This summary contains notes from the knowledge clips, readings, and lectures. All topics from the course are explained with direct references to the source materials and different legal systems.
Tort Law | Exam Preparation
Modules 2-10
Materials used:
● T.F.E. Tjong Tjin Tai, Introduction to Global Tort Law ,draft v.3 (Tilburg, 2021), The Reader
● C.C. van Dam,European Tort Law, 2nd edition, Oxford University Press: Oxford 2013.
Contents:
Module 2 - Fault, Negligence and Intent
General
Germany
France
England
Module 3 - Causation
General - Reader 2.3.3
Germany
France
England
Module 4 - Damages, Damage, and Harm
General
Germany - 1203-2
France - 1203-1
England - 1203-3
Module 5 - Breach of Statutory Duty and Defenses
General
Germany - 903
France - 904
England - 902
Defenses - Reader 2.4
Module 6 - Personality Rights and Personal Torts
Germany - 706-2
France - 706-3
England 706-4
Secondary victims
Module 7 - Property and Economic Torts
General
Germany
France
England
1
,Module 8 - Strict Liability
General - Reader 5.2
Germany
France
England
Module 9 - Liability for Objects
General
Germany
France
England
Defenses
Module 10 - Product Liability and Defamation
General
Germany
France
England
Global Tort Law
Module 2 - Fault, Negligence and Intent
● General
○ Fault - Reader 2.3.1
■ Subjective fault (degree of intent) → state of mind, did they want it to
happen?
■ Objective (wrongfulness) → the kind of action or omission (not doing an
act)
● Omission → inaction, not taking enough precaution
● Pure omission → failure to perform an act by law
○ Intention
■ Malicious intent → deliberate, aimed at harming the victim
■ Wilful intent → deliberate intent but you did not want the consequence to
happen
■ Deliberate intent didn’t aim at the consequences but didn’t care
○ Negligence - Reader 3.5
■ Would have wanted to avoid the consequence
■ You did not want to harm anyone but you didn’t take sufficient care
■ No foreseeability
■ Four-factor test (assessing reasonable person standard) (805-2) - United
States v Caroll Towing Co 1947:
2
, ● Probability
● The seriousness of expected harm
● The burden of precautionary measures → Bolton v Stone 1951
● Character and benefit of the conduct
■ Wrongfulness can be estbalished by statute, other writtenn rules and
unwritten rules (reasonable person test)
● Germany
○ Fault - 402
■ Fault liability requires objective fault, subjective fault and causality
(402-2):
● Objective:
○ (1) Tatbestand → is there an infringement of §828 I, 823 II
of bonos mores §826? (204-3)
■ Bonos mores → “acting contrary to moral good”
(204-4)
○ (2) Rechtswidrigkeit → if there a wrongful action violating
the law?
● Subjective:
○ Verschulden → culpability, §276 (general rule for
obligations)
■ (1) tortfeasor is responsible for intention and
negligence
■ (2) a person acts negligently if he fails to exercise
reasonable care
■ (3) the tortfeasor may be released in advance from
liability for intention
○ Intention - 802
■ §823 → “A person who intentionally or negligently unlawfully injures…”
■ §826 → “... intentionally inflicts damage on another person is liable for
compensation”
○ Negligence - 804-2
■ Conduct contrary to the care required by society
■ Particular violation of rights, §823 I and II, Verschulden (§276)
■ Established through statute, other written rules and reasonable person
test, §823 I Verkehrspflichten
● France
○ Fault - 301-1
■ Cc 1240 → “Any human act which causes damage to someone else
obliges the person by whose fault it occurred, to compensate it”
○ Intention 802-1
■ Cc 1241 → “one shall be liable not only by reason of one’s acts but also
by reason of one’s imprudence or negligence”
○ Negligence - 804-3
3
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