Summary
Summary ALL OF TORT IN ONE
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mixture of notes from the colleges, workshops supplemented by notes from the required readings
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Week 1: IntroductionObjectives:
The basics of comparative analysis
• Comparing sources of tort law
• Comparing legal reasoning methods between common law and code based legal systems,
• Stare decisis v. rule codification
• Comparing the functional purpose of tort law in common law and code jurisdictions
Introduction to tort law and non-contractual liability
• Vocabulary and terms of art
• The quest for a European IusCommune
• Basic rule on non-contractual liability arising out of damage caused to another in legal systems of the
European Union (VI.–1:101: Basic rule)
Definition of terms:
Tort: non-contractual liability
Damage: any type of detrimental effect, injury
Legally relevant damage (DCFR): Losses (economic and non-economic nature) and injury
Reparation/remedy: legal consequences of a (legally relevant) damage that has already occurred
Compensation: Financial reparation
Ground of accountability: Intention, negligence and accountability without intention nor negligence
(strict liability)
Plaintiff; claimant; victim; injured party; Π
Defendant; tortfeasor;Δ
Prima facie: if true, the facts alleged will allow recovery.
Dismissal: do the facts of the claim state a claim if true?
Summary judgment: does the evidence support the claim
Directed verdict-did the plaintiff prove his or her case at trial
Common law:
Doctrine of stare decisis: in common law court a court is obliged to follow decisions of prior courts that
have ruled on similar cases to produce a predictable outcome. A court that hears a case that presents a
new problem or “case of first impression” has the obligation to find the appropriate rule. This case then
becomes precedent, which can be either binding or persuasive. A decision form a superior court or from
the same court on the same set of fact is binding precedent.
Lawyers find a case with identical facts (at least similar) and extract a rule of law from the holding in that
case. The lawyers then argue that that prior decision is binding on the current case because of stare
decisis or, in the event it is not binding, it is persuasive. The entire argument is based on the similarity of
facts between the two cases. Lawyers on the other side of the case may argue that the principle of law
does not apply because the facts are different or because the case is from a different court system that
treats the issue differently. This is called “distinguishing the case.”
• Within common law principles are extracted from code law
• Rules are decided and applied based on the relevant facts
,Sources of law:
1. Case law (binding precedent)
2. Statutory Law
3. Regulatory Law
The goal of tort is:
1. Corrective justice (Ex Post)
• Making the injured party “whole” again
2. Deterrence of Future Wrongdoing (Ex Ante)
• Corrective action for the benefit of the entire society
• Corrective private action in place of governmental action
• Requires an open, accessible court system,
• Within common law principles are extracted from code law
• Rules are decided and applied based on the relevant facts
Civil Law:
Sources of law:
1. Rules are laid down by the legislator
• which are general rules that allow national court to further develop this are of law
2. Systematic approach:
• academic writing are very important in the development of the law
3. Case law
• Which makes the general rules easier to apply, when the legislator hasn’t drafted specific rules to cover
each aspects of everyday life.
Purpose tort law:
1. Reparation (Ex Post)
• The restore the situation exactly to the status before it was disturbed by the harm and to restore and
resort the victim to the situation in which he would have been if the wrongful conduct hasn’t occurred.
2. Recognition (Ex Post)
• Recognition that the victim has suffered a wrong to that the individuals right has been infringed
3. Prevention (Ex Ant)
• Punishments to prevent people from wrongdoing
• Punitive damages are awarded especially in cases of violation of a person’s rights
European tort Law:
• legislation of the EU (treaty provisions, regulations, directives and case law CJEU)
• European Convention on Human Rights (case law of the European Court of Human Rights)
• National tort laws in Europe (code-based jurisdictions)
Lus Commune: the concept of a unified European legal tradition.
Book VI: Non-contractual liability arising out of damage caused to another
Basic rule in DCFR: Art. 1:101
(1) A person who suffers legally relevant damage has a right to reparation from a person who caused the
damage intentionally or negligently or is otherwise accountable for the causation of the damage.
, (2) Where a person has not caused legally relevant damage intentionally or negligently that person is
accountable for the causation of legally relevant damage only if Chapter 3 [accountability without
intention or negligence] so provides
3 elements of non-contractual liability:
1. Grounds of accountability (Chapter 3 DCFR):
• Intention
• Negligence
• Accountability without intention or negligence
2. Causation (Chapter 4 DCFR):
• “it must be possible to say of the damage (...) is to be regarded as a consequence of the liable
person’s conduct or of a source of danger for which that person is responsible”
3. Legally relevant damage (Chapter 2 DCFR):
Week 2: Intention & Negligence - DCFR
Objectives:
The concept of intention in the DCFR:
• Intention as a ground of accountability
• Definition
• The elements of Rule VI. –3:101
Negligence in the DFCR:
• Duty of care in the DCFR
• Duties of care required by statute
• General duty of care(neminen laedere)
• Negligence and persons under eighteen
The basic rule in the DCFR, Art. 1:101:
(1) A person who suffers legally relevant damage has a right to reparation from a person who caused
the damage intentionally or negligently or is otherwise accountable for the causation of the damage.
(2) Where a person has not caused legally relevant damage intentionally or negligently that person is
accountable for the causation of legally relevant damage only if Chapter 3 [accountability without
intention or negligence] so provides.
There are 3 elements of non-contractual tort liability:
1. Causation (Chapter 4 DCFR)
2. Grounds of accountability (Chapter 3 DCFR)
3. Legally relevant damage (Chapter 2 DCFR)
Grounds of accountability, there are 3 grounds of accountability according to the DCFR:
1. Intention (Art. VI 3:101 DCFR)
2. Negligence
3. Accountability without intention or negligence
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