Summary

Summary European Tort Law - Exam Prep

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Module
2523

Institution
Universiteit Van Amsterdam (UvA)

The document contains class notes and notes from the Van Dam book for each module. The case laws are complete and extensively analysed. The following topics are included: Week 1 - history and functioning of tort law Week 2 - structure of national systems, protection of interests Week 3 ...

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Uploaded on May 23, 2024
Number of pages 99
Written in 2023/2024
Type Summary

tort law
delict
european tort law
private law
liability
causality
damage
damages

Institution
Universiteit van Amsterdam (UvA)
Education
European Tort Law
Module
2523

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Tort Law Exam Prep

Week 1 - history and functioning of tort law

Week 2 - structure of national systems, protection of interests

Week 3 - liability based on “wrongs”; the requirement of “fault”

Week 4 - damage, damages, & loss of a chance

Week 5 - factual causation; multiple causes

Week 6 - “legal causation”; contributory negligence

,Week 1 A short history of tort law: Roman Law
Tort law = Extra-contractual relationship: liable for a wrong that is not based on a contractual relationship → non-contractual liability

Christian von Bar
- Law of delict describes the field of PL which determines whether a person who has sustained damage has a right to
compensation
- Function: compensation of damage
- No prior relationship between victim and tortfeasor
- Law of delict is part of law of obligations
- In every legal system of the EU cases in which a party is found to have non-contractual responsibility for damage caused to
another party can be divided into liability with and liability without personal misconduct on the part of the person sued.
-

● Compensation - Aiming to compensate the victim - focus on the victim - in a specific Circumstance for the harm they suffered
● Sometimes prevention - Focus shifts on the defendant/tortfeasor
● Everyday frequent torts - traffic

1. Continental Europe
Tort system with punitive elements - Roman system
● The Romans distinguished 3 sources of obligations:
○ 1) ex contractu (contracts)
○ 2) ex delicto and (delicts)
○ 3) ex variis causarum figuris (quasi-contract & quasi-delict (as if it is))
● Gaius’s Institutes (2nd century A.D.); G. III, 182 → differentiated delict from contract (law of obligation is described)

,○ Let us pass now to those obligations that originate in delict, as when theft has been committed, robbery, wrongful
damage to property or [personal] injury. The obligation in all of these is of the same sort; whereas, as we have seen,
contractual obligations are of four sorts.
■ Four categories of Roman delicts/the structure of national systems under Roman law:
● ⇢ furtum = theft
● ⇢ rapina = robbery (theft with violence)
● ⇢ Damnum iniuria datum = wrongful damage to property (Justinian’s digest)
● ⇢ Iniuria = personal injury (defamation, slander)
■ Punitive elements: → Roman Law had a penal character
● ⇢ actio furti: 2x or 4x the value of the stolen item (+condictio)
● ⇢ actio vi bonorum raptorum: 4x value of robbed item
● ⇢ actio legis Aquiliae: highest value in nearest year/30 days
● ⇢ actio iniuriarum: max. penalty set by praetor
● ⇢ all except Lex Aquilia: “infamia”
● ⇢ all, in case of denial: conviction in duplum
→ each category had a punitive element: it is not just about compensation, it’s about punishing the wrongdoing
○ Characteristics of Roman delictual actions:
■ In the time of the Glossators and the Commentators, Roman law continued to be applied in its traditional form:
focus on actions, penal character and passive intransmissibility
■ Actions had punitive elements as opposed to a contractual claim
■ “Actio poenalis moritur cum persona” (dt.: Die Strafhandlung erlischt mit der Person) (not passively
transmissible)
■ In cases of multiple wrongdoers, each is liable in full
■ This clearly distinguished delictual actions from contractual actions. In Gaius’s system, there is no place for an
Allgemeiner Teil on Schuldverhältnisse
■ delicts nowadays are not much different from contracts, they all hold very similar obligations!

↓↓↓↓↓↓↓↓↓↓ the aim of tort law shifted from having a penal character to compensation ↓↓↓↓↓↓↓↓↓↓

, Tort system with focus on compensation - natural law school
● A fundamental change: the natural law school in continental Europe (16th and 17th C) as opposed to the Roman system
○ Idea of the natural law school:
■ departed from the traditional divisions of Roman Law
■ → overriding principles derived from “nature”
■ the essence of the obligations ex delicto was the “natural” principle that someone who was at fault had a
responsibility to make good the loss

○ Hugo de Groot (“Grotius”), 1583-1645 De Iure Belli ac Pacis:
■ “Let us now come to what is naturally due in consequence of a wrong. By a wrong we here mean every fault,
whether of commission or omission, which is in conflict with what men ought to do, either generally or by
reason of a special quality. From such a fault, if damage has been caused, an obligation arises naturally,
namely, that it should be made good.”

○ Push for codifications → harmonisation of new tort idea (reason for why the compensation objective is prevalent in
continental Europe)
■ Civil Codes were heavily influenced by the ideas of the natural law school
● The Prussian Allgemeines Landrecht (1794)
● the French Code Civil (1804)
● the Austrian Allgemeines Bürgerliches Gesetzbuch (1811)
■ Many subsequent codifications (e.g. Swiss, Japanese, Italian, Spanish, Belgian and Dutch) were at least
partially inspired on these models

○ Result of Codifications & natural law school
■ Result: European continental systems view “tort” as one reason for the imposition of an obligation (on a par
with contract, unjust enrichment)
■ Public Law = punishes
■ Tort law = compensatory → relationships between private individuals = no punishment
○ change: we see every Western system moving from punitive elements to a system which in a private law context is
more about restitution and compensation and punishment is in the hands of an independent state authority
■ Private law is about compensation, Public law about punishment

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