Introduction to the tort law of European Countries 2.pptx

# Introduction to tort law principles and functions Tort law is a system of civil liability that addresses wrongs committed by one party against another, distinct from contractual obligations, focusing on the protection of legal positions and the provision of remedies. ## 1. Introduction to tort law principles and functions Tort law is concerned with fundamental questions regarding the nature of liability, its purposes, the interests it protects, the conduct that triggers it, and the criteria for attributing responsibility and awarding compensation. ### 1.1 What is tort liability? Liability generally refers to being subject to an obligation to pay damages. Tort liability specifically arises when there is a violation of a legal position protected by the legal system by an individual who is not contractually bound to the victim. It is distinct from accountability. ### 1.2 What is (are) the function(s) of tort law? The functions of tort law can be categorized as follows: * **Compensatory function:** This is the primary aim, seeking to restore the victim to the position they were in before the wrong occurred. This is often achieved through monetary damages, representing the pecuniary equivalent of the loss suffered. The logic is essentially bilateral, focusing on the relationship between the wrongdoer and the victim. * **Deterrence function:** Tort law aims to prevent future wrongs by discouraging potential wrongdoers. This function is more prominent when considering the broader societal implications of accidents and behavior. * **Punitive function:** In some jurisdictions, tort law can also serve to punish the wrongdoer. This involves awarding damages that go beyond compensating the victim's loss, focusing instead on the wrongdoer's conduct and its deterrent effect. This raises questions about the compatibility of punitive damages with civil law systems and the extent to which civil judges can award them. > **Tip:** While compensatory damages are loss-oriented and victim-focused, punitive damages are wrong-oriented and often consider the tortfeasor and society. Compensatory damages primarily look at past and future losses related to the victim, whereas punitive damages have a stronger emphasis on deterrence and future conduct. ### 1.3 What are the legal positions protected by tort law? Legal systems approach the identification of protected legal positions in tort law through two main methods: * **Atypicality of torts:** Some legal systems, like those in France and Italy, do not have a closed list of specific torts. Instead, tort liability is based on a general prohibition against harming others (e.g., the principle of *neminem laedere* - "to harm no one"). * **Typicality of torts:** Other systems, historically rooted in Roman law and continuing in German and English law, define torts as specific, recognized wrongs. While these lists can evolve, they provide a more defined framework for actionable conduct. #### 1.3.1 The French approach French law operates under a general principle of liability for causing harm to others. * **Article 1240 of the French Civil Code** states that any act of a person that causes damage to another obliges the person at fault to repair it. * **Article 1241** further clarifies that each person is responsible for damage caused not only by their direct actions but also by their negligence or imprudence. Beyond these general provisions, French law also addresses specific forms of liability: * **Vicarious liability (responsabilité pour fait d’autrui):** Article 1242 outlines situations where individuals are liable for the actions of others or for things under their control, including parents for their minor children, employers for their employees, and educators for their students. Exemptions from this liability are often contingent on proving the inability to prevent the harmful act. * **Liability for animals:** Article 1243 holds the owner or user of an animal responsible for any damage it causes, regardless of whether it was under their direct care. * **Liability for collapsing buildings:** Article 1244 makes the owner of a building liable for damage caused by its ruin, if the ruin results from a lack of maintenance or a defect in construction. * Additional chapters address liability for defective products and compensation for ecological damage. #### 1.3.2 The Italian approach Italian tort law, codified in Article 2043 of the Civil Code, also centers on the concept of wrongful damage caused by an intentional or negligent act. * **Article 2043 c.c.** stipulates that any intentional or negligent act causing wrongful damage to another obliges the perpetrator to compensate for that damage. * The concept of "wrongful damage" has evolved to encompass not only infringements of absolute rights but also relative rights, factual positions, legitimate interests, and ultimately, any interest protected by the legal system. Italian law also includes several provisions for vicarious and strict liability: * **Articles 2048 to 2054** cover various specific liabilities, including those of parents, guardians, employers, for dangerous activities, for things in custody, for animals, for collapsing buildings, and for the circulation of vehicles. #### 1.3.3 The German approach German tort law is characterized by general provisions complemented by specific statutes. * The primary provisions are **§§ 823 I, 823 II, and 826 of the German Civil Code (BGB)**. * **§ 823 BGB** establishes liability for anyone who intentionally or negligently injures the life, body, health, freedom, property, or other right of another contrary to law. It also addresses infringements of statutory provisions intended for the protection of others. * **§ 824 BGB** concerns liability for untrue statements that endanger credit or earnings. * **§ 825 BGB** deals with liability arising from inducing a woman to illicit cohabitation through fraud or threats. * Other specific provisions address liability for animal supervision, collapsing buildings, and public officials. #### 1.3.4 The common law (England and Wales) approach Historically, English tort law originated from a system of specific legal writs, leading to a "typicality" of torts. * The **writ of trespass** was an early form of action protecting the inviolability of persons and property against direct physical interference. This evolved into **trespass to person** (assault, battery, false imprisonment), **trespass to land**, and **trespass to chattels**. * Over time, the writ of trespass developed into **trespass upon the special case (action on the case)**, which extended liability to wrongs committed without direct physical violence, covering harms caused by indirect means or negligence. * English case law has progressively recognized new torts and expanded existing ones, often guided by the general principle of *neminem laedere*. * The **tort of negligence** has become a dominant figure in contemporary English tort law, arising from the need to address harms caused by industrial machinery. It is founded on a general **duty of care**, which requires individuals to take reasonable care to avoid foreseeable harm to their "neighbor." This duty's scope is flexible and assessed on a case-by-case basis, considering situations where one person's actions or omissions could reasonably endanger another's physical integrity or possessions. ### 1.4 What are the subjective criteria to attribute liability? The attribution of tort liability can be based on several subjective criteria: * **Intention or malice:** Liability arises from a deliberate act to cause harm. * **Negligence or fault:** Liability arises from a failure to exercise reasonable care. * **Objective scope of activity and sphere of risk (strict liability):** In certain activities deemed inherently dangerous, liability may be imposed regardless of fault. * **Position towards the source of the damage (vicarious liability):** Liability can be imposed on one party for the tortious acts of another, such as an employer for an employee. ### 1.5 What are the objective criteria to attribute liability? Objective criteria focus on the factual links required for liability: * **Causation link:** This involves two aspects: * **Material causation link:** The link between the tortfeasor's conduct and the infringement of a protected legal position. The prevailing doctrine for assessing this link is the "necessary condition" or *condicio sine qua non* test. * **Legal causation link:** The link between the infringement of the legal position and the consequential damages suffered by the victim. ### 1.6 What if the victim contributed to the wrong? This issue is known as "contributory negligence" in common law and is often related to the general civil law duty to mitigate losses. Typically, damages awarded are reduced proportionally to the victim's percentage of contribution to the causation of the damage. ### 1.7 What are the damages that can be compensated? Damages that can be compensated generally fall into these categories: * **Patrimonial damages:** These include tangible losses such as expenses incurred, loss of opportunities, and biological damage. * **Moral damages:** These cover non-pecuniary losses like pain and suffering, and existential damage. * **Thanatological damage:** This refers to damages related to death. * Damages can be claimed *jure proprio* (in one's own right) or *jure hereditatis* (by inheritance). * Only foreseeable damages are typically compensable. ### 1.8 Are there cases in which the tortfeasor is exempted from liability? Yes, there are circumstances that can exempt a tortfeasor from liability: * **Self-defence:** Provided the response is proportionate. * **State of necessity:** Where harm is caused to avoid a greater harm. * **Consent of the victim:** If the victim validly consents to the risk. * **Legal liability exemptions:** Statutory provisions may carve out specific exemptions. * **Agreed liability exemptions:** Parties may agree to limit or exclude liability, within legal limits. ### 1.9 What are the capacity requirements for being held liable? Generally, torts are not considered legal transactions (*négoces juridiques*). Civil codes often require only natural capacity, not legal capacity, for an individual to be held liable. The consequences of a wrong committed by a person who has natural capacity but lacks legal capacity will then be addressed by identifying who bears the repercussions. --- # Approaches to tortious conduct and liability across different legal systems This topic examines the diverse legal frameworks governing tortious conduct and liability in France, Italy, Germany, and common law jurisdictions, highlighting their foundational principles and specific legislative provisions. ### 2.1 Foundational Concepts in Tort Law Tort liability arises from the violation of a legally protected right or interest by an individual who is not contractually obligated to the victim. This liability is distinct from mere accountability. #### 2.1.1 Functions of Tort Law Tort law serves several key functions: * **Compensatory:** Aims to restore the victim to their pre-tortious condition, typically through monetary damages. This function is primarily bilateral, focusing on the relationship between the wrongdoer and the victim. * **Deterrence:** Seeks to prevent future wrongful acts by individuals or society at large. * **Punitive:** Involves punishing the wrongdoer, distinct from compensation. The application and extent of punitive damages are a significant point of divergence between legal systems, with civil law systems generally being more hesitant to award them compared to common law systems. > **Tip:** While compensatory damages are victim-oriented and loss-focused, punitive damages are tortfeasor and society-oriented, and wrong-focused. Compensatory damages look at past and future losses, while punitive damages emphasize deterrence and future prevention. ### 2.2 Approaches to Tortious Conduct Legal systems approach the definition of tortious conduct through two primary frameworks: #### 2.2.1 Atypicality of Torts In legal systems like those in France and Italy, tort liability is not confined to a predefined list of specific wrongs. Instead, it rests on the broader principle of *neminem laedere* – the prohibition against harming others. This means that any conduct, intentional or negligent, causing damage to another can give rise to liability. #### 2.2.2 Typicality of Torts Conversely, some legal systems, including German and English law, historically originated from a more typical approach where delicts (wrongs) were specific and defined. While these systems have evolved, a degree of typicality remains, often with legislative provisions defining specific tortious acts. ### 2.3 Tortious Conduct and Liability in Specific Legal Systems #### 2.3.1 The French Approach French tort law is primarily governed by the Civil Code, emphasizing the principle of *neminem laedere*. * **Article 1240:** States that any act by a person that causes damage to another obliges the person at fault to repair it. * **Article 1241:** Extends liability to damage caused not only by direct action but also by negligence or imprudence. French law also elaborates on specific forms of liability: * **Responsabilité pour fait d’autrui (Vicarious Liability):** * **Article 1242:** Establishes liability for the acts of persons for whom one is responsible or for things under one's custody. * **Parents:** Jointly liable for damage caused by their minor children residing with them, unless they prove they could not prevent the act. * **Employers (Committants):** Liable for damage caused by their employees (commis) in the course of their employment, unless they prove they could not prevent the act. * **Teachers and Artisans:** Liable for damage caused by their pupils and apprentices during their supervision, with specific evidentiary burdens for the claimant regarding teachers' negligence. * **Liability for Animals (Article 1243):** The owner or user of an animal is responsible for damage caused by it, regardless of whether the animal was under their guard or had escaped. * **Liability for Collapsing Buildings (Article 1244):** The owner of a building is responsible for damage caused by its collapse, if the collapse resulted from a lack of maintenance or a defect in construction. French law also includes provisions for product liability and ecological damage. #### 2.3.2 The Italian Approach Italian tort law, rooted in its Civil Code, also adopts a broad principle of liability. * **Article 2043 c.c.:** Stipulates that any intentional or negligent act causing wrongful damage to another obliges the perpetrator to compensate for that damage. * The concept of "wrongful damage" has evolved from infringements of absolute rights to encompass relative rights, factual positions, legitimate interests, and any interest protected by the legal system. Italian law, similar to French law, includes provisions for: * **Vicarious and Strict Liability:** * **Article 2048 c.c.:** Liability of parents, guardians, preceptors, and art masters. * **Article 2049 c.c.:** Liability of employers. * **Article 2050 c.c.:** Liability for dangerous activities. * **Article 2051 c.c.:** Liability for things in custody. * **Article 2052 c.c.:** Liability for animals. * **Article 2053 c.c.:** Liability for the collapse of a building. * **Article 2054 c.c.:** Liability for the circulation of vehicles. Special statutes also govern areas like product liability. #### 2.3.3 The German Approach German tort law, codified in the Bürgerliches Gesetzbuch (BGB), combines general provisions with specific ones. * **General Provisions:** * **§ 823 I BGB:** Imposes liability for wilfully or negligently injuring the life, body, health, freedom, property, or other right of another contrary to law. It requires compensation for damages arising therefrom. * **§ 823 II BGB:** Imposes liability for infringing a statutory provision intended for the protection of others. If the statute allows for infringement without fault, liability only arises if fault can be imputed to the wrongdoer. * **§ 826 BGB:** Addresses liability for intentional acts that are contrary to good morals and cause damage. * **Specific Provisions:** * **§ 824 BGB:** Deals with liability arising from untrue statements that endanger credit or earnings. Liability arises even if the untruth was not known, provided it ought to have been known. Communications made without knowledge of untruth do not create liability if there was a justifiable interest. * **§ 825 BGB:** Imposes liability for damage caused by fraudulently or threateningly inducing a woman into illicit cohabitation, or by abusing a relationship of dependence. * Other provisions address liability for animal supervision (§ 834), ruinous buildings (§ 836), and public officials (§ 839). #### 2.3.4 The Common Law (England and Wales) Approach English tort law has historical roots in specific forms of action, which initially led to a system of typical torts. * **Origins in Writs:** Historically, claims were made through specific "writs," each with its own procedural rules. This procedural rigidity influenced the development of substantive tort law. * **Writ of Trespass:** The foundational writ, protecting the inviolability of persons and property against physical interference. It had quasi-criminal undertones, potentially leading to penalties beyond compensation. * **Trespass to Person:** Including assault, battery, and false imprisonment. * **Trespass to Land.** * **Trespass to Chattels.** * **Writ of Trespass on the Case (Action on the Case):** Developed in the 14th-15th centuries to address wrongs not involving direct physical violence or immediate interference. This allowed for liability in situations of indirect harm. * **Development of Negligence:** English case-law has expanded liability by applying general principles and developing new torts. The tort of negligence, which emerged in the early 20th century, is now a dominant figure in English tort law. * It is based on a general **duty of care**, defined as the obligation to take reasonable care to avoid acts or omissions that could reasonably foreseeably injure one's "neighbour" (another person). * The scope of this duty is flexible and determined on a case-by-case basis, encompassing situations where one party's actions or omissions create a foreseeable risk of harm to another's physical integrity or possessions. ### 2.4 Subjective and Objective Criteria for Liability Across these legal systems, liability is attributed based on: #### 2.4.1 Subjective Criteria * **Intention or Malice:** Deliberate acts causing harm. * **Negligence or Fault:** Failure to exercise reasonable care. * **Objective Scope of Activity and Sphere of Risk (Strict Liability):** Liability attaches regardless of fault, based on engaging in inherently dangerous activities or controlling potentially hazardous instrumentalities. * **Position Towards the Source of the Damage (Vicarious Liability):** Responsibility for the actions of others or things under one's control. #### 2.4.2 Objective Criteria * **Causation Link:** This involves two aspects: * **Material Causation Link:** The connection between the tortfeasor's conduct and the infringement of a legal position. The prevailing doctrine is the *condicio sine qua non* (necessary condition) test. * **Legal Causation Link:** The connection between the infringement of the legal position and the consequential damages. > **Tip:** The *condicio sine qua non* test asks whether the damage would have occurred "but for" the defendant's conduct. If the answer is no, then the conduct is a necessary condition for the damage. However, this test is often supplemented by other considerations to limit liability to foreseeable consequences. ### 2.5 Defences and Exemptions #### 2.5.1 Contributory Negligence This refers to situations where the victim contributes to their own harm. In civil law, it's often related to the general duty to mitigate losses. Damages are typically awarded proportionally to the degree of the victim's contribution to the causation of the damage. #### 2.5.2 Exemptions from Liability In certain circumstances, a tortfeasor may be exempted from liability: * **Self-Defence:** Provided the defence is proportionate to the threat. * **State of Necessity:** Acting to avert a greater harm. * **Consent of the Victim:** If the victim validly consents to the risk. * **Legal Liability Exemptions:** As provided by statute. * **Agreed Liability Exemptions:** Through contractual agreements, where permissible. ### 2.6 Capacity Requirements Generally, tortious acts are not considered legal transactions (*négoces juridiques*). Civil codes typically require only "natural capacity" (the ability to understand and will) for a person to be held liable. Issues arise when an individual has natural capacity but lacks legal capacity, with the consequences falling on another party. ### 2.7 Damages Compensable damages can include: * **Patrimonial Damages:** Financial losses such as expenses incurred, loss of opportunities, or biological damage. * **Moral Damages:** Compensation for non-pecuniary suffering, such as pain or existential damage. * **Thanatological Damage:** Damages related to death. Damages are typically awarded for both *jure proprio* (in one's own right) and *jure hereditatis* (by right of inheritance). Importantly, only foreseeable damages are generally compensable. --- # Criteria for attributing tort liability and damages This section outlines the fundamental elements required to establish tort liability, including subjective and objective criteria, and details the types of damages that are compensable, as well as potential exemptions from liability. ### 3.1 Subjective criteria for attributing liability Subjective criteria for attributing liability focus on the mental state or position of the tortfeasor in relation to the damage caused. These can include: * **Intention or malice:** This involves a deliberate act or desire to cause harm. * **Negligence or fault:** This refers to a failure to exercise the required standard of care, leading to harm. * **Objective scope of activity and sphere of risk (strict liability):** In some cases, liability is imposed regardless of fault, based on the inherently dangerous nature of an activity or the control over a harmful source. * **Position towards the source of the damage (vicarious liability):** This concerns liability for the actions of others or for damages caused by things under one's control. ### 3.2 Objective criteria for attributing liability Objective criteria focus on the causal link between the tortfeasor's conduct and the resulting damage. #### 3.2.1 Causation link The causation link is a crucial element, establishing the connection between the tortfeasor's conduct and the infringement of a legal position (material causation link), and between the infringement and the consequential damages (legal causation link). * The prevailing doctrine for assessing the existence of this link is the **necessary condition (condicio sine qua non)**. This means that if the damage would not have occurred but for the tortfeasor's conduct, then causation is established. ### 3.3 Contribution of the victim to the wrong When the victim contributes to the damage, common law refers to this as "contributory negligence." In civil law systems, this is often related to the general duty of mitigating losses. Typically, damages are awarded based on the percentage of the victim's contribution to the causation of the damage. > **Tip:** Understand how different legal systems approach the victim's contribution to the harm, as it directly impacts the quantum of damages awarded. ### 3.4 Damages that can be compensated The types of damages that can be compensated in tort law generally fall into several categories: * **Patrimonial damages:** These include quantifiable financial losses such as expenses incurred, loss of opportunities, and biological damage (impairment of physical health). * **Moral damages:** These encompass non-economic losses such as pain, suffering, and existential damage (impact on one's way of life). * **Thanatological damage:** This refers to damages related to death, which may be claimed either in one's own right (jure proprio) or as an inheritance from the deceased (jure hereditatis). * **Foreseeable damages:** Only damages that were reasonably foreseeable at the time of the tortious act are typically compensable. > **Example:** If a person suffers a broken leg due to a defendant's negligence, patrimonial damages might include medical bills and lost wages, while moral damages could cover pain and suffering. ### 3.5 Exemptions from liability In certain circumstances, a tortfeasor may be exempted from liability, even if their actions caused damage. Common grounds for exemption include: * **Self-defence:** Provided that the defensive action was proportionate to the threat. * **State of necessity:** When the tortfeasor acted to prevent a greater harm. * **Consent of the victim:** If the victim voluntarily agreed to the risk of harm. * **Legal liability exemptions:** These are statutory or common law provisions that relieve liability in specific situations. * **Agreed liability exemptions:** This refers to situations where parties contractually agree to limit or exclude liability, though such agreements may be subject to legal limitations. ### 3.6 Capacity requirements for being held liable Generally, torts are not considered legal transactions. Civil codes typically require "natural capacity" (the ability to understand and intend) rather than "legal capacity" (the ability to enter into legal relations) for a wrong to be actionable. If a person possesses natural capacity but lacks legal capacity, the consequences of their wrongful act will fall on another party. --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Tort liability | The obligation to pay damages arising from a violation of a legally protected position by a person not contractually linked to the victim. | | Compensatory function | The primary goal of tort law aimed at restoring the victim to the condition they were in before the wrongful act occurred, typically through monetary compensation for losses suffered. | | Deterrence function | A function of tort law designed to prevent future wrongful acts by creating disincentives for potential wrongdoers. | | Punitive function | A function of tort law that aims to punish the wrongdoer for egregious conduct, often through damages exceeding actual loss, to serve as an example. | | Atypicality of torts | The legal principle, prevalent in systems like French and Italian law, where tort liability is based on a broad prohibition against harming others (neminem laedere), rather than a fixed list of specific tortious acts. | | Typicality of torts | The legal principle, observed in systems like Roman, German, and English law, where tort liability is traditionally tied to specific, defined wrongs or actions, analogous to categories found in criminal law. | | Vicarious liability | A form of liability where one party is held responsible for the wrongful actions of another, often based on a specific relationship (e.g., employer-employee, parent-child). | | Strict liability | Liability imposed without a finding of fault or negligence, often applied in cases involving inherently dangerous activities or the use of hazardous instrumentalities. | | Causation link | The connection between a tortfeasor's conduct and the resulting harm to the victim, comprising both the material link (conduct to infringement) and the legal link (infringement to damages). | | Condicio sine qua non | The "but for" test, a prevailing doctrine used to assess the existence of a causation link, determining whether the damage would have occurred without the tortfeasor's conduct. | | Contributory negligence | The legal doctrine where a victim's own negligence or contribution to the cause of their injury reduces or bars their recovery of damages. | | Patrimonial damages | Financial losses incurred by the victim, including expenses, loss of future opportunities, and damage to physical well-being, which are quantifiable in monetary terms. | | Moral damages | Compensation awarded for non-pecuniary losses, such as pain, suffering, emotional distress, and impacts on quality of life resulting from a tortious act. | | Self-defence | A legal justification for using force to protect oneself from imminent harm, which can exempt a tortfeasor from liability if the force used is proportionate to the threat. | | State of necessity | A legal defense that may excuse a tortfeasor from liability when their actions, though causing harm, were necessary to prevent a greater harm to themselves or others. | | Legal capacity | The legal ability of a person to enter into contracts, incur obligations, and be held fully responsible for their actions under the law. | | Natural capacity | The inherent mental ability of a person to understand the nature and consequences of their actions, which is a prerequisite for understanding wrongful conduct, even if legal capacity is lacking. |