Scots law and the 'reasonable and prudent man' test?
Posted by Keith rennie on November 29, 2004
In Reply to: 'reasonable and prudent man' test posted by Ward on November 25, 2004
: : : There is in US jurisprudence a 'reasonable and prudent man' test which is used to determine if an individual should have forseen the consequences of an action. Is this a US concept, or is it taken from English common law or prior law in the UK?
: : it is derived from English 'common law'. there are variations, bu the most famous is "the man on the Clapham omnibus" - a mythical person who peceives the relevent facts and has an opinion.
: : the 'reasonable and prudent man' is a variation and the requirement for prudence is probably a reference to the reasonable investor/business person. it sounds like a term from 'due diligence' in the performance of a duty.
: : 'reasonableness' is an amazingly big legal topic and you can find people who have devoted their careers to defining it.
: : I once had a case due to be heard in the House of Lords on the question of the meaning of the word 'likely'. Before trial, a piece of legislation was passed that made defining the meaning unnecessary, so funding was pulled.
: : Shame that.
: : Lewis
: Lewis: Thanks and a happy holiday season to you and yours. I've spent many happy times in the Stratford and Coventry area around Christmas.
Just a modest suggestion, as I fear I may be in danger of speaking latin before the clerics. But I do remember clearly my grandfather, a worthy late C19/early C20 Glasgow solicitor, emphasizing to me that the reasonable man doctine was much more prominent and developed in Scots than in English law. It seems to have a longer and perhaps more continuously traceable pedigree than the famous Clapham omnibus even if it was horse-drawn. Given the strong influence on American institutiosn of late C18 scots and (linked) continental thought and institutions, including powerful transmission of ideas through the "common sense" philosophers, I wonder whether English common law is the only or even the most appropriate place to seach for a pedigree of this concept in US law?