The Taming of a Duty–The Tort Liability of Landlords

For one inclined to reform the first-year curriculum in law schools the most simple and comprehensive solution is to expand the treatment of the law on landlord and tenant, and only then break up into the traditional basic subjects to deal with matters not previously covered. Thereby one could embrace all the traditional first-year subjects except Criminal Law, and a good deal more as well.

The other side of this conceit is that one who approaches the modem law of landlord and tenant from traditional property perspectives encounters particular problems that arise from the margins, or along the frontal thrust, of contract and tort law, and so is thrown into their theoretical or philosophical essences, and into emerging forces of social policies, and even economics. Unfortunately, many recent cases dealing with new developments in this field are rife with economic assumptions and conclusions, unsupported by any relevant data. In this maelstrom of ideas and problems, one even encounters the boundary lines between contract and tort law, and must learn, if he does not know it already, that the line is at least fuzzy, if not arbitrary. So one who deals with the law of landlord and tenant must consider not only how contract and tort rules directly affect property rules, but also how the effect of contract law on tort law, or vice versa, indirectly affects property law. This, however, is not· an entirely new experience, at least for property lawyers. Something of the same, perhaps to a lesser degree, is encountered in other areas of traditional property law, the most obvious example, of course, being the law of bailments, nuisance, and covenants running with the land.