has satisfactory alternatives
to contacts with the other side. Each party may be so adamant about getting the most of the potential
profit from a transaction that they never come to an agreement83.
As the author notes, dispute settlement negotiations are a classic example of a bilateral
monopoly: the plaintiff can only negotiate with the defendant, the defendant only with the plaintiff.
The larger the scope of the contractual solution, the harder the parties will bargain for a profit and the
more likely it is that the parties will eventually end up in litigation because they cannot agree on the
division of this surplus84.
In the case under consideration, only the secret transfer by Bilbo Baggins to the Bard of the
Arkenstone (an impressive gem that was of enormous value to Thorin)85 made it possible to
significantly shift the balance of negotiating opportunities in favor of the Bard and thereby move
Thorin essentially to redeem the Arkenstone by paying the compensation required from the dwarves86.
When the parties themselves cannot reach an agreement due to prohibitively high transaction
costs and resources cannot be allocated in an efficient way, the legal system acts as a substitute for
private agreement87.
With regard to determining the consequences of causing harm, this function is performed by
tort law.
79
Saga of Hrafnkel, Godi Freyra // Icelandic sagas. Irish epic / Comp., intro. Art. and note. M.I. Steblin-Kamensky,
A.A. Smirnova. M., 1973. S. 161.
80
Ioffe O.S. Decree. op. C. 216.
81
Schafer H.-B. Tort Law: General // Encyclopedia of Law and Economics. Vol. 2: Civil Law and Economics / Ed.
by B. Bouckaert and G. De Geest. Cheltenham, 2000. P. 571–572.
82
See: Odintsova M.I. Economics of law. M., 2007. S. 312; Shmakov A.V. Economic analysis of law. M., 2011. S.
213.
83
Pozner R.A. Economic analysis of law: In 2 vols. T. 1. St. Petersburg, 2004. P. 83.
84
There. T. 2. S. 743.
85
H XVI [2] 314.
86
H XVII [1] 317–320.
87
Shmakov A.V. Decree. op. C. 87.
13
Recent history of tort law. As H.-B. Schafer, the scope and importance of tort law has
increased significantly only in the last 200 years: before the industrial revolution, tort law was a
relatively insignificant branch, where “shy horses” were considered an important cause of damage88.
M.I. Kulagin noted that two factors had a decisive influence on the evolution of the legal regime
of property liability: scientific and technological progress and the socialization of production. On the
one hand, scientific and technological progress has led to the emergence of new hazardous activities,
products, and substances. The scale of any possible losses has sharply increased. Often the
consequences of certain actions appear after a long period of time, which makes it difficult to establish
a causal relationship between a harmful action and its result. On the other hand, the strengthening of
the social nature of labor often leads to the impossibility of determining the person whose actions or
inaction ultimately contributed to the onset of property damage89.
At the same time, the literature notes that in fact the world did not become more dangerous as
a result of the emergence of industrial risks: carriages continued to claim many more lives than trains,
but fire-breathing cars looked much more dangerous than horses, and individual incidents could cause
massive damage - not only to the nearest objects, but also to entire districts90.
This stage in the development of tort law was soon replaced by a new one. It is characterized
by the expansion of the practice of voluntary and compulsory insurance - both property and civil
liability for damage. The growing importance of insurance leads to a weakening of the role of tort
law.
Sources do not contain indications of the spread of insurance in Middle-earth. At the same time,
there is one episode in them, in which one can find an institution resembling abandonment at the
initial stage of development. The owner of the Prancing Pony Inn, Barliman Butterbur, paid Meriadoc
Brandybuck a refund for the ponies lost during the attack on the inn on the night of September 29-30,
3018 T.A. However, after the discovery of the pony, the innkeeper (presumably in view of the
payment of compensation) acted as if Merry had relinquished ownership of the pony in favor of the
innkeeper, i.e. the latter included them in his property: “In the end, Master Butterbur was the winner.
Later it turned out that only one horse was actually taken away. The rest fled and were found in
different parts of Bree land. The Merry ponies ran away too, and with a good deal of common sense
went to the Slopes to look for Fetty Lumpian. There they were for some time under the care of Tom
Bombadil, and were well fed. Then news of the events at Bree reached Tom's ears, and he sent them
to Master Butterbur, who thus obtained five good ponies at a very reasonable price91.
Material Conditions for the Development of Tort Law in Middle-earth. From the sources
it is clearly seen that in the era under consideration in Middle-earth (even in such developed regions
as Gondor) there were no those socio-economic conditions that at the end of the 18th - beginning of
the 19th centuries. caused the development of tort law in Europe and North America.
As I.D. Kotlyarov, Arda was characterized by an agricultural way of life92. In fairness, it should
be noted a single indication of J.R.R. Tolkien in a letter to N. Mitchison (September 25, 1954) that
“with all evidence there (in Gondor. - S.T. ) there are numerous industries, although there are
practically no mentions of them93. ”
The free peoples of Middle-earth had a generally negative attitude towards such a phenomenon,
which in our civilization is optimistically called scientific and technological progress. Thus,
mechanisms and wheels are associated in sources with tools and machines for the mass murder of
people, the invention of which is attributed to goblins94.
88
Schafer H.-B. Op. cit. P. 570. Cf. example given by B.S. Antimonov: “If someone, not knowing how to ride,
nevertheless got on a hot horse and knocked down a passer-by <...> it must be recognized that the harm was caused guilty”
(see: Antimonov B.S. The meaning of the victim’s guilt when civil offense, Moscow, 1950, pp. 89–90).
89
Kulagin M.I. Entrepreneurship and Law: Experience of the West // Kulagin M.I. Selected works. M ., 1997. S.
280.
90
Jansen N. Law of Torts/Delict, General and Lex Aquilia // The Max Planck Encyclopedia of European Private
Law. Vol. 2/Ed. by J. Basedow, KJ Hopt, R. Zimmermann with A. Stier. Oxford, 2012. P. 1038.
91
FR I 11 [3] 234. Translated by A.A. Gruzberg.
92
Kotlyarov I.D. Essays on the economy of Arda. Part 1 // Palantir. 2006. No. 51. P. 7.
93
L 154 196. Translated by S.B. Likhacheva.
94
H IV [2] 74.
14
When characterizing the results of Saruman's labors in Orthank, it is indicated that "all skillful
inventions and polysyllabic inventions, for the sake of which he (Saruman. - S.T. ) left his former
wisdom, came from Mordor"95.
Tolman Cotton to the “modernization” of the mill is very clear : “Take Sandyman’s mill. Pimply
had taken it down as soon as he settled in Bag End. Then he brought many people who were to build
another, much larger mill, with many wheels and various foreign devices. Only stupid Thad was
happy with it, and now he works where his father was the owner, cleaning wheels for these foreigners.
Pimply's idea was to grind harder and faster. But before grinding, it was necessary to have grain for
grinding, and it became not more, but less. Since Sharkey came, nothing has been grinded at the mill
at all. There are hammers all the time, there is smoke and stench, and there is no more peace in
Hobbiton ... All the dirt is lowered into the water, and from there it enters the Brandywine. If they're
going to turn the Lot into a desert, they're on the right track96. "
Neither the comparison with the whistle (beep) of a locomotive leaving the tunnel, Bilbo's
squeal at the words of Thorin that many may not return from the campaign to Erebor,97 nor the
comparison with the fast train of the picture arranged by Gandalf on Bilbo's one hundred and eleventh
birthday fireworks in the form of a dragon98 is not must be misleading as to the level of transportation
in Middle-earth during the last century of the Third Age.
As D.A. Anderson, both of these comparisons are intended to impress readers of the translation
of the "Scarlet Book of the Western Limits" of the 30-50s. 20th century99
Given the very moderate level of development of economic activity and technology among the
free peoples of Middle-earth, one can also draw a conclusion about the relationship between the
functions of the tort law adopted by them.
Tort Law Systems. The initial level of socio-economic development and the development of
tort law corresponds to the recognition by the law of many separate types of harmful behavior as the
basis for the emergence of an obligation to compensate for harm.
The literature on comparative law notes that in the early stages of its development, tort law was
a conglomerate of collected together and disparate court decisions that protected very specific
material interests from equally specific manifestations of their violation by physical violence100.
Approximately in this state, tort law still remains in the legal orders belonging to the family of
common (Anglo-Saxon) law.
As E. Jencks wrote, in contrast to the rules governing contracts, the rules on offenses have not
yet left a somewhat rudimentary stage; there are separate types of offenses, but there is no general
principle that would make it possible to determine the signs of a civil offense101.
This "pluralistic" system of tort law conventionally called the system of singular torts; under it,
the victim, in order to protect his right, must bring the claim under a certain offense, otherwise it may
remain without legal protection102.
The practical disadvantage of this approach is the lack of general norms and the casuistry of the
rules.
The “continuation” of these shortcomings are certain advantages of such a system: over the
centuries of resolving a wide variety of disputes, specific rules have developed for almost “all
occasions”. At the same time, they are as close to life as possible and prepared for practical application
to actual circumstances103.
95
TT III 8 [9] 724. Translated by M.V. Trofimchik and V.A. Kamenkovich.
RK VI 8 [10] 1325–1326. Translation by A.A. Gruzberg.
97
HI 21.
98
FR I 1 [6] 36.
99
The Annotated Hobbit: Revised and expanded edition annotated by D. A. Anderson. Boston ; NY, 2002. P. 48.
100
See: Zweigert K., Kötz H. Introduction to comparative law in the field of private law: In 2 vols. Vol. 2: Contract.
Unjust enrichment. Tort. M., 1998. S. 361.
101
Jenks E. English law. M., 1947. S. 349.
102
See, for example : Wagner G. Comparative Tort Law // The Oxford Handbook of Comparative Law / Ed. by M.
Reimann and R. Zimmermann. Oxford, 2006. P. 1006; Civil and commercial law of capitalist states: in 2 hours. Part 2 /
Ed. ed. R. L. Naryshkin. M ., 1984. S. 188.
103
Wagner G. Op. cit. P. 1006.
96
15
In the absence in Middle-earth of the prerequisites discussed below for the formation of a
different structure of tort law, it can be assumed that in the era under consideration, the tort law of the
free peoples of Middle-earth could be described as a system of singular torts.
When, along with and simultaneously with the special rules governing tort liability for causing
harm in a particular case, there are general rules that imply liability for causing harm as a result of
any unlawful act, there is a “mixed” system of tort law - it is adopted, for example, in Germany and
borrowed law of Austria and Switzerland104.
The opposite of the singular tort system is the general tort system ("unitary" tort law105). The
essence of this system is to formulate a general rule that imposes on the tortfeasor the obligation to
compensate him106.
In continental Europe, as noted by K. Zweigert and H. Koetz, the efforts of legal science were
aimed at finding common criteria and eliminating historical differences in individual torts. This
gradually led to the development of the general principle of tort liability. It owes its appearance to
representatives of the direction of natural law of the 17th-18th centuries. (especially G. Grotsius and
J. Doma). Ultimately, this principle was enshrined in law in the legal order of most Western European
countries107.
The advantage of this system is the existence of general principles applicable to all offences.
However, the shortcomings of this approach serve as a “continuation” of this merit: the general norm
turns out to be overly abstract and, when applied to individual incidents, needs to be specified108.
G. Grotius formulated the idea of a general tort as follows: “We call a violation any guilt that
consists both in action and in refraining from action, contrary to how people should act in general, or
according to a certain quality. By virtue of such guilt, a natural obligation arises in the presence of
damage, namely, the obligation to compensate for it109.
Obligations in the Law of Middle-earth. Traditionally, the attitude, the content of which
forms the obligation of the offender "due to the tort, to reward the victim for all the harm arising from
the violation"110, is recognized as an obligation .
to the recognition of a tort relationship in Middle-earth as an obligation. Gimli, when he was
forcibly blindfolded before being led along with other members of the community of the ring through
Lorien, declared: "I will demand reparation for every bump and every finger that is knocked off," to
which Haldir, the leader of the detachment, the guardian of the borders of Lorien, replied: "You do
not you will have to demand compensation <...> You will be satisfied. Our trails are straight and
level111.
An indication of the requirement for compensation as a result of harm to health indicates the
obligatory nature of tort relations.
In the traditional definition of the concept of “obligation”, which has become classic for
domestic civil law, M.M. Agarkov focused precisely on the right to claim. He defined an obligation
as "a civil legal relationship by virtue of which one person (or several persons) has the right to require
another person (or several persons) to perform a certain action or refrain from performing any
action"112.
Commenting on this feature proposed by M.M. Agarkov definitions, V.A. Belov emphasizes:
“Having spoken about the subjective right of demand, we, therefore, have also spoken about the duty
that ensures it; having said before about only one obligation, we have not yet said anything about
whether it ensures any really existing right or is calculated only for its future occurrence113.
104
Civil and commercial law of foreign countries: In 2 vols. Vol. 2 / Ed. ed. E.A. Vasiliev, A.S. Komarov. 4th ed.,
revised. and additional M., 2005. S. 322.
105
See: G. Wagner. op. cit. P. 1006.
106
Wed paragraph 1 of Art. 1064 of the Civil Code of the Russian Federation (1996).
107
Zweigert K., Kötz H. Decree. op. C. 362, 372.
108
Wagner G. Op. cit. P. 1006.
109
Grotsiy G. About the right of war and peace: Three books. M., 1956. S. 419.
110
Savigny F.K. Obligation law. SPb., 2004. S. 551.
111
FR II 6 [13] 453. Translated by M.V. Trofimchik and V.A. Kamenkovich.
112
Agarkov M.M. Obligation under Soviet civil law // Agarkov M.M. Selected works on civil law: In 2 vols. Vol.
2: The general doctrine of obligations and its individual types. M., 2012. S. 18 (our italics. - S.T. ).
113
Belov V.A. Civil law: In 4 vols. Vol. 4: Special part. Relative civil law forms. M., 2013. S. 22 (sn. 10).
16
The very concept of "obligation" is not used in the sources. Meanwhile, in a number of
fragments, in a quite strictly legal sense, the concepts of "debt" and its "repayment" are encountered.
So, after the reunion of Gandalf, Aragorn, Gimli and Legolas with Peregrine Took and Meriadoc
Brandybuck in Isengard on March 5, 3019 T.A. Gimli (albeit jokingly) declared Pippin and Merry to
be his debtors, in view of the effort expended in finding them. The "debtors" in repayment of the
"obligation" treated Gimli with a part of the reserves acquired in Isengard, clarifying whether the debt
had been reduced, and receiving positive answers. Finally, handing the dwarf a pipe of smoking potion
(a boon which Gimli had long been deprived of), Pippin again asked: "Will this pay off my debt?" In
response to this, Gimli exclaimed: “Repay? <...> Most noble hobbit, I am deeply indebted to you114.
This episode, by the way, suggests that in a number of cases the fulfillment of an obligation and
its acceptance could or should have been accompanied by the pronunciation by the debtor and creditor
of more or less customary "ritual phrases".
The validity of this assumption is also confirmed by the already mentioned episode with the
capture in 487 AD. dwarf Mim by a band of rogue bandits led by Turin Turambar. As a ransom for
his release, Mim then undertook to provide the robbers with part of his dwelling on Mount Emon
Rud. (The emergence and fulfillment of an obligation under such circumstances was not an
extraordinary phenomenon. According to the information available in the sources, the vices of the
will (deceit, threats) did not call into question the validity of the transaction. It is impossible not to
recall that the dwarves, led by Thorin, hired Bilbo as a burglar (robber) solely under the influence of
deception on the part of Gandalf regarding the business qualities of the hobbit.) Providing Turin and
his accomplices with part of the living quarters, Mim clarified: “Has the ransom been paid and
accepted?”, To which Turin replied: “Paid and accepted”115.
Right (authority) for protection and tort claim. Returning to the essence of a tort obligation,
it should be noted that there is a long discussion in the doctrine on the question of the relationship
between a subjective right and the right to protection.
Proponents of one concept believe that the subjective right includes the right to defend. Prior to
the violation of the right, this authority remains in a “sleeping” form, and in the event of a violation,
it “wakes up”.
Proponents of another concept proceed from the fact that subjective rights should be divided
into regulatory and protective.
The regulatory right can be exercised through the subject's own actions (for example, when the
owner exercises the right to use the thing) or other people's actions of persons opposing him (for
example, when the borrower returns the loan amount to the lender, when the contractor performs
work in the interests of the customer). Regulatory law does not include the right to defend. Such a
right is not capable of being enforced.
In the event of a violation of the regulatory law (i.e. due to the occurrence of such a legal fact
as an offense), an independent subjective protective right arises - the possibility of a certain behavior
of a person in a conflict situation arising from the protective norm, provided to him in order to protect
the regulatory subjective right or legally protected interest. It is just capable of enforcement. The most
important means of enforcement of a protective right is a lawsuit. It also serves as a means of
protecting regulatory law. The protective right of demand, obliging a certain person to perform a
certain action and having the ability to be subject to enforcement by a jurisdictional body, is called a
claim or right to claim116.
In the case under consideration, the inhabitants of Esgaroth, prior to Smaug's attack, owned
certain regulatory multi-component real rights to their houses. (Sources do not provide a firm basis
for claiming ownership of Esgaroth.) The dragon's attack on Lake-town resulted in the unlawful
destruction of houses. As a result of their death, the real rights of the townspeople to houses ceased.
At the same time, each of the inhabitants of Esgarot, who had lost their own home, arose a legally
protected interest in restoring their property status. The remedy for this legally protected interest is
the protective right to sue - the right to demand compensation from the delinquent for the harm
114
TT III 9 [2] 732–734. Translation by A.A. Gruzberg.
NCH VII [8] 133. Translated by S.B. Likhacheva.
116
See, for example: Krasheninnikov E.A. On the theory of the right to claim. Yaroslavl, 1995. S. 5 et seq.; Belov
V.A. Civil law. T. 1. S. 402–405; 409.
115
17
caused117. As noted by O.S. Ioffe, in the general system of civil law norms, the rules on liability play
a supporting role; they are designed to ensure the protection of those social relations that are regulated
by such basic institutions as the right to property118.
Obligatory nature of tort relations. In modern civil law, the obligatory nature of tort relations
is called into question. So, V.A. Belov, defining the legal relationship of tort (extra-contractual)
liability, indicates that it consists of the subjective right of the injured person to demand compensation
for the harm caused to him from the person responsible for such infliction, and the corresponding
duty of such a person to compensate for the harm caused in full119.
Further V.A. Belov draws attention to the fact that at the time of causing harm (the emergence
of a legal relationship for compensation for harm), there is still no answer to the questions to what
extent and how the tortfeasor is obliged to compensate the victim for the harm caused. Certainty in
these matters will arise either with the conclusion of an agreement between the tortfeasor and the
victim, or with the issuance of a court decision (or from other factual circumstances, in particular
from the situation).
Before the appearance of certainty between the victim and the causer, there is a protective
relative legal relationship, but it does not correspond to the signs of an obligation. Only with the
advent of certainty does the protective obligation to compensate for damages turn into a special case
of a protective pecuniary obligation.
In addition, V.A. Belov emphasizes the absence of tort relations and such signs of obligation as
volitional character (always) and property content (in any case, when causing harm to non-property
goods)120.
At the same time, the scientist proceeds from the postulates121 of M.M. Agarkov about the
property content and the certainty of the action122 to be performed in fulfillment of the obligation123.
Questions about the moment of occurrence of a tort obligation and its relationship with a court
decision on a tort suit are far from new to civil science. Thus, L. Julliot de la Morandiere pointed out
the problem of determining the role of a judicial act in the dynamics of a tort obligation. He cited two
options for assessing this role presented in the literature.
Some authors believe that a tort obligation arises from the moment the harm is caused, the
content of this obligation is the victim's right to claim compensation for harm, and the court decision
only serves to protect this right. With this approach, the court decision itself performs only a
declarative function, proclaiming the right of the victim (creditor).
Other authors believe that the tort obligation and the rights of the victim and the obligations of
the inflictor that form its content arise precisely by virtue of the decision of the judicial act. With such
an assessment of the role of a court decision, it performs a constitutive function, i.e. gives rise to a
right to compensation.
L. Julliot de la Morandiere himself adhered to the first of these points of view. In its justification,
he emphasized that the court awards compensation only after establishing all the signs required by
law of the fact of committing a guilty harmful act. The participation of the court is required only in
view of the disagreement of the parties in terms of the existence of grounds and the amount of
compensation. Among the practical consequences of choosing the first point of view, the author cites
an assessment of the circumstances of causing harm according to the law in force on the day of the
incident, the possibility of inheriting a tort claim (in the absence of a court decision and even a claim
by the day the inheritance was opened), the calculation of the limitation period from the date of the
incident124.
117
See: Krasheninnikov E.A. Decree. op. S. 33.
Ioffe O.S. Decree. op. S. 208.
119
Belov V.A. Civil law. T. 4. S. 603–604. Wed paragraph 1 of Art. 1064 of the Civil Code of the Russian Federation
(1996).
120
There. pp. 585–589, 604.
121
“ By virtue of an obligation, one person (creditor) has the right to demand from another (debtor) a certain action,
in particular, the transfer of things or the payment of money, or refraining from action” (from v. 107 of the Civil Code of
the RSFSR 1922). Wed paragraph 1 of Art. 307 of the Civil Code of the Russian Federation (1994) .
122
Agarkov M.M. Obligation under Soviet civil law. pp. 60–63.
123
Belov V.A. Civil law. T. 4. S. 49–50.
124
Jullio de la Morandiere L. Decree. op. WITH. 431.
118
18
The connection between a tort claim and jurisdictional protection was also covered by E.A.
Krasheninnikov. He pointed to the ability of such a claim to be enforced by a jurisdictional body. The
emergence of a tort claim is accompanied by the empowerment of the victim with the right to file a
claim as a means of initiating civil proceedings for the enforcement of his claim. The claim itself will
appear in the process as the subject of judicial implementation125.
In addition, E.A. Krasheninnikov (unlike V.A. Belov)126 pointed out the possibility of
assignment of a tort claim127, i.e. singular succession in it.
By itself, this possibility does not answer the question of the correctness of recognizing a tort
relationship as an obligation. However, it also makes one think about the correctness of applying the
norms of the general part of the law of obligations to tort relations before they are specified by
agreement of the parties or by a court decision.
The need to apply a number of such rules to tort relations is obvious at least from the example
of a concession. At the same time, the refusal to recognize tort relations as obligations will require
either duplication in the norms of the latter of a significant number of norms of the general part of the
law of obligations, or their application by analogy. The practical result of both decisions will be
similar to the result of recognizing tort relations as obligations. Therefore, the value of the
delimitation in the theory of tort relations from obligations does not seem obvious.
There is no discussion of this question in the sources, however, certain data to answer it in
essence can be found. So, in the above episode, by cutting off the finger of Sauron with the One Ring
(3441 AD), Isildur took (i.e., independently appropriated ) the ring as a wergeld for his father and
brother,128 precisely as the heir of the victims.
In the main case considered in this publication, Bard makes a claim to Thorin without resorting
to jurisdictional procedure.
In March 3019 TE, when the Rohirrim camp was at the lighthouse mountain Eilenach, the leader
of the detachment, Elfhelm, tripped over Merry and bruised him, to which Merry said: “You, by the
way, put a bruise. Would you mind telling me what's going on in reparation?"129
These episodes show that, according to the views of the free peoples of Middle-earth, the right
of the victim not only to demand, but also (if possible) to appropriate compensation arises by virtue
of the very fact of causing harm.
To make such a claim, the creditor does not need either an agreement with the debtor (for the
reasons stated above, it is difficult to achieve), or a court decision (in most of the episodes presented
in the sources, there was no public authority over the parties to the tort relationship, authorized to
make a decision and capable of ensuring its enforcement) .
Functions of tort law. As noted by I.A. Pokrovsky, obligations from offenses were historically
the most ancient type of obligations. They pursued, on the one hand, the goal of compensation for the
harm caused, and on the other hand, the goal of property punishment of the offender. In the course of
evolution, the punitive function passed to criminal law, and only the compensatory function remained
for civil law130.
compensation function. Its essence lies in the transfer of the negative property effect of the
offense from the property sphere of the victim (and thus its restoration in the position in which it was
before the violation) to the property sphere of the tortfeasor or another person responsible for it131.
The task of tort law is to draw a fair boundary between those incidents that should entail such
a transfer of a negative material result, and those incidents, the results of which should remain in the
property area where they arose132.
Traditional for civil tort liability is the principle of full compensation for harm, since, as O.S.
Ioffe pointed out, restoring broken relations means completely eliminating the unlawful consequences
125
Krasheninnikov E.A. Reflections on a tort claim // Tort obligations under Russian civil law: Sat. scientific tr. /
Rev. ed. A.S. Shevchenko. Vladivostok, 2005, p. 79.
126
See text related to footnote 186on page 27 .
127
Krasheninnikov E.A. Decree. op. S. 80.
128
RP [5] 354; FR II 2 [4] 317.
129
RK V 5 [1] 1087. Translated by M.V. Trofimchik and V.A. Kamenkovich.
130
Pokrovsky I.A. The main problems of civil law. M., 1998. S. 276.
131
See, for example: Asknaziy S.I. Decree. op. WITH. 697; Ioffe O.S. Decree. op. C. 215.
132
Kornhauser LA, Revesz RL Joint Tortfeasors // Encyclopedia of Law and Economics. Vol. 2.P. 569.
19
that have occurred133, and only such a principle is able to ensure the restoration of the necessary
conditions and prerequisites for the further normal movement of the violated relations134.
However, in the literature on the economic analysis of law, two factors are noted that cast doubt
on the absoluteness of this principle. On the one hand, it reduces incentives for the victim to be
cautious and prudent, which, contrary to the objectives of tort law, can lead to an increase in the
number of accidents. On the other hand, the exhaustive implementation of this principle is impossible
due to the presence of costs for the victim, which are difficult to assess and adequately compensate
for without disproportionate expenditure of the resources of the judicial system135.
In the case under consideration, it is permissible to argue that the harm caused to the citizens of
Esgarot is subject to full compensation, since the incentives produced by tort law mainly relate to
causing harm through negligence. It is difficult to formulate such requirements for the behavior of
the inhabitants of the Lake-town, which could prevent the attack of Smaug, i.e. intentional harm. At
the same time, the amount of damage could be less with proper organization of fire extinguishing in
Esgarot. Based on this consideration (as well as on the destruction of part of the buildings due to the
defeat of Smaug by the arrow of the Bard), Thorin did not guess to put forward objections.
The restorative orientation of tort liability is also a characteristic feature of the civil law method
and thus (along with other factors - the general legal status of the parties, the nature of legal facts, the
peculiarities of the formation of the content of legal relations) determines its sectoral originality,
which makes it possible to distinguish it from other branches of law136.
Preventive (stimulating) function. The idea of the function of protecting the interests of the
victim as the central function of tort law was refuted by L.I. Petrazhitsky. In his opinion, the action
of tort law consists in creating motives for refraining from harmful actions or omissions, in
maintaining and strengthening respect and careful attitude towards another person, his rights,
interests, etc. The compensatory function of tort law is in demand when its preventive function is not
implemented. Then, following the derogation of the property sphere of the victim, the property sphere
of the tortfeasor is diminished. “This second operation, the award and recovery of the amount of
damages, useful from the point of view of the pocket interests of the entitled person, does not
represent any advantage from the point of view of the national economy and welfare: what is given
to one is taken away from another.” The justification for the compensatory function is that
compensation for damages is a sad but necessary phenomenon, a necessary evil137.
Later O.S. Ioffe drew attention to the fact that from an economic point of view, the damage
caused, strictly speaking, is generally irreparable: its elimination is inevitably associated with costs
that, in the absence of damage, society could invest in the creation of new values138.
From the priority of the preventive function of tort law also proceed the institutional direction
in modern economic science and the economic analysis of law. So, V.L. Tambovtsev notes that
compensation as such is only a redistribution of the created value. At the same time, actions that
prevent the occurrence of damage can be productive, giving higher quality, greater safety. Therefore,
the main social function of responsibility for causing harm, from the point of view of the economic
analysis of law, is to provide incentives to prevent harm139. Within the framework of this direction, it
is also noted that the compensation function is more effectively performed by the insurance system140.
At the same time, according to S.I. Asknazia, both compensatory and preventive approaches
are one-sided, and tort law (as well as the institution of civil liability) is designed to perform both
functions141.
It is from the point of view of these functions that the effectiveness of both individual norms of
tort law (and, therefore, the suitability of the legal structures embodied in them) and the entire
institution as a whole should be assessed. As A.V. Shmakov, the effectiveness of tort law is determined
133
Ioffe O.S. Decree. op. WITH. 216–217.
There. WITH. 219.
135
See: Shmakov A.V. Decree. op. pp. 214–216.
136
See: Alekseev S.S. The subject of Soviet socialist civil law. Sverdlovsk, 1959, p. 48 et seq.
137
Petrazhitsky L.I. The theory of law and state in connection with the theory of morality. SPb., 2000. S. 547–549.
138
Ioffe O.S. Decree. op. S. 215.
139
Tambovtsev V.L. Law and economic theory. M., 2005. S. 45.
140
Shmakov A.V. Decree. op. S. 214.
141
Asknazy S.I. Decree. op. WITH. 698.
134
20
by the reduction of both the total amount of damage resulting from accidents and the cost of taking
precautionary measures that reduce the likelihood of harm. This legal institution is considered
effective if it minimizes the sum of both types of costs142.
Correlation between tort and contractual claims. The Silmarillion tells of Thingol, King of
Doriath, hiring Dwarves from Nogrod to make a necklace; it was supposed to mount one of the three
Silmarils (precious stones), the history of the struggle for which lies at the heart of the history of the
First Age143.
An earlier and more detailed version of this legend, set out in the Nauglafring legend, contains
a mention that the king agreed with the dwarves on the following conditions: dwarfs <...> as soon as
seven full moons pass, they must return naugly and show the king his gold, so that it does not lose
weight or purity, and the work astonishes with skill. And then Tinvelint will say whether he likes their
work, and if not, they will leave without saying a word. If the king approves of their creation, then
from the remaining gold they will create such jewelry for him and Queen Gwenniel, which the hand
of a dwarf or dwarf has never created before144.
“For they are known to me,” Ufadin said, “both the secrets of nauglat, and the art of creating
beauty, subject only to the Noldoli, and yet the reward for our labors will be small, and we will name
it when we finish working. ”145
The king forcibly kept several dwarfs led by Upedin for seven months, while the first part of
the gold was delivered to Nogrod, processed and the products created from it were returned back. The
king liked everything created by the Karls, so the Karls ordered the processing of the second part of
the gold, and subsequently the manufacture of a necklace with a Silmaril. When it came time for the
Karls to determine the price of the work (502 AD), in addition to paying the price itself, they
demanded compensation for the retention of Ufadin and his companions: “in compensation for the
captivity of Ufadin for seven moons, seven stately elves and seven times live with us for seven years,
being our slaves and doing menial work146. In view of its obvious exorbitance, the king refused to
satisfy the last requirement, ordering that the dwarves be subjected to corporal punishment147.
Nevertheless, this legend testifies to the reflection in the minds of the people who created it of
a number of tort law ideas.
Firstly, captivity and forcible retention of a person are infliction of harm and cause a claim for
compensation.
Secondly, compensation must be proportionate to the harm caused.
Thirdly, despite the fact that the parties to the dispute (the dwarves led by Ufadin and the king
of the elves) were in a contractual (relative) relationship, none of the parties in this part appealed
either to the content of the contract or to its gaps.
Modern law presents various criteria for differentiating contractual and non-contractual claims
of persons in a contractual relationship.
As noted by R.O. Khalfin, in a number of countries competition of contractual and tort liability
is allowed: if the harm is caused during the execution of the contract and can be qualified both as a
breach of the contract and as a breach of the norm of objective law, the victim is given the right to
choose the basis of liability, i.e. the ability to bring a contractual or tort claim148. At the same time,
under French law, contractual liability occurs if the harm is caused by a breach of a contractual
142
Shmakov A.V. Decree op. S. 219.
QS 22 [3] 278–280.
144
A characteristic feature of the early sources is that they call the Elves of the Noldor gnomes (from the Greek
"thought, understanding"). The exact correspondence to it in Russian is the word "gnome", reserved by the translation
tradition for beings, in the English-speaking tradition called dwarf (dwarves), which is etymologically unjustified.
Therefore, in the translation of this text, it was decided to keep the ethnonym “dwarves” for the Noldor elves, and the
word dwarf (dwarves) is translated as “carla (carls)” ( Likhacheva S.B., Taskaeva S.Yu. “The one who dreams alone. .." //
Tolkien J.R.R. History of Middle-earth. Vol. 1: The Book of Lost Tales. Part 1 / Edited by K.R. Tolkien. B.m., 2000. S.
XVIII ; see also : Taskaeva S.Yu., Vinokhodov D.O. About dwarfs and gnomes: On the issue of translation traditions //
Palantir, 2001, No. 24, pp. 3–10).
145
BLT II IV 225–229. Translation by E.V. Tikhomirova.
146
ibid .
147
ibid .
148
For a similar judgment in the domestic doctrine, see: Fleishits E.A. Obligations from causing harm // Soviet law
during the Great Patriotic War: Civil law - Labor law. Part 1 / Ed. I.T. Golyakov. Moscow, 1948, pp. 140–141.
143
21
obligation, while in case of harm caused by a breach not of a contractual obligation, but of an
obligation based on a normative act, tort liability arises149.
A similar criterion for differentiating the basis of liability is proposed in the domestic doctrine:
if harm, even in the presence of contractual relations between the parties, is caused by a violation of
an inalienable absolute right that follows directly from the norms of objective law and cannot be the
subject of agreements, liability cannot be contractual, therefore, it is non-contractual ( tortious)150.
The abstraction of the parties to the dispute under consideration (the dwarves led by Ufadin and
the king of the elves) from the terms of the contract may indicate an awareness of the non-contractual,
i.e. the tortious nature of obligations to compensate for harm caused to such benefits (in this case,
freedom) that today enjoy absolute protection.
Composition of a civil offense. From the standpoint of the modern doctrine of tort claims, the
basis for their occurrence is a system of legally significant circumstances, called the composition of
a civil offense and including the following elements:
1) unlawful act;
2) the presence of harm;
3) a causal relationship between the unlawful act and harm;
4) the fault of the tortfeasor151.
At the same time, O.S. Ioffe emphasized that the conditions for the emergence of civil liability
are not isolated from each other: the fact of public life can therefore be qualified as a civil offense
because it is expressed in guilty unlawful behavior that entailed unlawful consequences; and only
with the help of the method of theoretical abstraction is it possible to single out individual elements
of the composition for their independent study152.
In order to qualify and assess the validity of this Bard's claim, the listed elements should be
highlighted in more detail.
At the same time, it should be remembered that the concept of "composition of a civil offense"
is relatively new in the science of civil law. Therefore, it is not necessary to look for this concept
itself, not only, despite the alleged presence of legal science in Middle-earth, in the “Scarlet Book of
the Western Limits” (which is quite predictable), but also in European civil literature until the 19th
century .
First, as noted by O.S. Joffe, only in the XIX century. the system of legal facts was
supplemented by the category of offense that was originally absent in it and by such a variety of
legally significant circumstances as merged or complex legal facts, the composition of which forms
a certain unity of events and actions necessary for the emergence or termination of legal relations.
The concept of a complex legal fact or actual composition as a basis or title of law is a kind of
analogue of the concept of corpus delicti in criminal law153.
Secondly, in domestic civil law, the synthesis of these two categories, the actual term
"composition of a civil offense", appeared only in the middle of the 20th century.
Thus, in a 1958 publication by S.S. Alekseev with reference to the works of O.S. Ioffe, G.K.
Matveeva and K.K. Yaichkov 1955–1957 noted that the concept of "composition of a civil offense"
was recognized in the literature and it is called a single category in which the results of the
development of individual conditions of liability and their entire complex are summarized154.
The appropriateness of using the category “composition of a civil offense” in the civil law
analysis as the basis for civil liability is questioned by V.V. Vitryansky.155 The scientist draws attention
to the artificiality of borrowing this category from the science of criminal law and cites the
observation of G.F. Shershenevich on the differences between criminal and civil liability. The Russian
civilist emphasized that in criminal law there is no liability without a crime ( nulla poena sine crimine
149
Civil and commercial law of capitalist countries / Ed. V.P. Mozolin, M.I. Kulagin. M., 1980. S. 291.
See: Smirnov V.T., Sobchak A.A. The general doctrine of tort obligations in Soviet civil law. L., 1983. S. 20.
151
See, for example: Belov V.A. Civil law: General part. T. 2: Faces. Good. Data. M., 2011. S. 878.
152
Ioffe O.S. Decree. op. S. 253.
153
Ioffe O.S. Legal relationship according to Soviet civil law // Ioffe O.S. Selected works: In 4 vols. Vol. 1. St.
Petersburg, 2003. P. 159.
154
Alekseev S.S. On the composition of a civil offense // Jurisprudence. 1958. No. 1. S. 47.
155
See: Braginsky M.I., Vitryansky V.V. Contract law. Book One: General Provisions. M., 2001. S. 707–710.
150
22
), while in civil law liability for harm caused by one person can be assigned to another person who
did not commit the violation156.
Instead of the category “composition of a civil offense” V.V. Vitryansky proposes to consider
the violation of subjective civil rights as the only and general basis for civil liability. The requirements
established by law, the observance of which is necessary for the application of such liability, the
specified author recommends considering the conditions of civil liability, referring to them the
wrongfulness of the violation, the presence of losses (harm), causality and guilt157.
It is easy to see that V.V. Vitryansky refers to the conditions of liability the same circumstances
that are traditionally included by the doctrine in the composition of a civil offense as its elements (see
above).
At the same time, the circumstance, in unity with the conditions for its occurrence, the
requirement for which follows from the rule of law and in the presence of which such a circumstance
is recognized as a legal fact, according to M.A. Rozhkova is precisely covered by the concept of the
composition of a legal fact158.
Therefore, the objection of V.V. Vitryansky against the use of the category "composition of a
civil offense" seems to be terminological rather than meaningful.
Object of a civil offense. Illuminated above on the example of the conflict between the king of
elves and the dwarves, the question of the relationship between contractual and tort liability makes
the specificity of the model of a civil offense more obvious. Unlike corpus delicti, in the interpretation
of many researchers, the corpus delict does not contain such an element as the object of encroachment
.
This category itself is being studied in civil literature (for example, O.S. Ioffe considered the
legal relationship and the legal norm fixing it as a single object of encroachment159), but, as a rule,
the object of encroachment is not included as an element in a civil offense.
At the same time, V.F. Yakovlev includes the object in this composition. The author points out
that the object of the offense is a specific subjective right of the victim. It is possible to demand the
application of civil law sanctions only insofar as there has been an infringement on a subjective right,
and this right has really been violated160.
In most cases, the harm caused as a result of a tort and compensated on the basis of tort liability
damages the benefits provided with absolute protection. In other words, the object of the tort in most
cases are absolute benefits. They can be violated by any person and therefore are protected from
encroachments by "everyone and everyone", who in most cases are not in any contractual (relative)
relationship with the victim regarding the violated good.
In the case under consideration, the basis of the tort claim is the destruction of the dwellings of
the citizens of Esgarot. From a legal point of view, we are talking about an infringement on the
property (ie, absolute) rights of the inhabitants of Lake City in relation to their residential premises.
It must be emphasized that despite the damage or destruction of things as the most frequent
result of offenses, the things themselves are not the object of encroachment, which lies in the violated
legal relationship.
The value of the home was deeply rooted in the public mind of the free peoples of Middle-earth.
Arda itself was seen in their myths as "the dwelling place of the children of Ilúvatar" created by the
efforts of the Valar: making a dwelling place for the Children of Ilúvatar"161.
Relative rights (primarily the obligatory rights of a creditor of contractual origin), on the
contrary, may be violated by a predominantly obligated participant in the relevant relationship. Such
a violation is considered not as a tort, but as a contractual violation, and entails not a tort, but a
contractual liability of the violator of the contractual obligation.
156
Shershenevich G.F. General theory of law: In 2 vols. T. 2. M., 1995. S. 269.
Braginsky M.I., Vitryansky V.V. Decree. op. S. 710.
158
Rozhkova M.A. Legal facts of civil and procedural law: Agreements on the protection of rights and procedural
agreements. M., 2010. S. 21.
159
Ioffe O.S. Responsibility under Soviet civil law. S. 286.
160
Yakovlev V.F. Coercion in civil law // Yakovlev V.F. Selected works. T. 2: Civil law: history and modernity. Book.
1. M., 2012. S. 701.
161
Ain. [3] 10. Translation by N.A. Chertkova.
157
23
At the same time, the doctrine expresses an opinion on the possibility of applying the rules on
tort liability even when a third party unlawfully interferes with the creditor's right to claim162.
Thus, in the famous article on absolute and relative rights, V.K. Reicher points to the possibility
of a tort violation of obligations (relative) rights not by a party to an obligation, but by a third party163.
At the same time, most of the examples cited by him are difficult to recognize as convincing.
The first refers to the violation of absolute (real) rights in essence ( deprivation of the tenant of
possession of the leased thing164), which, only due to the traditional features of the taxonomy of
legislation or by mistake, are classified as relative (obligatory)165.
Therefore, tort claims due to damage to the dwelling could be presented not only by the citizens
of Esgarot - the subjects of the most complete real right to residential premises, but also by the
subjects of limited real rights, in particular, tenants of the housing stock.
The second example refers the reader to a particular decision of the Roman legal order: by
virtue of the exclusive rule “ periculum est emptoris” (the buyer bears the risk of accidental loss of
the sold item), damage or destruction by a third party of the goods (material object of obligation)
before it is transferred by the seller to the buyer entails the termination of the seller’s obligation to
the buyer166, however, gives rise to a tort claim in the buyer against the offender167. This decision, as
noted by I.B. Novitsky, sharply disagrees with the general principle of Roman law “casum sentit
dominus” (the consequences of accidents that can befall a thing have to be felt by its owner), and
Romanism has made a lot of efforts to explain this special exception. Moreover, all explanations are
based on the accidents of the historical development of the institution of sale in Roman law168.
Finally, the third example is based on abstract formulations of civil law norms on the grounds
of tort liability, gravitating towards the concept of general tort169. With their literal interpretation, it
turns out that it is permissible to bring a third party to responsibility for violating not only the absolute,
but also the law of obligations. Meanwhile, neither a convincing hypothetical example, nor even an
example from law enforcement practice in the article by V.K. Reicher is not given.
Two more convincing examples of tort liability for violation of relative rights were given by
E.A. Krasheninnikov. So, a debtor not notified of the assignment of a claim can be released from his
obligation not only through performance to the assignor, but also as a result of forgiveness by the
latter of the debt170. Such forgiveness would terminate the rights of the assignee, but give rise to a tort
claim against the assignor. Another example: in the event of an illegal exclusion of a member from
the corporation, he loses the right to membership, as a result of which the corporation is obliged to
compensate him for the harm caused171.
Interesting examples of tort violation by a third party of the interests of the parties to the
obligation can be gleaned from the system of common law torts. Thus, E. Jencks mentioned such a
tort as deliberately and without legal grounds inducing a third party of a party to a contract to violate
it to the detriment of the other party. Prior to the Second World War, it seemed doubtful to recognize
this tort in relation to contracts exhausted by a single performance. This tort was seen in the case of
inducement to breach a continuing contract (between a seller and a "regular" buyer, between a
principal and an agent, between an employer and an employee). A special case of this delict was
“deprivation of services”172, which consisted in inducing a servant to violate an agreement with the
master or in deliberately hiding the servant after he violated the agreement, or in seducing a servant
by a third party if it caused a serious illness or the birth of a child and, as a result, the impossibility
162
Krasheninnikov E.A. Reflections on tort claims. pp. 77–78.
See: Raikher V.K. Absolute and relative rights (to the problem of division of economic rights). In particular, in
relation to Soviet law // Bulletin of Civil Law. 2007. No. 2. S. 148.
164
See, for example, Art. 170 of the Civil Code of the RSFSR (1922), art. 305 of the Civil Code of the Russian
Federation (1994).
165
For more details, see, for example: Belov V.A. Rights to use someone else's thing // Bulletin of the Supreme
Arbitration Court of the Russian Federation. 2010. No. 1. P. 6–57.
166
D. 18.6.8pr .; I. 3.23.3.
167
D. 4.3.18.5; D. 4.3.19.
168
Roman private law / Ed. I.B. Novitsky, I.S. Peretersky. M., 2004. S. 370.
169
See, for example, § 1293 AOGU (1811), § 823 GGU (1896), Art. 403 of the Civil Code of the RSFSR (1922).
170
See, for example, paragraph 3 of Art. 382 of the Civil Code of the Russian Federation (1994).
171
Krasheninnikov E.A. Reflections on a tort claim S. 78.
172
And this is 23 centuries after Aristotle referred to the “involuntary exchange” the poaching of slaves!
163
24
of continuing to perform contracts. There have even been proposals to consider it a tort to persuade
someone, without sufficient reason, not to enter into a contractual relationship with another person
who has a serious right to expect that the contract will be concluded173.
Similar torts under French law (“poaching” from the employer of a qualified worker working
under a fixed-term contract by the owner of a competing enterprise; “repurchase” by a third party
from the owner of goods already promised under a preliminary contract to another buyer) is also
mentioned by R. Savatier174.
The illegality of destruction. According to the myths reflected in the sources, the most
important (in terms of legal force) type of law in Arda was axan (axan) - a law, a rule, a
commandment, originally coming from the single god Iluvatar (Eru). This word comes from the word
"akasan", meaning "He speaks" in relation to Eru175.
The Study on the Transmission of Thoughts points to the universal aksan, by virtue of which
"no one can directly by force or indirectly by deceit take away from another what the latter is entitled
to have and keep as his own"176. Although this axan primarily prohibits theft (robbery, fraud), it can
be interpreted more broadly as the principle of the inviolability of values (both property and
intellectual), which prohibits not only their theft, but also damage.
The establishment of the wrongfulness of a harmful act is the most important aspect of such a
fundamental principle of tort liability as the principle of legality. As noted by O.S. Ioffe, the legal
regulation of social relations introduces certainty into the scope of requirements that their participants
can make to each other; the possibility of imposing responsibility regardless of the requirements of
the law (as well as exemption from liability in case of violation of these requirements) deprive the
civil circulation of the necessary stability and certainty, giving rise to lack of rights and
arbitrariness177.
In domestic literature, at one time the question was discussed whether the illegal nature of
behavior is an element of the offense or illegality is “spilled” throughout the composition, acting as a
general expression of all its other elements178. O.S. Joffe rightly described this dispute as "purely
scholastic"179.
The condemnation of destruction was reflected in the myths of the earliest stages of the
formation of Arda. The first mention of the malicious destruction of what was created by others and
is of significant value to them is associated with the name of Melkor, the fallen spirit, personifying
the forces of evil. Thus, it is indicated that "as soon as the Valar began any work, Melkor destroyed
what they had done or spoiled it"180 and that he "spoiled and destroyed everything that Aule
created"181. The motive for the destruction and damage by Melkor of various goods (along with theft)
is repeatedly repeated in myths. These plots undoubtedly testify to the negative assessment of such
acts, to the recognition of their atrocities .
Therefore, it seems justified to assume that, as the peoples of Arda acquired law, following
morality, it gave such actions an equally negative assessment. This assumption can be confirmed by
the fact that before the decisive battle in the War of the Ring at the Morannon (Black Gate of Mordor),
representatives of the coalition of the free peoples of Middle-earth on March 25, 3019 T.A. demanded
the representative of Sauron to restore the destroyed: “Let the Black Lord appear! We've come to
bring justice. The Lord of Darkness is guilty of attacking Gondor and ruining our lands. The King of
Gondor demands that he make amends and retreat forever182. "
This episode, by the way, also confirms the fact that destruction, according to the ideas of these
peoples about justice, is not only considered a violation, but also entails the emergence of claims from
173
Jenks E. Decree. op. WITH. 367–369.
Savate R. Theory of Obligations: A Legal and Economic Essay. M., 1972. S. 245.
175
Q & E 399; Ó K 31.
176
Ó K 27. Our translation. – S.T.
177
Ioffe O.S. Responsibility under Soviet civil law. pp. 210–211.
178
Trainin A.N. Composition of a crime according to Soviet criminal law. M., 1951. S. 79–83.
179
Ioffe O.S. Responsibility under Soviet civil law. S. 304.
180
Ain. [3] 12. Translation by N.A. Chertkova.
181
Val. [1] 18. Translation by N.A. Chertkova.
182
RK V 10 [7] 1162. Translated by V.A. Matorina (published under the pseudonym V.A.M.).
174
25
the victims to the violator to correct the negative consequences of the deed. The refusal of the forces
of evil to fulfill this requirement does not in the least hinder the above conclusions.
Thus, in the case considered in this publication, the destruction of the dwellings of the citizens
of Esgarot seems reasonable to recognize as an unlawful act, giving rise to an obligation to
compensate for the harm caused.
Liability for damage caused by a third party. The claim for damages caused by the dragon
is not made against Smaug's heirloom. The claim in question is made to a property mass stored in
Erebor and under the control of the dwarves, led by Thorin. The latter drew Bard's attention to this in
his objections, pointing out: "No man has the right to own the treasures of the dwarves, because
Smaug, who stole them from us, also deprived us of our homes and lives. It is not his treasure to pay
for his crimes183. "
In one of the early versions of the description of this episode, Thorin's objection includes the
phrase: "The treasure does not belong to Smaug so that his heirs pay for his atrocities at the expense
of this wealth184. " As J.D. Reitliff, this phrase has been revised from version to version, perhaps in
order to eliminate the problematic idea of "Smaug's heirs"185.
It should be noted that the literature expresses an opinion about the strictly personal nature of
the tort relationship, both from the passive and from the active side. According to V.A. Belova, the
tort relationship ends with the cessation of the existence of the person obliged to compensate for the
harm186.
If we recognize this point of view as correct, then if the dragon had heirs, they would not be
responsible to the citizens of Esgaroth for the harm caused by their testator (Smaug), even within the
value of the ancestral property.
For the same reason, if on the night of November 12-13, 2941 T.A. the house belonging to the
parents was destroyed by Smaug, and a day later these parents died (for example, from hypothermia),
leaving the children homeless orphans, the latter do not inherit the tort claims of the parents due to
the destruction of their property.
It seems that the termination of a tort claim by the death of the original debtor and (or) the
original creditor in a tort obligation and the impossibility of succession in it do not meet the
elementary goals of regulating property relations. Therefore, it seems more logical and fair to
recognize the admissible succession in a tort claim, moreover, both on the obligated and on the
authorized side.
Thorin's objection that the treasures of Erebor did not belong to Smaug is obviously based on
the idea that the harm should be compensated from the property of the harmer.
In Anglo-American jurisprudence, a popular view of property as a “bundle of rights” is a large
set of various powers that cannot even always be reduced to the triad of possession, use and disposal
accepted in Russian civil law. The author of the well-known article A.M. Honore, as one of the "rods"
of this "bundle", pointed to "the possibility of taking things away in payment of a debt187. " Thus,
such an opportunity accompanies the right of ownership and belongs only to the owner188.
In the incident under consideration, the debt to the inhabitants of Esgaroth arose from Smaug
(the inflictor), and in payment of this debt they demanded the issuance (selection) of things from the
dwarves led by Thorin.
In a large number of cases, the tortfeasor is either out of reach for the victim, or not rich enough
to compensate for the harm. In such a situation, the victim, for obvious reasons, is tempted to reveal
such a connection between at least some element of the tort and an accessible wealthy subject (in the
English-language literature, such a subject is called “the deepest pocket”), which could serve as a
justification for recovering compensation from such a person. .
183
H XV [3] 306–307. Translation by V.A. Matorina.
Rateliff JD The History of The Hobbit. London, 2011. P. 648. Our translation. – S.T.
185
ibid. P. 656.
186
Belov V.A. Civil law. T. 4. C. 605.
187
Honoré AM Ownership // Oxford Essays in Jurisprudence / Ed. by AG Guest. Oxford, 1961. P. 112–128. See
also: Kapelyushnikov R.I. Ownership: (Essay on modern theory) // Otechestvennye zapiski. 2004. No. 6. S. 65–81.
188
Wed sub. 1 p. 2 art. 235 and Art. 237 of the Civil Code of the Russian Federation (1994).
184
26
The literature on the economic analysis of law notes that societies with poorly developed
insurance markets tend to shift the costs of incidents that caused harm to the most affluent individuals,
which in our time are often large companies189.
It can be assumed that it is this desire that is one of the driving forces for the development of
tort law in the direction of finding principles and grounds for imposing liability not only on the direct
tortfeasor, but also on an uninvolved, but prosperous payer.
Rationale for Thorin's Responsibility. It is clear that in view of the death of Smaug and the
absence of wealthy heirs, the rule of compensation for harm at the expense of the property of the
inflictor in this case did not suit the inhabitants of Esgaroth, led by Bard. Their interest was to justify
the recovery of compensation from the property mass stored in Erebor.
It is no coincidence that the demand is made not to Thorin and (or) his companions in a certain
amount, but in essence to the property mass personified by Thorin, stored in Erebor. To do this, it was
necessary to establish, firstly, the connection of Thorin and (or) his companions with the harm caused
by Smaug, and, secondly, the connection of Thorin and (or) his companions with the indicated
property mass, moreover, such that Thorin could answer this mass for the tort imputed to him.
The solution of the second task was not difficult from a practical point of view, since Thorin
positioned himself as the person in control of the property mass of Ebor .
From a formal legal point of view, Thorin's powers required additional justification. In Erebor,
treasures were kept that belonged to various dwarves on the day of Smaug's attack. Some gnomes
(like Thorin himself) survived Smaug's attack, so they retained ownership of their valuables (if the
possibility of their individualization remained). Some gnomes died during the attack or died later, but
left heirs, to whom the rights to the assets belonging to their ancestors passed (again, while
maintaining the possibility of individualization; such artifacts included, for example, the Arkenstone).
Finally, some gnomes left no heirs, and their property, having become escheated, passed to the
treasury (if such concepts were known in the kingdom Under the Mountain). The limited volume of
the publication makes it necessary to leave the solution of the problem of substantiating or refuting
Thorin's powers until better times.
As for the connection between Thorin and the harm caused by Smaug, then, according to the
Bard, it is Thorin who should be responsible for the destruction of the houses of the inhabitants of
Lake-town. This is evidenced by the words: “In the last battle, Smog destroyed the dwellings of the
Esgarotians, and I serve the Ruler. I will speak on his behalf and ask you: do you have compassion
for the misfortunes and sorrows of his subjects? They helped you in your trouble, and in return you
brought them destruction, even unforeseen190.
Three conclusions can be drawn from this fragment: first, according to the Bard, there is a
causal relationship between the actions of Thorin and the destruction; secondly, Bard pays attention
to the question of guilt, but considers Thorin's guilt unintentional; thirdly, despite the absence of intent
in Thorin's actions, Bard believes that Thorin should be responsible for the destruction of the
Esgarothians' dwellings with the property stored in Erebor.
Each of these conclusions must be analyzed in more detail, both from the point of view of the
doctrine of tortious obligations, and from the point of view of the customs and laws of the free peoples
of Middle-earth.
As can be seen from the statement of circumstances given at the beginning of this publication,
Bilbo's chatter made it clear to Smaug that the Esgarothians were helping the dwarves in organizing
a campaign to Erebor, and thereby provoked the dragon to destroy the Lake-town. In order to
substantiate Bard's tort claims against Thorin with these circumstances, it is necessary, on the one
hand, to determine Bilbo's involvement in the act of Smaug, and on the other hand, to justify the
prosecution of Thorin for Bilbo's actions.
Privacy violation. Bilbo's involvement could be justified in two ways. His actions could be
seen as an independent tort. An example of such a singular tort in the modern law of the countries of
189
Schafer H.-B. Op. cit. P. 574.
H XV [3] 306. Translated by V.A. Matorina. In the English text, the word "undesigned" is used, which is more
correctly translated as "unintentional", "unintentional". It is these definitions that most accurately answer the question
about wine and its forms.
190
27
the Anglo-Saxon legal family, received by the European legal doctrine, is breach of confidence
(breach of confidence).
In the Model Rules of Private European Law, “harm caused as a result of the dissemination of
information about the confidentiality of which for the victim, due to the nature of the information or
the circumstances associated with its receipt, the disseminator knows or can be assumed to know, is
a legally significant harm” (Art. 6.–2:205), i.e. gives rise to a tort claim (art. VI.-1:101 para. (3))191.
K. von Bahr's commentary indicates that the inspiration for the formulation of this rule was the
rules on the violation of confidentiality, originating from the common law192.
These rules, derived from a number of precedent decisions issued by the courts of Foggy Albion
since the middle of the 19th century.193, provide for cases where the obligation to keep information
secret arises, objective details of confidentiality, signs by which the person receiving information
must identify it as confidential, the relationship between the right to respect for private and family
life and freedom of expression (respectively, Articles 8 and 10 of the Convention on protection of
human rights and fundamental freedoms194)195, common law and equitable remedies in cases of
violation of the duty of confidentiality, etc.196
Recognition by judicial practice and doctrine of such a tort as a violation of confidentiality has
become relevant and possible only in a society with developed mass media (at least the print press).
The possibility of information torts in Middle-earth. Whether such a delict is conceivable in
Middle-earth, taking into account differences in socio-economic conditions, is difficult to establish
with certainty.
In the Shire, already at the time under consideration, the postal business was well developed,
and there was even a postal service run by the mayor197. Judging by the fact that at the first appearance
of Gandalf at Bilbo, the latter took out "morning mail"198, correspondence was delivered to the
addressees at least twice a day. The need for such a frequency could only be due to the large volume
of mail sent, a significant part of which should have been texts: "Everyone who knew how to write
constantly sent letters to their friends and relatives who lived further than the length of an afternoon
walk"199.
Sources, unfortunately, do not give grounds to establish whether the correspondence could at
least partly be not handwritten, but printed. There was a reading public in the Shire, there were books
and even libraries, it was customary to let acquaintances read their books. So, when leaving the Shire,
leaving an empty bookcase as a gift, Bilbo in a gift note indicated: “To the collection of Hugo
Bracegirdle from the donor” (Hugo collected books and never returned those taken from others)200.
Such an attitude towards books indirectly testifies to their wide distribution and relatively low price,
which is possible only if the books are printed. At the same time, the methods of producing books
(other than handwritten) are not fully covered, therefore, it is difficult to state with certainty the
presence or absence of book printing in Middle-earth (as a prerequisite for the recognition of literary
property by the law and the tort of breach of confidentiality). The hypothesis of the invention of the
printing press in Numenor is supported only by circumstantial evidence201.
The self-evident rule that confidential information entrusted to the interlocutor should be kept
secret was clear and recognized as requiring observance in Middle-earth. However, it didn't happen
191
Translation by A.K. Gubaeva. The use of the phrase “breach of trust” in the translation should not be taken as
an indication of the connection between the tort in question and the concept of fraud. This delict can take place both in
the absence of a mercenary motive, and in the absence of malicious intent, i.e. in case of transfer of confidential
information as a result of negligence.
192
BarChr. v. Principles of European Law. Vol. 7: Non-Contractual Liability Arising out of Damage Caused to
Another. München, 2009. P. 467 (PEL / von Bar, Liab. Dam., Chapter 1, Article 2:205, Comments, A, 1).
193
See, for example: Prince Albert v Strange [1849] EWHC Ch J20.
194
Bulletin of international treaties. 1998. No. 7. S. 5–6, 23.
195
See, for example, Campbell v MGN Ltd [2004] UKHL 22.
196
BarChr. v. Op. cit. P. 474–476 (PEL / von Bar, Liab. Dam., Chapter 1, Article 2:205, Notes, 11).
197
F.R. Pr. 3 13.
198
HI 7.
199
F.R. Pr. 3 13. Translation by V.A. Matorina.
200
FR I 1 [10] 49. Translated by A.A. Gruzberg.
201
For more details, see: Kryukov A. Book publishing in Arda // History of Arda: [website]. [2011]. URL : http ://
tolkien - study. org / index. php / article - collection /141- arda - book (accessed 04/06/2014).
28
right away. For example, in the 5th c. F.A., when the brothers Hurin and Huor, who accidentally fell
into the hidden kingdom of Gondolin, decided to leave it, they specifically undertook to ensure
secrecy: “We did not find the way to Gondolin ourselves and still do not know for sure where this
city stands; surprised and frightened, we were brought here by air, and our eyes, fortunately, were
covered with a veil.
Then Turgon agreed to fulfill his request and said this:
'You will leave my realm the way you came into it, if it is Thorondor's will. This separation
saddens me, but perhaps very soon - according to the number of the Eldar - we will meet again.
But Maeglin <...> said he to Hurin:
“The generosity of the king is greater than you can imagine, and the law is not as severe now
as it used to be202; otherwise you would not have had any other choice but to stay here until the end
of your days.
Hurin answered him:
“The magnanimity of the king is indeed great, but if our word is not enough, we will swear an
oath to you.
And the brothers swore never to reveal the plans of the king and to keep secret everything that
they saw in his possessions203.
Thus, during this period, the obligation to maintain such a secret was not considered implied
and required a special oath.
Meanwhile, the history of law knows many examples of the development of institutions
according to the following scenario. At first, a certain obligation is considered as generated by a
special condition of a transaction of a certain kind. Over time, this obligation becomes its default
implied condition. And only by a special will such a condition can be excluded from the transaction.
In the manner described in Roman law, for example, the institution of responsibility of the owners of
ships, hotels and inns for the safety of clients' property (receptum nautarum cauponum
stabuloriorum), which is discussed below, developed204.
It can be assumed that it was precisely this path of development that the free peoples of Middleearth passed the obligation to keep secret information secret. This hypothesis can be confirmed by a
number of episodes relating to the last century of the Third Age. So, when on the way from Buckland
to Bree, Frodo and his comrades met elves and Frodo demonstrated knowledge of the high dialect
(Quenya), the leader of the elves, Gildor, said to his companions: “Be careful, friends! <...> Do not
talk about secrets205.
A little later, Merry, persuading Frodo to take himself, Pippin and Sam as companions, said:
"You can trust us with any secret of yours, and we will keep it better than you yourself.206"
Some time later, Aragorn in the Prancing Pony inn promises Frodo and his friends: "I will keep
a better secret than you yourself207. "
Based on these fragments, it can be concluded that the free peoples of Middle-earth, towards
the end of the Third Age, had a custom to keep secret information secret.
Bilbo, hiding his personal data from Smaug, thereby demonstrated an understanding of the
importance of keeping confidential information secret from the dragon. In the relevant fragment, this
approach is accompanied by an approving comment: "This is how you should talk to dragons if you
do not want to reveal your real name (which makes sense)"208.
Therefore, when revealing to Smaug the information that the dwarves received help from the
people of Esgaroth, Bilbo was clearly communicating information that the townspeople would
consider it good to keep secret from the dragon.
202
Wed Éomer's statement on page 7 : " the law became more severe" ( TT III 2 [15] 570; translation by M.V.
Trofimchik and V.A. Kamenkovich).
203
QS 18 [4] 185. Translated by N.A. Chertkova.
204
Zimmermann R. Innkeepers' Liability // The Max Planck Encyclopedia of European Private Law. Vol. 1.P. 892–
895.
205
FR I 3 [9] 106. Translated by A.A. Gruzberg.
206
FR I 5 [6] 138. Translated by A.A. Gruzberg.
207
FR I 10 [1] 214. Translated by A.V. Nemirova.
208
H XII [8] 259. Translated by V.A. Matorina.
29
Complicity and joint harm. Bilbo's actions can also be qualified not as a self-committed tort,
but as complicity in a tort committed by Smaug.
Criminal law. The institution of complicity, for obvious reasons, has been developed in more
detail in the science of criminal law than in the science of civil law.
As noted by A.N. Trainin, complicity is an institution of relatively developed law. The
systematic development of regulations on it began relatively late - only in the 18th century. In ancient
and medieval law, only separate disparate norms related to the institution of complicity can be noted.
At the same time, the absence of special provisions on it did not mean impunity for persons who,
together with the perpetrator, committed a crime or helped him in one form or another: on the contrary,
the same responsibility of all accomplices was indisputable and that is why it did not require
legislative regulation209.
For example, speaking about responsibility for complicity in Roman criminal law, T. Mommsen
pointed out: “Since no distinction was made between action and assistance in relation to
responsibility, it was not advisable to distinguish them when formulating the law210. ”
On the objective side, in the actions of Bilbo, who informed Smaug of information about those
who helped the enemies of the dragon (dwarves) - about the inhabitants of the Lake City, one can
reveal signs of both incitement (the message clearly provoked Smaug to destroy Esgaroth), and
intellectual complicity (the message in the first the queue had informational value for Smaug).
subjective side. In the science of criminal law, the question of the form of guilt of the instigator
and accomplice has long been debatable. Pointing to the predominance of a negative attitude towards
the idea of careless complicity, A.N. Trainin, however, noted the lack of unity of views on this issue
both in Russian and foreign doctrine, as well as in criminal laws before the Second World War211.
So, before the October Revolution, N.S. Tagantsev wrote that a person who acted out of
negligence, by its very nature, “cannot be an accomplice in the fault of others, cannot be held
responsible for the compatibility of his action with others. This provision is equally applicable both
to careless participation in the intentional action of another, and to deliberate participation in the
careless action of another, and, finally, to cases of joint negligence212.
At the same time, according to G.E. Kolokolova, complicity suggests that “each of the
participating persons acts in a guilty manner, and for the existence of complicity it is completely
indifferent whether the dolus or culpa falls to the share of the criminals, whether there is an agreement
between them or not”213.
The limited scope of the publication does not allow dwelling on the arguments to substantiate
and refute both of the above theses.
In the Soviet period, the statement about the possibility of careless complicity, including
careless incitement and careless complicity, was attributed to the USSR Prosecutor A.Ya.
Vyshinsky214. In a report at the first All-Union Conference on the Science of Soviet Law and State
(July 16, 1938), the author mentioned used the ideas of the English criminologist of the 19th century.
J. Stephen on making the instigator liable for any crime that is committed as a result of incitement
and of which the instigator knew or should have known215 that it could be committed216.
As later pointed out by A.A. Piontkovsky, speeches and interpretations by A.Ya. Vyshinsky
harmed the theoretical development of the problems of complicity and the practice of applying this
institution, they could easily justify objective imputation and made it possible in practice to prosecute
persons who did not actually commit them for complicity in state crimes217.
209
Trainin A.N. The doctrine of complicity. M ., 1941. S. 6.
Mommsen T. Römisches Strafrecht. Leipzig, 1899. S. 101 (quoted from Trainin A.N. Decree cit. p. 6).
211
Trainin A.N. Decree. op. S. 80.
212
Tagantsev N.S. Russian Criminal Law: Lectures: Part General: In 2 vols. T. 1. M., 1994. S. 332.
213
Kolokolov G.E. On complicity in a crime: (On complicity in general and on incitement in particular). M., 1881.
S. 50–51.
214
See: Criminal law: History of legal science / Otv. ed. V.N. Kudryavtsev. M., 1978. S. 108.
215
The wording “knew or should have known” is more typical for civil law than for criminal law, where knowledge
as an element of the subjective side of the crime is subject to proof.
216
Vyshinsky A.Ya. The main tasks of the science of Soviet socialist law // Vyshinsky A.Ya. Questions of the theory
of state and law. M., 1949. S. 119.
217
Criminal Law: History of Legal Science / Ed. ed. V.N. Kudryavtsev. pp. 107–108.
210
30
At the same time, A.A. Piontkovsky noted that the majority of domestic criminologists and
judicial practice adhered to the point of view, suggesting the need for intent to establish complicity218.
A similar point of view is shared by modern doctrine219.
Civil law. At the same time, in civil law, responsibility for complicity in the form of incitement
and complicity developed differently.
As G. Dernburg noted, the instigator harms not corpore. Therefore, from the point of view of
ancient Roman law, the question of the responsibility of the instigator under the Law of Aquilia ( lex
Aquilia, ca. 286 BC) must be decided in the negative.
Yavolen (a jurist of the late 1st - early 2nd century AD) did not always bring an action against
the instigator, but this was only a transitional stage220. The principle of a more developed law lies in
the responsibility for the harm of the person who caused it, therefore, the instigator221.
subjective side. Meanwhile, from the subjective side, Bilbo's actions should be qualified as
careless. On the one hand, Bilbo clearly had no intention of either helping Smaug or provoking him
to destroy the dwellings of the Esgarothians. This was also pointed out by Bard, justifying the tort
claim. On the other hand, the hobbit must have been aware of the danger of allusions to the use of
barrels, which are an attribute of the daily economic life of the Lake-town. The fact of Bilbo's
awareness (albeit belatedly) of the danger to which he exposed Esgaroth with his talkativeness, noted
in the sources, indicates the presence of imprudence in the actions of the hobbit.
The denial in the modern science of criminal law of the admissibility of bringing to criminal
responsibility for careless incitement and aiding does not, however, exclude the civil liability of Bilbo
(and, if the grounds are established, Thorin) for the careless incitement of Smaug or intellectual aiding
him in the destruction of the dwellings of the citizens of Esgaroth.
On the one hand, as N. Rulan notes, traditional law does not distinguish between civil, criminal,
contractual and non-contractual obligations. However, it would be a mistake to attribute this to the
inferiority of traditional legal thought. The absence of such a division of responsibility is due to the
communal nature of traditional societies, and not to their inability to make such fine legal distinctions.
The distinction between civil and criminal liability in traditional law is hindered by the fact that in all
cases the interests of groups and individuals are interrelated and, to varying degrees, the interests of
groups always exist222.
It is no coincidence that even in modern times, the material criterion for dividing the right into
private and public along the line of "interest" was criticized on the grounds that in private relations
there is often a public interest223.
In addition, one should not forget the indifference noted by T. Mommsen for the ancient right
of action and assistance in relation to responsibility.
On the other hand, even in modern law, the grounds for criminal liability (including for
complicity) and civil liability (including for joint harm) are far from being identical. As noted in
relation to the differences between delict and crime, G.F. Shershenevich, a civil offense takes place
not only where an action is punishable, but also where it, without being punished, violates a subjective
right and causes property damage224.
As part of the economic analysis of law, it is hypothesized that in societies that were in the early
stages of development, strict (guilty) liability was often preferred to liability for negligence. In
substantiation of this assumption, it is indicated that, firstly, in such societies there was a shortage of
legal specialists who could determine whether the delinquent's behavior was guilty, and secondly,
218
Piontkovsky A.A. The course of Soviet criminal law: In 6 vols. Vol. 2: General part. Crime / Ed. coll.: A.A.
Peony Tkovsky, P.S. Romashkin, V.M. Chkhikvadze. M., 1970. S. 460–464.
219
See, for example: Naumov A.V. Russian Criminal Law: Course of lectures: In 2 volumes. T. 1: General part. 3rd
ed. M., 2004. S. 293–294.
220
D. 9.2.37.
221
Dernburg G. Pandekty. T. 2: Law of Obligations. M., 1911. S. 345–346.
222
Rulan N. Decree. op. WITH. 139.
223
See, for example: Korkunov N.M. Lectures on the general theory of law. SPb., 2003. S. 209; Pokrovsky I.A.
Decree. op. WITH. 37.
224
Shershenevich G.F. Civil law course. C. 513.
31
strict liability could serve as a rudimentary form of insurance if the tortfeasor more wealthy than the
victim225.
It is possible that due to such considerations (the preference for strict liability over liability for
negligence), the claims of the citizens of Esgaroth for compensation for damage caused by the
destruction of dwellings could, according to the legal views of the era, be satisfied at the expense of
the property mass stored in Erebor.
The question of the significance of the element of guilt for the emergence of a tort obligation
was one of the key ones in the literature on tort law in the 19th and early 20th centuries.
Competition between the principles of guilt and infliction. From Roman law, medieval
European law (which, as can be seen from a number of examples, is similar to the law of the free
peoples of Middle-earth) and the law of early modern times inherited the above-mentioned principle
" casum sentit dominus "- the owner suffers the negative consequences of causing damage to property
by the onset of the event .
At the same time, the "barbarian" peoples of the early Middle Ages (in particular, the Germans)
for a long time adhered to the "beginning of naked infliction226. "
Modern tort law appears only as a response to the challenges of the industrial revolution, the
emergence of objects and activities that can cause significant harm even in the absence of negligence
on the part of the tortfeasor.
The free peoples of Middle-earth had no such challenges. Therefore, when establishing the
content of the norms of the tort law of these peoples, one should each time check the possibility of
the existence of one or another rule not only with indications of sources, but also with the conditions
noted in our civilization for the emergence of such norms in comparison with the conditions of the
economy in Middle-earth.
In the XVII - XIX centuries. in the West there have been significant changes in technology and
economics. It was they who gave rise to the need to choose the principle of imposing responsibility
for causing harm - the choice between the traditional principle of guilt (when only guilty, albeit
negligently, harm caused is compensated) and the principle of causing (strict liability, risk, when any
harm caused, including accidentally, i.e. innocently, in other words, when everyone carries out their
activities on the basis of risk)227.
The choice of the second principle means abandoning the traditional assignment of the risk of
accidental damage or accidental loss of property to its owner and transferring such risk to the subject
of activity, in the course of which harm is accidentally caused. Such a transfer is associated with the
imposition of excessive costs on the subject of any activity. They may involve making efforts to
prevent harm that is less likely to occur or less likely to be prevented by the potential victim, or may
involve making amends for harm that has been accidentally caused.
Meanwhile, the most logical and economically justified principle of risk distribution is the rule:
the risk should be assigned to the party that can prevent the onset of adverse consequences, including
the manifestation of measures of an increased degree of care and prudence. If the risk cannot be
eliminated, then it should be borne by the party that is able to compensate for the adverse
consequences at a lower cost228.
It is precisely because of this consideration that, under normal conditions, the risk of accidental
damage and accidental loss of a thing rests with its owner229, who is easier for others to take care of
its safety.
As noted by O.S. Ioffe, the practical significance of the principle of guilt lies in the fact that it
contributes to the deployment of the initiative of the participants in the turnover, who get the
opportunity to freely and freely establish relations permitted by law, without fear of various accidents;
225
Schafer H.-B. Op. cit. P. 571.
Agarkov M.M. Obligations from causing harm: (The current law and the tasks of the Civil Code of the USSR)
// Agarkov M.M. Selected works on civil law. T. 2. S. 460.
227
Kantorovich Ya.A. Basic ideas of civil law. M., 2009. S. 173 ff.
228
Arkhipov D.A. Legal criterion for the distribution of contractual risks in civil law: Abstract of the thesis. dis. ...
cand. legal Sciences. M., 2011. S. 11.
229
Wed Art. 211 of the Civil Code of the Russian Federation (1994).
226
32
this principle also encourages participants in the turnover to take all necessary, objectively possible
measures to fulfill their obligations230.
When choosing the second principle (principle of causing/risk), the excessive costs associated
with any activity turns out to be a significant disincentive factor. They significantly hamper economic
initiative and economic activity231.
Therefore, the second principle is recognized as unsuitable for implementation in tort law as a
general principle. As a result, as such a general principle of tort law, all modern legal orders choose
the good old first principle (the principle of guilt), known since ancient times. It was dominant for
centuries at different stages of the development of European civilization and remained the main one
after the industrial revolution.
At the same time, O.S. Ioffe emphasized the decisive importance for civil law of such a form
of guilt as negligence: civil offenses, as a rule, are committed not by intent, but by negligence, and
most often negligence in civil offenses is expressed in the form of negligence232.
This is exactly how Bilbo acted, indirectly alluding to his connection with the inhabitants of
Lake-town.
Reflection of the subjective side in the sources. At the same time, the opposite principle, the
principle of causing, dominated among the barbarian peoples for a long time.
At the same time, the institute of wergeld, characteristic of Middle-earth, was practiced
precisely in the barbaric period of the development of European peoples. It is therefore difficult to
extrapolate one principle or another (at least as a hypothetical general rule) to the tort law of the free
peoples of Middle-earth.
At the same time, it seems no coincidence that Bard, making demands on Thorin, draws
attention to the subjective side of causing harm. The archer mentions the absence of premeditation
(intention) in causing harm, but does not consider their absence to be a circumstance excluding
liability.
By the way, in the two examples mentioned above (the possible bruises of Gimli when passing
through Lorien blindfolded and the bruise of Meriadoc when Elfhelm stumbled on him ),
compensation for harm was also discussed in the absence of intent, but with signs of negligence .
The sources also show that the subjective side of violations was taken into account in Middleearth when determining the conditions and measures of responsibility. Unfortunately, in relation to
torts, such considerations are not reflected in the sources. At the same time, in the available
documents, one can find arguments about guilt and about the grounds for exemption from liability in
relation to encroachments on one's own life (which was recognized by the Eldar as unacceptable) and
to violation of contractual obligations.
The myth of the dispute between the Valar regarding the permission of King Finwe to remarry
after the soul of his wife Miriel left the body has already been mentioned above. Commentaries on
the Valar decision on this point indicate that the Valar Mandos "judges right and wrong, innocence
and guilt (in all degrees and mixtures) in the errors and atrocities that happen in Arda"233. There is
also an explanation of this commentary with examples (regarding guilt or innocence "in the matter of
death"), from which it follows that the Eldar distinguished indirect intent and considered it a form of
guilt234.
The two fragments cited show that in Middle-earth innocence was opposed to guilt, which, in
turn, could take different forms (“degrees and mixtures”).
In addition, the sources recorded a plot with the giving of the order by the king of Doriath
Thingol to the captain Mablung and his subsequent failure to fulfill it. Mablung was ready to resign
due to a breach of duty, but Queen Melian formulated the following grounds for exemption from
liability for non-performance of an obligation: firstly, he "did everything he could, and none of the
230
Ioffe O.S. Responsibility under Soviet civil law. S. 221.
Asknazy S.I. Decree. op. pp. 718–719.
232
Ioffe O.S. Responsibility under Soviet civil law. S. 336.
233
LCE Laws A 235. Translation by Yu.V. Monday. In the light of the origin of the word "delict" from the verb "to
err", the mention in this context of errors, guilt in them and judgment on their occasion does not seem to be accidental.
234
LCE Laws A 235.
231
33
royal servants could have done better"235; secondly, he “by an unfortunate accident faced <...> with a
force that cannot be mastered <...> no one living now in Middle-earth”236. Summarizing what his wife
had said, King Thingol stated that everything possible was done, and the proper result was not
achieved through no fault of the performer and the “trouble” caused by non-performance was not on
his conscience237.
Strict responsibility. At the same time, the choice of the first principle (the principle of guilt)
in a number of cases significantly violates the interests of the victims and, beyond what is necessary,
weakens the incentives for the potential tortfeasor to take possible measures aimed at preventing the
infliction of harm. We are talking about activities associated with increased danger to others.
With regard to the harm caused by a source of increased danger, there has been a long discussion
in science about what constitutes such a source. O.A. Krasavchikov divided the concepts available in
the doctrine into four groups: theories of activity (M.M. Agarkov, B.S. Antimonov, V.G. Verdnikov,
O.S. Ioffe, V.I. Serebrovsky, etc.), theories of the properties of things and forces of nature (E.A.
Fleishits), the theory of moving things (L.A. Maidanik, N.Yu. Sergeeva, A.A. Sobchak, K.K.
Yaichkov) and the theory of objects of the material world (O.A. Krasavchikov )238.
At the same time, the civilist emphasized that such objects of the material world are sources of
increased danger due to special specific quantitative and qualitative conditions, due to which their
possession (use, creation, storage, transportation, etc.) under certain conditions of time and space is
associated with increased danger (an objective possibility of diminishing personal or material
benefits) for others239.
The listed operations with these items stand out from others in science and practice due to the
fact that in the course of such activities, due to its nature, the risk of its flow getting out of control,
the occurrence of an accident and causing harm is significantly increased.
As noted by O.S. Ioffe, the principle of guilt is not an end in itself, but serves as a means of
protecting the rights and legitimate interests of participants in the turnover. Therefore, if in certain
respects the application of this principle does not achieve the specified goal, it must be derogated
from by establishing liability for innocent, accidental harm240.
As soon as the subject performs the activity described above, it is fair to argue that this subject
assumes the risk of causing harm by virtue of the very fact of its implementation, regardless of the
subject's fault in the occurrence of a particular incident. In this case, it is no longer easier for the
owner of the property to take care of its protection from the possible harmful effects of third parties.
On the contrary, an entity carrying out a specific potentially hazardous activity can and must take into
account all its features. He is obliged to make efforts known to him as a professional in a dangerous
business to prevent an incident and harm to third parties. The obligation to compensate for harm
caused during the implementation of activities that are associated with increased danger to others is
called strict liability and is assigned to the owner of the source of increased danger, regardless of the
presence or absence of his fault.
To justify the satisfaction of the Bard's claim for damages at the expense of the property mass
of Erebor controlled by Thorin, one could put forward the following hypothesis. Going to rob Smaug,
the dwarves intended to carry out activities that are obviously associated with increased danger - both
for themselves and for those around them. No wonder Thorin, describing the risks of a campaign to
Erebor, said: “Even before dawn we will go on a campaign - a campaign from which some of us, and
235
NCH XIV [4] 212. Translated by S.B. Likhacheva. Compare: “with the degree of care and diligence that was
required of him by the nature of the obligation and the conditions of turnover, he (the person. - S.T. ) took all measures
for the proper fulfillment of the obligation” (paragraph 2, clause 1, article 401 Civil Code of the Russian Federation).
236
NCH XIV [4] 212. Translated by S.B. Likhacheva. Compare: “proper execution turned out to be impossible due
to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions” (clause 3 of article
401 of the Civil Code of the Russian Federation).
237
NCH XIV [4] 212.
238
Krasavchikov O.A. Compensation for harm caused by a source of increased danger // Krasavchikov O.A.
Categories of science of civil law: Selected works: In 2 vols. T. 2. M., 2005. S. 293–316.
239
There. S. 317.
240
Ioffe O.S. Responsibility under Soviet civil law. pp. 221–222.
34
maybe none of us (with the exception, of course, of our friend and mentor - I mean the wise wizard
Gandalf) will never return241.
The dwarves could not help but understand that an attempt to take the treasure from the dragon
against his will (secretly or openly) could cause an aggressive reaction from Smaug. Neither the
Dwarves, nor any of the free peoples of Middle-earth had the strength and means to resist the dragon's
attack. Therefore, it is logical to recognize an attempt to rob him as an activity associated with
increased danger to others. By virtue of such a qualification, it would seem logical to lay the duty on
the gnomes to compensate for the damage caused to the property (dwellings) of the citizens of
Esgaroth as a result of the provocation of the quite predictable aggression of a flying fire-breathing
serpent.
Meanwhile, on the one hand, such reasoning is appropriate only if a specific legal order
specifically recognizes the institution of harm caused by a source of increased danger. This institution
itself arises only as a result of significant technological progress, which obviously did not take place
in Middle-earth.
On the other hand, when harm is caused by a dragon, it is difficult both to determine what (what
object of the material world) is a source of increased danger, and to prove that the gnomes own such
a source, although they clearly carry out activities associated with increased danger.
Joint responsibility. Civil law is aware of the norm on the joint and several liability of persons
who jointly caused harm242. According to E.A. Fleischitz, such an approach in the best way ensures
the interests of the victim: he could not in these cases divide his claim for compensation and present
it in the appropriate amount to each of the tortfeasors. At the same time, such an order of responsibility
also excludes attempts by one of the joint tortfeasors to shift responsibility to the victim onto
another243.
Within the framework of the economic analysis of law, the joint and several liability of several
persons, even independently of each other, who caused harm due to negligence, is defended. Such a
solution is proclaimed to be appropriate in terms of distributing incentives for due diligence in the
prevention of harm244.
E.A. Fleischitz noted that from the point of view of criminal law, complicity involves the
intentional activity of criminals, and when careless actions are a crime, there is no complicity: each
of the persons who committed the crime through negligence bears criminal liability regardless of
other persons, no matter how his crime may be objectively connected. with the crimes of others.
Meanwhile, harm can be a consequence of the "totality" of these crimes, which may be in a causal
relationship with a certain harm as their inseparable result.
From the point of view of civil law, the question of the presence or absence of joint infliction of
harm is a question of a causal relationship between the illegal harmful actions of several persons and
the harm that followed these actions. If the unlawful actions of several persons in the aggregate
causally caused harm as an inseparable whole, then there is a joint infliction of harm. If there is no
causal relationship between the actions of several persons and harm as an inseparable result of these
actions, there is no place for joint and several liability for harm245.
With reference to the said opinion of E.Ya. Laasik later noted that a solidary obligation can arise
only if there are general conditions for the occurrence of a tort obligation in relation to each person
who caused harm. Therefore, firstly, in order to recognize the actions of several persons as joint, they
do not need to be performed simultaneously, the main thing is that they cause an inseparable result harm; secondly, the persons who jointly caused harm may be jointly and severally liable for it if there
are different other conditions for the occurrence of the obligation (guilty infliction and infliction by a
source of increased danger); thirdly, in a joint and several obligation arising as a result of the joint
infliction of harm, the form of guilt of each person who caused the harm does not matter; in addition,
241
H I 21. Translation by S.V. Stepanova, M.V. Trofimovich (published under the pseudonym M. Kamenkovich).
Wed Art. 1080 of the Civil Code of the Russian Federation (1996).
243
Fleishits E.A. Liabilities from infliction of harm and unjust enrichment. M., 1951. S. 155.
244
Kornhauser L. A ., Revesz R. L. op. cit. P. 628.
245
Fleishitz E A. Decree. op. S. 155.
242
35
fourthly, the obligated subjects of a joint tortious obligation can be subjects of a different nature both individuals and legal entities in any combination246.
With this approach, the value of the intent to cause joint harm for the purposes of establishing
the grounds for the joint and several liability of the tortfeasors is leveled.
Using this approach, it would be possible to justify joint and several liability to the inhabitants
of Esgaroth of Smaug as a direct tortfeasor and Bilbo (together with Thorin and Co. responsible for
him) as a careless accomplice (instigator or accomplice).
It cannot, however, be ruled out that the above authors had in mind precisely joint infliction and
did not consider such forms of complicity as incitement and aiding.
At the same time, the opposite opinion is expressed in modern literature, based on the traditions
of a number of continental legal orders. Thus, in the commentary to Art. VI.–4:102 The "joint
infliction" of the DCFR points to the need for intent and the lack of recklessness in instigation and
aiding247.
The specifics of such a type of civil offense as joint infliction of harm, which is the basis of
joint tort liability, is studied in detail in the dissertation of A.K. Gubaeva. In particular, the joint
infliction of damage is considered not as the sum of separate offenses, but as a single offense; each
of its constituent elements does not have independent significance for imposing joint and several
liability, the plurality of subjects of infliction determines the approach to studying the elements of an
offense. It is necessary to identify the content of the guilt of each of the subjects in relation not only
to their own behavior, but also to the behavior of all other subjects of the offense (the obligation to
predict a common harmful result or its prediction), to know the causal relationship in terms of the
legal significance of the actions of each of the subjects for the onset of common harm and establishing
the very nature of the harm, characterized by inseparability248.
Among the Russian authors who have recently spoken out on this issue, the need to take into
account the subjective sign - the common intention of the co-inflictors of harm - adheres, in particular,
to A.P. Sergeev249.
The “ responseat” principle superior ". The law of different peoples has long known the rule
by virtue of which the employer is liable for harm caused by his servant or employee. According to
O.U. Holmes, this norm came from the fiction of identifying slaves, servants and family members
subject to the householder and their actions with the personality and actions of the master250. In
English law, this principle is called “respondeat superior” (“let the owner answer”).
As noted by O.U. Holmes, the beginnings of the principle of "respondeat superior" can be found
in Roman law. However, it did not go beyond the recognition by the praetor's edict of the
responsibility of the owners of ships, hotels and inns to passengers and guests for the safety of
entrusted valuables (including due to the omissions of workers)251.
In Roman law, the responsibility of owners (employers) for the behavior of servants
(performers, employees) has not yet been established as a general rule252.
At the same time, in different legal orders, the features of the application of this principle may
differ. Thus, it was previously noted that in some legal systems, when harm is caused by an employee,
the employer is involved regardless of his own fault, while in others - if the employer did not exercise
246
Laasik E.Ya. Soviet Civil Law: Special Part / Ed. EM. Tõnismäe. Tallinn, 1980. S. 414.
BarChr. v. Op. cit. P. 773, 775 (PEL / von Bar, Liab. Dam., Chapter 4, Article 4:102, Comments, 9).
248
Gubaeva A.K. Civil liability for harm caused by a crime: Abstract of the thesis. dis. ... cand. legal Sciences. L.,
1985. S. 19–20.
249
Commentary on the Civil Code of the Russian Federation: Part Two (item-by-article) / Ed. A.P. Sergeeva, Yu.K.
Tolstoy. M ., 2006. S. 994.
250
Holmes O. W. Agency // Holmes O. W. Collected Legal papers. N. Y ., 1952. P. 56–78.
251
This rule developed within the framework of the doctrine of the receptum nautarum cauponum stabuloriorum.
For more details, see: Passek E.V. The concept of force majeure (vis major) in civil law // Passek E.V. Non-property
interest and irresistible force in civil law. M ., 1999. S. 55–57; Zimmermann R. Innkeepers' Liability. P. 892–895.
252
Holmes O. W. op. cit. P. 57.
247
36
proper supervision over the activities of the employee or on the basis of culpa in eligendo,253 i.e. when
the employee chosen by the employer was obviously not fit to perform the work assigned to him254.
The rationale for the rule on the responsibility of the employer for the employee (executor) is,
according to E.A. Fleishitz, the duty to select personnel, taking into account the tasks that will be
assigned to them, taking into account the need for certain preparation for this type of activity, business
experience, etc. Employers must also exercise control over the fulfillment by employees of the duties
assigned to them. Laying responsibility on the employer for the harm caused by his employees in the
sphere of their labor activity becomes an incentive for an attentive, vigilant attitude both to the
selection of personnel and to supervision and control over their activities255.
At the same time, O.S. Ioffe did not consider the explanation of the responsibility of the
employer for the actions of the performer as the principle of " culpa in eligendo " convincing. The
civilist believed that in the light of this construction, the responsibility of the employer already acts
as a responsibility not for his own (cf. O. W. Holmes' hypothesis about the fiction of identification),
but for other people's actions, and that this construction is devoid of practical meaning256.
At the same time, the literature notes that the employer is responsible for his activities, which
is expressed (manifested) in the actions of the employee, only insofar as they are of an official nature.
It is necessary that the functions and activities of the employer are manifested in the actions of the
employee, the fulfillment of which constitutes the obligation of the employee. The range of activities
that relate to the performance of these duties is determined by the nature of the work performed by
this person. If the damage is caused by the employee, although during the performance of his duties,
but by an action that is not official, the employer is not responsible for it257.
A.P. Sergeev emphasizes that the rule on the joint liability of co-causes does not apply to the
liability of persons held liable by virtue of a special indication of the law for harm caused by another
delinquent258.
With regard to the relationship between the gnomes and Bilbo, it is necessary to establish both
premises, by virtue of which the employer is responsible for the worker's activities.
Rule on the responsibility of the employer for the employee. The big premise must be that
there is a rule in Middle-earth whereby the employer would be responsible for the worker (servant).
On the one hand, the sources give some grounds for the conclusion that free peoples recognize
such a norm as an element of the principle of patronage of the employer to the servant.
So, just before the capture of Gollum by the warriors of Faramir at the Forbidden Lake, Frodo
refuses the temptation to provoke the murder of Smeagol, believing that "the servant always has a
right to the master, even if he serves only out of fear.259"
After the capture - in the episode of Faramir's trial - to the question of the latter: "So, do you
accept this creature - Smeagol - under your protection?" Frodo replies: "Yes, I take Smeagol under
my protection260. "
On the other hand, the sources give an example of the acceptance by the owner of the hotel of
responsibility towards the guests. (This institution, as noted above, has historically been one of the
origins of the rule on the responsibility of the master for the actions of the servant). After the night of
September 29-30, 3018 T.A. after the attack on the Prancing Pony Inn, all the stalls in it were open,
and all the ponies and horses were gone, the owner of the hotel, Barliman Butterbur, reimbursed
253
For more details see: Zhirnov R.A. Doctrine of the culpa in eligendo in Russian private law: the risk of choosing
a person involved in the performance of an obligation // Actual problems of civil law: Sat. works of graduates of Ros.
Schools of Private Law 2009: Vol. 14 / Comp. and resp. ed. A. B. His moat. M ., 2012. S. 226 and sl .
254
Neuner R. Respondeat Superior in the Light of Comparative Law // Louisiana LR 1941. Vol. 4. P. 2–3.
255
Fleischitz E. A. Decree. op. C. 112.
256
Ioffe O.S. Responsibility under Soviet civil law. pp. 266–267.
257
Smirnov V.T., Sobchak A.A. Decree. op. S. 54.
258
Commentary on the Civil Code of the Russian Federation: Part Two (item-by-article) / Ed. A.P. Sergeeva, Yu.K.
Tolstoy. S. 995.
259
TT IV 6 [3] 898. Translated by N.V. Grigorieva, V.I. Grushetsky. (S.A. In Lkovsky the phrase " the servant has
a claims on the master " is translated as "the master is always responsible for the servant", which would better confirm
the thesis about the recognition by the right of the free peoples of Middle-earth of the responsibility of the employer
(master) for the performer (servant), but, unfortunately, would not fully correspond to the letter of the source.)
260
TT IV 6 [4] 903. Translated by N.V. Grigorieva, V.I. Grushetsky.
37
Merry for the cost of the lost ponies - he paid for the purchase of a pony from Bill Fernie for 12 silver
coins and in addition offered Merry 18 coins261.
It is interesting, by the way, that on the same night, the horses of other guests (“southerners”)
also disappeared from the same hotel. Meanwhile, the day before they were seen in the company of
a person with a dubious reputation, who disappeared after the incident and was therefore suspected
of embezzlement. Against the claims of these guests for compensation, the tavern keeper essentially
raised an objection (exception) about gross negligence: “If you had not brought this horse thief to my
house<...>, nothing would have happened. Now don't yell at me. Pay for the loss yourself. Go and
ask Fernie where your beautiful friend is!”262
In this case, the responsibility of the innkeeper to the hobbits was negotiable. At the same time,
as noted by S.I. Asknaziy, some issues related to the infliction of non- contractual harm receive legal
regulation on the same basis as in the case of infliction of contractual harm263. O.S. Ioffe also
emphasized that contractual and extra-contractual (tort) liability have a number of common features
that are of fundamental scientific, theoretical and practical importance, which include principles,
conditions (with certain reservations) and the scope of liability264.
Thus, the sources contain indirect signs of both the principle of the patronage of the master to
the servant, and the institution of the owner's responsibility for harm caused to the counterparty by
the actions of employees. Therefore, it can be assumed that the law of the free peoples of Middleearth at the time in question could be aware of the principle of tort liability of the employer for the
actions of the executor (employee).
Bilbo and Thorin's contract. The lesser premise, on the basis of which it would be justified to
hold Thorin responsible for Bilbo's actions, is that there is a relationship of personal employment
between them. This circumstance requires independent verification.
The relationship between Bilbo and the dwarves, led by Thorin, was based on an agreement.
The contract was made by the dwarfs sending an offer - a letter left by Bilbo Baggins on the
mantelpiece, and accepting this offer by conclusive action - the hobbit doing what was said in the
letter. The text of the letter seems justified to be quoted in full:
"Thorin and Co. send their greetings to Burglar Bilbo! For hospitality - heartfelt gratitude, the
offer of professional assistance is accepted with gratitude. Conditions - payment upon delivery of the
desired amount up to, but not exceeding, the fourteenth part of the total income (if such happens).
Reimbursement of travel expenses is in any case guaranteed, funeral expenses are borne by the Co.
or its representatives (unless arrangements have been made by the deceased in advance).
Not considering it possible to disturb your precious rest, we go ahead in order to make the
necessary preparations. We will expect your venerable person at the Green Dragon Tavern, Riverside,
at 11 am sharp. Hoping for your punctuality ,
we have the honor to be
deeply devoted
Thorin & Co. "265.
As D.Ch. Kane, the phrase "offer of professional assistance is accepted" is misleading, because
the document contains a new essential condition - about remuneration, and therefore is not an
acceptance, but a new offer. It also contains an indication of the method of its acceptance - joining
the "Company" "in the Green Dragon tavern, Riverside, at exactly 11 am"266. Arriving there at the
indicated time, Bilbo accepted the offer by implicit actions, which led to the recognition of the
contract as concluded.
For the purposes of this publication, it seems important to determine to which type of contract
Bilbo's contract should be attributed and whether this contract implies the emergence of personal
employment relations as a prerequisite for the employer's tort liability for the performer's actions.
Other aspects of this contract (legality in the light of its subject, the dynamics of the obligations
261
FR I 11 [3] 234.
FR I 11 [3] 235. Translated by A.A. Gruzberg.
263
Asknazy S.I. Decree. op. WITH. 736–737.
264
Ioffe O.S. Responsibility under Soviet civil law. pp. 190–191.
265
H II [1] 35. Translated by N.L. Rakhmanova.
266
Kane DC Law and Arda // Tolkien Studies: An Annual Scholarly Review. 2012. Vol. IX. P. 40.
262
38
arising from it, the compliance of Bilbo's actions with the terms of the contract in its execution, etc.)
undoubtedly deserve the closest study, but are beyond the scope of this publication.
From the point of view of modern taxonomy of contracts, three options seem to be the most
suitable for the primary qualification of a contract: a work contract, a contract for the provision of
services for a fee, and an agreement on joint activities.
Agreement on joint activity. In favor of qualifying Bilbo's contract as an agreement on joint
activities (an agreement of (simple) partnership) speaks, first of all, the principle of determining
remuneration - 1/14 of the total income, i.e. equal part with other participants in the campaign to
Erebor.
The Dwarves (Thorin included) are known to have numbered thirteen, and Gandalf alluded
unambiguously to the unfortunate number. When the dwarves questioned Bilbo's ability to act as a
burglar, the sorcerer declared: "Let someone try to say that I made a mistake, chose the wrong one
and got in the wrong place, and you can go thirteen and get everything that is due for this number
.267" Telling about himself to Smaug, Bilbo said that he was "chosen for a lucky number268. " Thus,
the participants in the campaign, together with Bilbo (thanks to his accession), became instead of
thirteen fourteen, and the hobbit was due an equal share with others in the profits from this enterprise.
The principle of equal distribution of profits in Roman law and some modern foreign legal
orders is characteristic of a (simple) partnership agreement. So, Ulpian pointed out that if at the
conclusion of the partnership agreement the shares (participants of the partnership) were not
indicated, then it is recognized that these shares are equal269. A similar norm is reproduced in
Justinian's "Institutions"270 and thirteen and a half centuries later in a number of European
codifications271.
It can be assumed that the equalizing principle (as a dispositive norm) of the distribution of
profits between the participants of the partnership is due to the origin of this institution: as I.A.
According to Krovsky, the historical development of the partnership (societas) came from an
agreement between the brothers after the death of their father not to separate, but to continue to
manage the household together (consortium)272.
In the literature on pandect law, it was noted that some authors proposed to interpret the rule of
equal shares in the sense of their proportionality to the contributions of each of the comrades273. A
fragment from the work of Proculus ( 1st century AD) is known: “We are not in all cases participants
in equal shares, for example, if one proposes to contribute more labor, skill, connections, money to
the partnership.274” On the basis of this fragment, B. Windsheid concluded that it was quite fair to
recognize in the sources that the shares in the comradely profits were determined by the amount of
contributions275. This rule is enshrined in a number of codes in force on the continent276.
Nevertheless, the historically determined principle of equal distribution of profits between the
participants of the partnership has long been and remains known to the former and current legal
orders.
Therefore, the use of this principle in Bilbo's contract gives certain grounds for assuming his
qualification as a contract of (simple) commodity .
267
HI 23–24. Translation by N.L. Rakhmanova.
H XII [7] 258. Translated by N.L. Rakhmanova; a similar translation by V.A. Matorina.
269
D. 17. 2. 29 pr. Translation by I.S. Peretersky.
270
I. 3. 25. 1.
271
See, for example, § 722 I BGB (1896), par. 1 st. 533 Swiss OR (1912).
272
Pokrovsky I.A. History of Roman law. SPb., 1998. S. 429. Meanwhile, S.A. Muromtsev believed that the history
of the institution of partnership should be considered lost (see: Muromtsev S.A. Civil law of Ancient Rome. M., 2003. P.
594).
273
See, for example: Windsheyd B. On obligations under Roman law. SPb., 1875. S. 379; Dernburg G. Decree. op.
P. 330. These authors recognized such an interpretation as not corresponding to the literal meaning of the text of the
sources.
274
D. 17. 2. 80. Translation by I.S. Peretersky.
275
Windshade B. Decree. op. S. 379.
276
See, for example, Art. 1853 Code Napoleon (1804), § 1193 ABGB (1811), Art. 1048 of the Civil Code of the
Russian Federation (1996).
268
39
The most ancient example in the sources of an agreement on joint activities can be recognized
as the “feanoring oath”277, taken after the abduction of the Silmarils (1495 Trees): “And Feanor swore
a terrible oath. His seven sons rushed to him and, standing side by side, made the same vow; and the
blades of their naked swords glittered bloodily in the flickering of the torches278. The text of the oath
itself deserves to be quoted verbatim:
"Whether he be an enemy or a friend, stained or clean,
The offspring of Morgoth or the Bright Wall,
Elda or Maya or Follower,
A man not yet born in Middle-earth,
Neither law, nor love, nor the union of swords,
Fear or danger or fate itself
They will not protect from Feanor or his kindred,
Whoever hid or kept or took in the palm of your hand,
Finding, saving or throwing away
Silmaril. So we all swear
We will bring death to him before the end of days,
Woe to the very end of the world. You hear our word
Eru Allfather! Into the everlasting
Darkness Throw us, if we do not do the deeds.
On the holy summit, hear and testify
And remember our oath, Manwe and Varda!”279
Contract for the provision of services. At the same time, there are fragments in the sources that
cast doubt on the qualification of the agreement between the hobbit and the dwarves as an agreement
on joint activities. Thus, Bilbo declared to Thorin, who had barely climbed out of the barrel after
escaping from the wood elves and was dissatisfied with the lack of comfort during transportation: “If
you want to eat and intend to continue your stupid idea (yes, yes, yours, not mine), then pat your
hands, rub your feet and try to help me get the rest out while there's still time!"280
It can be seen that Bilbo treated the campaign not as a "joint action" (a sign of a simple
partnership)281, but as a foreign matter for himself.
At the same time, there are many indications in the sources that both the dwarves and Bilbo
considered mutual relations as relations of hire. So, discussing with Gandalf the expediency of
attracting Bilbo, Thorin says: “ I can’t see what any hobbit, good or bad, can do to work out at least
his daily ration ,” and a little later: “ I will offer him an honest reward for everything, that he can give
back to us282. "
Already in Erebor, Thorin says: “The time has come, I repeat, for him (Bilbo. - S.T. ) to render
us a service, for which he was included in our Company, and earn the promised share283. ”
A little later, it is indicated that the dwarves “ were determined to pay Bilbo generously for his
services. Since they took him on purpose so that he would do difficult work for them, they did not
object to him doing it, if he himself did not mind284.
Finally, Bilbo himself saw employment relations in his activities for the benefit of the dwarves:
“I was hired not to kill dragons - this is the business of warriors, but to steal treasures285. ”
The condition that Bilbo be paid 1/14 of the total income can be qualified as a condition about
the "fee of success" .
Thus, the lesser premise of applying the rule "responseat superior" can be recognized as
installed.
277
For more details see: Sokolova N.A., Afanas'eva L.P., Lebedeva E.Yu. Oath feanorings: history and meaning of
motive // Palantir. 2002. No. 29. P. 4–15.
278
QS 9 [2] 88–89. Translation by N.A. Chertkova.
279
AA 5 §134 112. Translation by J.S. Rempen.
280
H X [2] 225. Translated by N.L. Rakhmanova.
281
Wed paragraph 1 of Art. 1041 of the Civil Code of the Russian Federation (1996).
282
QE 433. Translated by V.V. Sviridov.
283
H XII [1] 246. Translated by N.L. Rakhmanova.
284
H XII [1] 247. Translated by N.L. Rakhmanova.
285
H XII [6] 255. Translated by N.L. Rakhmanova.
40
Therefore, Thorin and Co. should be held responsible for Bilbo's actions, which indirectly led
to the destruction of the dwellings of the citizens of Esgaroth, and the latter's initial claims for
compensation for the harm caused by the property mass stored in Erebor should be recognized as
justified.
Meanwhile, after some time, which Bard gave Thorin to think, the archer replaced the above
initial claims with others : not to be declared our enemy. Let him give one twelfth of the treasure to
Bard, as Dragon Slayer and Girion's heir. From this share, Bard himself will allocate as much as
necessary to help the inhabitants of Esgaroth. But if Thorin wants to enjoy friendship and respect in
the surrounding lands, as was the case with his ancestors, let him add some money from himself to
the Lake-dwellers286.
As J.D. Reitliff, the demand of Bard and his comrades for the payment of 1/12 of the treasure is
traced in all versions of this episode, but nowhere is it indicated how this figure is calculated to
determine the share of Girion's wealth in the treasure of Thror287.
It can be seen that of the four original claims, only the first (a reward for killing Smaug) and
the second (the return of valuables that fell into Erebor from Dale when it was devastated by the
dragon) remained. Bard refused the tort claim, or rather it was replaced by a wish that does not claim
to be of a legal nature. It is possible that Thorin's objection turned out to be decisive: “This is not his
(Smaug. - S.T. ) treasure to pay for his crimes288. ”
286
H XV [3] 308. Translated by N.L. Rakhmanova.
Rateliff JD Op. cit. P. 656.
288
H XV [3] 307. Translated by N.L. Rakhmanova.
287
The following title and source abbreviations are used in footnotes in this publication :
AA
A&E
Ain.
app.
BLT II
FR
H
L
LCE
LV
NCH
Pr.
OK
Annals of Aman // Tolkien JRR Morgoth 's
Ring: The Later Silmarillion. Part One:
The Legends of Aman / Ed. by C. Tolkien.
London, 2002. [The History of Middleearth. Vol. 10]. P. 45–140.
Aldarion and Erendis: The Mariner 's Wife
// Tolkien JRR Unfinished Tales of
Númenor and Middle-Earth / Ed. by C.
Tolkien. London, 1980. P. 223–280.
Annals of Haman *
Aldarion and Erendis: The Sailor's Wife //
Tolkien J.R.R. Unfinished Tales of
Numenor and Middle-earth / Ed. K.R.
Tolkien; per. under total ed. A. Chrome.
B.m., 2002. pp. 173–217.
Ainulindalë: The Music of the Ainur // Tol- Ainulindalë: Song of the Ainur // Tolkien
kien JRR The Silmarillion / Ed. by C. Tol- J.R.R. Silmarillion **
kien. London, 1999. P. 3–12.
Appendix
Application
Tolkien JRR Book of Lost Tales. Part Two Tolkien J.R.R. History of the Middle Earth.
/ Ed. by C. Tolkien. London, 2002. [The Vol. 2: The Book of Lost Tales. Part 2 / Ed.
History of Middle-earth. Vol. 2]
K.R. Tolkien. B. m., 2002.
Tolkien JRR The Fellowship of the Ring: Tolkien J.R.R. Commonwealth of the
Being the First Part of The Lord of the Ring**
Rings. London, 2007.
Tolkien JRR The Hobbit, or There and Tolkien J.R.R. The Hobbit, or There and
Back Again. London, 2006.
Back Again**
The Letters of JRR Tolkien / Ed. by H. Tolkien J.R.R. Letters / Ed. H. Carpenter
Carpenter, with assist. of C. Tolkien. Lon- with assistance. K. Tolkien; per. from
don, 2006.
English. S.B. Likhacheva. M., 2004.
Laws and Customs among the Eldar // Tol- Laws and Customs of the Eldar*
kien JRR Morgoth 's Ring: The Later Silmarillion. Part One: The Legends of Aman
/ Ed. by C. Tolkien. London, 2002. [The
History of Middle-earth. Vol. 10]. P. 207–
253.
Later versions of the Story of Finwë and Later versions of Finwe and Miriel's story*
Míriel // Tolkien JRR Morgoth 's Ring: The
Later Silmarillion. Part One: The Legends
of Aman / Ed. by C. Tolkien. London,
2002. [The History of Middle-earth. Vol.
10]. P. 254–271.
Tolkien JRR Narn i Chîn Húrin: The Tale Tolkien J.R.R. Children of Hurin: Narn and
of the Children of Húrin / Ed. by C. Tol- Chin Hurin: A Tale of the Children of
kien. London, 2008.
Hurin / Ed. K. Tolkien; per. from English.
S.B. Likhacheva. M., 2013.
Prologue
Prologue
Tolkien JRR Ósanwe-kenta: Enquiry into Osanwe-kenta: A Study on Thought
the Communication of Thought: (résumé Transmission *
of Pengolodh ' s discussion) / Edited with
introduction, glossary, and additional
notes by Carl F. Hostetter // Vinyar
Tengwar. 1998 (July). no. 39. P. 21–34.
* Hereinafter, the sign "*" marks sources whose translations into Russian have not been published in print.
** Hereinafter, the signs "**" mark sources that were published in print at different times in several translations
into Russian, made by different authors (groups of authors).
Gromov Sergei, Associate Professor of the Department of Civil Law of St. Petersburg State University, Ph.D. in Law, https://law.spbu.ru/aboutfaculty/teachers/gromov/
42
Q&E
QE
QS
RK
TT
Val.
Quendi and Eldar // Tolkien JRR The War
of the Jewels: The Later Silmarillion. Part
Two: The Legends of Beleriand / Ed. by C.
Tolkien. London, 2002. [The History of
Middle-earth. Vol. eleven]. P. 357–424.
The Quest of Erebor // Tolkien JRR Unfinished Tales of Númenor and Middle-Earth
/ Ed. by C. Tolkien. London, 1980, pp.
415–435.
Quenta Silmarillion: The History of the
Silmarils // Tolkien JRR The Silmarillion /
Ed. by C. Tolkien. London, 1999, pp. 25–
306.
Tolkien JRR The Return of the King: Being
the Third Part of the The Lord of the Rings.
London, 2007.
Tolkien JRR The Two Towers: Being the
Second Part of The Lord of the Rings. London, 2007.
Valaquenta: Account of the Valar and Maiar according to the lore of the Eldar // Tolkien JRR The Silmarillion / Ed. by C. Tolkien. London, 1999, pp. 13–24.
Quendi And eldar*
Hike to Erebor // Tolkien J.R.R. Unfinished
Tales of Numenor and Middle-earth / Ed.
K.R. Tolkien; per. under total ed. A.
Chrome. B.m., 2002. C. 321–336.
Quenta Silmarillion: The Tale of the
Silmarils // Tolkien J.R.R. The
Silmarillion**
Tolkien J.R.R. Return of the King**
Tolkien J.R.R. Two towers**
Valakventa: The Tale of the Valar and the
Maiar, as the Eldar Knowledge Books tell
of them // Tolkien J.R.R. The
Silmarillion**