Core themes with applicable law sorted for the 3 different jurisdictions - Requirements for application of laws for 3 different jurisdictions
German tort law, English tort law, French tort law
English tort law Always tell why other torts do not apply, so cut out categories from the beginning, but don’t jump to a tort directly.
First dismiss all the other ones
French law 1240 always mention that there might be a statutory duty, but that would require more research
Fault based liability basics
Negligence England, France, Germany
Breach of statutory duty England, Germany, France (+EU law)
English torts
Wrongfulness Germany
Wrongfulness France
Strict liability
,FAULT BASED LIABILITY:
Fault-based-liability liability of one’s own fault
Wrongfulness/ Fault
An act or behavior from the tortfeasor that should not have been committed
2 Elements:
o 1. Wrongfulness Objective side to look at the tort, meaning that the tort, legally, should not have been committed
o 2. Culpability Subjective side of the tort, legally speaking, it is to determine whether the act can be attributed to the person (some
torts require special form of culpability: intention)
Causality
The harm is caused by the fault, wrongful action must have caused harm (i.e. driving through traffic light and not causing accident is not a
tort)
o Factual causation (condicio sine qua non: establishing a legal causation
What would have happened if the act would not have occurred? (“But-for” test in English law)
o Legal causation: limits the extent of liability by not awarding compensation to losses which are too loosely connected to the wrongful act
remoteness or foreseeability (England)
direct and immediate consequence (France)
, attributability of damage to the fault (Germany/The Netherlands)
proximate cause (U.S.A.)
Harm
Interest of the victim has been injured
Material (pain, injury, damage to property etc.)
Immaterial (psychological damage etc.)
, Negligence England, Germany, France
It could be argued that this would lead to (tort of) negligence, on the basis of ……..
England Germany France
Requirements: (Found in Eric Tjong Tjin Tai 5 Schritte zu Negligence (1. Tatbestand, 2. 3 Schritte zu Negligence (Faute, Damage,
p.51/52) As they have been established/ Rechtswiedrigkeit, 3. Verschulden, 4. Causality, Causation)
mentioned in the Robinson Case v Chief 1. Faute (art. 1240 and 1241 Cc)
5. Damage)
Constable of West Yorkshire Police case.
1. the existence of a duty of care, 1. Tatbestand: Violation of codified normative Reasonable man test: (Van Dam Section
804)
rule (objective fault)
Wenn PERSONAL INJURY/ §823 I BGB (: infringement to the right of
A reasonable person have/ would not have
PROPERTY DAMAGE, dann Donoghue life, health, personal liberty, or another right …… skills and knowledge of the
and Stevenson always starting point for fault defendant)
liability)
Wenn PURE ECONOMIC LOSS, dann §826 BGB (if intentionally)
4 factor test, for whether of duty of care has
Hedley Byrne & Co Ltd v. Heller &
been breached (In the first requirement of
Partners Ltd 2. Wrongfulness (Rechtswiedrigkeit) show the tort of negligence): (From Tutorial 4)
how above provisions breached (objective fault)
2. a breach of that duty,
Identified provision, what was the harm 1) probability of causing harm
2) seriousness of expected harm
4 factor test, for whether of duty of care has 3) burden of precautionary measures
been breached (In the first requirement of 3. Verschulden – 5 criteria + §276 BGB (act 4) character and benefit of the conduct
the tort of negligence): (From Tutorial 4) contrary to care required by society) (subjective
fault) 2. Damage
1) probability of causing harm
2) seriousness of expected harm Material/ Immaterial
1) Reasonable man test: (Van Dam Section 804) Personal injury + property damage + pure
3) burden of precautionary measures
economic loss
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