Law Notes Comparative Law Notes
A collection of the best Comparative Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of Comparative Law notes available in the UK this year. This collection of notes is fully updated f...
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Comparative Law
Abbreviation index
FR = French law
EN = English law
DE = German law
FAULT-BASED LIABILITY
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?
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
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
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
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:
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...
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A collection of the best Comparative Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of Comparative Law notes available in the UK this year. This collection of notes is fully updated f...
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