Roman Dutch law

In Sri Lanka English law and R.D.L are part of the common law. English law is an
essential part of S.L laws. This law applicable to the all jurisdiction in S.L
R.D.L is a reasudary law in Sri Lanka. R.D.L not concludes the any statutory
provision.
According to Sultan vs. Pries case
MC Donald accepts English law is a common law but R.D.L there is not statutory
evidence as a judicial process. It is utilized the reasudary law in Sri Lanka.
English law directly import the common law but R.D.L is utilized the filling gaps of
indigenous law.
English judges attempt to restrict the roman Dutch law. Jayewardene C.J said that
all remains of the R.D.L should be cut down and grubbed up root and branch but
at the same time there were many judges who were interested in R.D.L principles.
Ex: - Jayewardene, de. Sampayo, Walter Pereira
Principles of roman Dutch law
Negligence
According to the samed vs. seguthamby case the A before setting
fire to his own land had taken precautions to prevent it from
spreading into his B land by clearing a strip of 30 feet. But
unexpectingly fire spread into the B land it caused heavy
damages.
So according to this case b asked compensation from A according to this
claim relating provision didnt include by S.L laws. But there have a provision
from R.D.L & E.L
In English law there is a strict liability provision remain. Its mean that
with knowledge or without knowledge dependent is liable
This provision was became a Ryland vs. Fletcher case
According to sameed vs. seguthamphy case each party have knowledge.
B want to get remedy in English law was very rigid.
But in R.D.L negligence is a part of offence. So B has the duty to prove the
negligence of A
So here English law and roman Dutch law both are meeting in Sri Lanka.
So dependent like to use R.D.L and B like to use English law so conflict arisen
here
R.D.L is not an absolute pure law because it became a statutory form of law
from Holland

So burden C.J facing to problem for this case. So he toke the positive
provision for this two cases and made a new principle.
He borrow the strict liability from English law and rule of law here
preserve. And also he borrows the negligence from R.D.L.
So he made a contribution negligence principal.
So B also responsible
Burden c.j judgment
He toke the English law and modify on the R.D.L. this is most suitable for Sri
Lankan trend.
He is answering the plaintiff question
Roman Dutch law was made an old and unclear provision. Also negligence
principle is unclear. Because it was became Holland. There wasnt introduced
the pure R.D.L.
So we cant amend and ignore this law. But we can modify this.
R.D.L could be modify only by a serious of unbroken and express
decision of the courts
Marriage
According to karanchihamy vs. angohamy
Where the validity of marriage contracted by a person after the death of his
wife with a woman with whom he had an adulterous affair while his first wife
was living in issue.
So son with first wife file the case.
So English law says its not a offence this is a morality. Its not punishable to
the English law. So property is also go to the 2 nd wife
According to R.D.L law its a offence and also against the conscience
So contradicted arisen here. So they didnt made new principle openly and
they ignore the English law and accept the roman Dutch law expressly.
According to karonchihamy vs. angohamy. His lordship declare that I think it
has been generally accepted that the common law of Ceylon is the roman
Dutch law as it prevailed in the Netherlands at the date of the capitulation.
Leasing
According to apuhamy vs. dolaswala tea and Rubber Company
A person had disputed the title of the defendant who had leased certain
properties to a company which in the meantime had made improvements for
the property.
So plaintiff ask the compensation according this improvements but
dependent refuse its.
According to English law principle plaintiff liable for property improvement
But according to roman Dutch law plaintiff prove the good faith than R.D.L
apply.
So here apply to R.D.L. here prove the reasonableness and subjective test

Bertram C.J was prepared to adopt the roman Dutch law principle of bona fide
possessors right to compensation for improvements he made to the
property.
According to the government agent central province vs. letchuman chetty
The right of the government agent to claim compensation for improvements
made to a property after its acquisition by him was in issue.
Same principle applies to appugamy vs. dolaswala.. Here also R.D.L
applies but problem is the situation arising for cant prove the good faith. We
can decide the proceeding of improvement for that property.
Bertram c.j declared in this case that we are, I think entitled to develop the
legal principle handed down to us in connection with new situation which
arise in our own civilization and that we should administer if equitably rather
than upon strictly rigorous lines.
Interpretation
Roman Dutch law also develop through the interpretation
According to tikiri appu vs. dinkirirala case.
A person had claimed his right in the form of servitude to use the neighbors
threshing floor to thresh paddy.
The court recognize that under the principle of R.D.L the right of pressing
grapes or threshing corn or pulse on another land is a rural servitude and
held that having regard to the fact that paddy is the principle plant
cultivated in Ceylon,
The corn as used (R.D.L) is quite wide enough to include such a cereal plant
as paddy.
In their effort to modify roman Dutch law in its application to the
modern conditions.
Remove the indigenous laws errors through the judiciary
Under the tesawlamai law our dog is bitten another person we should give
the compensation or give that dog
So this provision not suitable for our civilization.
So according to the Namachivayakam vs. Heenbanda case
The decision of the trail court to award compensation for the damaged
caused to the plaintiff who was bitten by the defendant dog while he
was walking along a lane, was resisted by the defendant to surrender the
dog instead of payment of compensation.
Rejecting this argument the appellate court held that although the
pauperian action is available in Ceylon and the owner of the animal is
liable for the full amount for the damage as compensation.
The right of the owner to surrender the offending animal in lieu of paying
damages is no part of our law today.
Alles J. described this remedy as farcical today
As Goonasekara says his judgment may be seen as a creative judicial
approach which seeks to an effect a departure from R.D.L principles that
have no relevance today

The willingness on the part of the judiciary to adopt roman Dutch law
principles in their endeavor to find remedies according to those principles is
reflected in the judgment of H.N.G Fernando j and thambiah j.
In Moosajee vs. carolis silva in this case the plaintiff who had enjoyed
light and air through a small window in his old building situated in the city of
Colombo,
Filed and action against the adjoining land seeking to prevent him from
constructing a building which would prevent his enjoyment of light and air.
So H.N.G Fernando and tambiah j. Having researched in the area of
servitude and interpreting the prescription ordinance, reversed an old
judicial precedent and held that
Under the law of Ceylon mere passive enjoyment of light and air
through a window for the prescription period of ten years did not
entitle an owner of land to the servitude of light by prescription.
Custody
Another important area of law where the principles of roman Dutch law were
widely applied was the custody of children.
According to ivaldy vs. ivaldy case
Where a mother filed an action for a writ of habeas corpus claiming the
custody of two teenage girls from her husband.
H.N.G Fernando J. decided that the R.D.L principles on the custody of minor
children apply in Sri Lanka despite the fact that the procedure for the
determination of writ of habeas corpus was familiar to English law.
The court held that in a situation where the marriage was subsisting, the
father has under R.D.L a preferential right to have the custody of
minor children unless it was proved that granting custody to him is
not interests of the child.
The same rational was adopted in the similar case of Madulawathi vs. wilpus
and in the later case involving the custody of minor children.
Maintenance
Roman Dutch law principles have been held to apply in the area of family
support and maintenance.
According to canakaratne vs. canakeratne case held that
A husband had deserted his wife and later filed an action to eject her from
matrimonial home.
T.S. Fernando j, held that under the R.D.L a wife has a right to remain in the
matrimonial home and the husband could not evict her without providing
alternative accommodation for her or providing maintenance for her to go
and live somewhere else.
So his lordship declared that.
We need not enter here upon an examination of a deserted wifes right under
the English law. Its sufficient to say that under the roman Dutch law,

the husband by reason of his duty of support has to provide his wife
with accommodation.
According to Alwis vs. Kulatunga case
A husband had deserted his wife and children and consented to leave the
house. at a court action filed against him for ejectment due to alleged
nonpayment of rent.
So here English law said that English law recognizes a right in the wife
to tender payment of rent
Lord dennings refers the position would appear to be even stronger in our
law, in Roman Dutch law that a third party may make payment on behalf of
a debtor.
When the statutory provision on maintenance is silent on the issue of the
right of parents to claim maintenance from their children, the principle of
R.D.L were utilized to fill the gaps.
Ex: - Ambalavanar vs. Navaratnam.
The law of delict is another area of law of Ceylon where the courts have
utilized Roman Dutch law principles resisting efforts to resort to English
judicial authorities.
Ex: - Perera vs. Pieris
David vs. Abdul kathar
Costa vs. times of Ceylon
In the area of law of contracts the commitment to resolve disputes
according to Roman Dutch law principles was evident even in the decisions of
the privy council which was an English court situated in England.
Ex: - Jayawickrama vs. Amarasuriya case.