#14974 - Fault Based Liability - Comparative Law

Comparative Law

Abbreviation index

• FR = French law

• EN = English law

• DE = German law

FAULT-BASED LIABILITY

1. PREREQUISITES FOR ESTABLISHING LIABILITY

Are there two questions: (1) how badly did the tortfeasor behave? And (2) did the tortfeasor commit a wrongful act? Or is there only one question?

1. General principle of liability under FR

Advantages and disadvantages of a general principle of liability for inflicting harm

• Viney: when based on general principles, such as those of 1240/1242(1) the law of civil liability not only allows the court to uphold rights already acknowledged to exist, but also contributes to emergence and protection of rights at yet inchoate and unrecognised

  • = method of complementing and improving the legal system and bringing it up to date

• By opposition, separate principles of tortious liability do not allow for adaptation and growth of tort law to meet changing circ or new perceived needs

• In a legal system where number of individual torts, where one of the principles of tortious liability is more general than others, question becomes should the more general principle of liability be allowed to “spill over” into specific areas and create liability where specific principle of tortious liability is subject to exceptions?

  • EN: tort of negligence as more general principle of liability should a C be able to avoid defence of qualified privileged available in respect of tort of defamation by framing her claim in negligence?

  • DE: liability under 823 para 1: should a person’s right under this paragraph to carry on an established business enable her to claim against the maker of an untrue statement in circumstances excluded from the ambit of 824?

• In a system where general principle of tortious liability other problem when should it not apply?

  • FR: Problem of extent to which a D should be liable for harm caused to others indirectly

FR: Paradigm of a system based on a general principle of liability extraordinarily broad scope of general principle of liability for intentional and negligent conduct

• Harm + fault necessary elements of liability – Art 1240: any act which causes damage to another obliges the person by whose fault it occurred to make reparation

• Basis of liability very wide and extended further by Art 1241: any person is liable for the damage caused not only by one’s own act but also one’s “negligence or imprudence”.

Articles based on natural law idea that whole of the law of delict can be traced to a unitary fundamental principle

• First question is an inquiry in substance of case: question of fault, causation and damage

Little discussion on scope of protection of tort law

• No restriction as to rights or interests protected

• No a priori limitation as to class of protected person Every C who can prove damage damage and causation can claim compensation

  1. Central requirement of fault

Central requirement of fault: must be attributable to D’s culpable behaviour

• CC does not put forth any definition of faute

• Mazeaud and Tunc have construed it as a failure to observe a conduct which the D ought to have respected, which includes the idea of:

  • faute délictuelle, when D’s intention was to cause harm

  • faute quasi-délictuelle, a reprehensible conduct which a reasonable person in the circumstances would not have committed

Conduct can include omission – Branly is an example of just how broad and unpredictable Art 1240 and 1242 are

• Facts: D had written a history of the development of telegraphy which had omitted all references to the part played in the development by Branly

• Held: Cour de Cass declared that a failure to act may constitute fault even in the absence of such an intention where the D was under the terms of a legal, statutory, contractual or professional obligation

Fault may include: intention, negligence, breach of pre-existing duty, omission where D was in breach of duty (Branly) or where done with the intention of harming another

1. Restrictive approach of DE and EN tort law

DE and EN take a restrictive approach to interests and relationships to be protected by tort rules

• DE: protected interests enumerated in three general provisions

• EN: specifies distinction torts which guard special interests against particular forms of unacceptable conduct, each with distinctive rule

Questions of fault, causation and damage also raised in DE and EN but only after existence of an interference with a specific protected interest under DE or a DoC under EN law

1. DE

Rejection of a general principle of liability – Zweigert & Kötz note that the men behind the BGB were tempted to follow the CC and to include a general clause which would impose liability in damages whenever harm was unlawfully and culpably caused

• But general clauses felt to simply conceal the difficulties|: would empower the judge to resolve them + would be inconsistent with current German view of the judicial function

• As a result BGB had no general rule covering liability for harm caused by unlawful acts

Rather than a general principle, three heads of tortious liability which restrict claims in tort from the very outset:

1. Infringement of enumerated rights or interests – §823(1) BGB:

   • 823(1): appears as wide as the general basis of liability under FR tort law but in fact interpreted more narrowly

     • Liability for causing injury in an unlawful and culpable manner only arises if injury affecting the victim is one of the legal interests (Rechstgüter) enumerated in a limitative manner: life, body, health, freedom, ownership + any “other right”

     • Only two more general rights have been recognised by the courts the status of other “other rights”:

       • Recht am Gewedebetrieb, right to an established and active business – Patent designs (1904)

         • Allows for more protection of economic interests

       • Persönlichkeitsrecht: attributes to honour, integrity, name, etc. Herrenreiter (1958)

         • Relied on Art 1 and 2 of the Constitution Constitution thus used to expand category of protected interest

     • No economic loss: compensated under 823 only if flows from an injury to one of the legal interests specified in that provision

   • Dual requirements:

     • Unlawfulness satisfied by invasion of any of such legal interest

     • Culpability or fault: satisfied if harmful conduct either intentional (with intention of invading protected legal interest) or negligent

2. Violation of statutory duties – 823(2) when a “statute designed to protect another” culpably contravened

   1. Protective statutes include all the rules of private and public law

   2. Claim allowed only if statute designed to protect a person or a group of persons rather than the public as a whole has been culpably contravened

   3. Harm only compensable where it results from the very danger which it was the purpose of the protective statute to diminish or eliminate

      1. No claim for PEL under 823(2) if protective statute directed to prevention of personal injury and property damage only

3. Intentionally caused loss – §826 where person ‘intentionally causes harm to another in a manner which offences contra bonos mores”

   1. Where one has caused harm to another by behaviour so offensive and improper as to incur strong disapprobation from average person in society

   2. Not necessary to show that D actually intended to cause the harm, enough if conscious of possibility that harm might occur and acquiesced in its doing so

      1. Central idea of wrongfulness

According to prevailing view “Theorie des Erfolgsunrechts” fault and wrongfulness relate to clearly different aspects, building on distinction once made by Hasse

• Wrongfulness = objective violation of the legal order, especially by violation of an absolutely protected interest in 823(1) – indicates any invasion of the legally protected sphere of another person, which is not justified by a legal rule

  • Means that the act itself must offend the law

• Fault – attitude of tortfeasor towards her conduct, relates to idea of moral blame (Verschulden)

  • Wrongdoer neglected the standard of care that would have been expected of her under the circ, objectively measured

Alternatively, Theorie des Handlungsunrechts advocates that objective DoC is part of the notion of wrongfulness: an infringement of legal interests of another person is unlawful only if the wrongdoer neglected the DoC that she owed to the victim

• Can be: breaches a required standard of conduct (Verhaltensnorm) OR breaches a general duty not to inflict injury on others (allgemeine Sorgfaltspflicht) §276 Abs. 2

• Fault here concerned with question of whether actor could invoke any recognised excuses for fault, e.g. mental illness

Dividing line between wrongfulness and fault further watered down by increase of duties of care (Verkehrspflicthen)

• In cases of omission difficult to separate spheres of wrongfulness and fault since formula to establish negligence (neglect of due care 276(2) BGB) is already needed to establish wrongfulness of an omitted conduct

if you focus on the conduct of the wrongdoer, what you are doing is asking the same question of whether somebody is at fault. You are breaching a standard conduct or a general duty.

1. EN

EN has nothing even approaching a general principle of liability to continental legal systems, CL founded on having specific torts - CL lawyer regards specific torts as pretty independent only tenuously and invisibly connected

• Strength: careful way it weighs and works out the specific characteristics of each individual tort + type of case to which it is applied

• Weakness: risk that if each separate tort has its own preconditions, defences, etc, the system may become unduly complex

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