WEEK 1: Section 302: Fault liability in France
Article 1382 and 1383 are the most general tort provisions ever drafted
They contain subjects such as defamation for which English law has a separate tort
These articles also don’t really have an exclusive domain of application
Liability based on articles 1382, 1383 has a simple structure and focus on compensation
To establish liability. It is sufficient to prove intention or negligence (faute), damage (dammage)
and causation (lien de causalité)
Faute liability, in theory, means negligence liability
However, the duty of care is not implemented here but it is in English law
There are several ways to establish a faute:
- Violation of a statutory rule ( violation d’un devoir légal)
- This implies even if that rule does not consider protection from the damage
suffered
- Breach of an unwritten preexisting duty, in french court they use a standard rule of
- Good family father
- Just and cautious man
- Good professional
- Civil faute
- Commission of a criminal offense causing harm to another person in light of
article 1382
- However, there is one drawback here. That is that the defendant can be found
not guilty by a criminal court and thus no right to compensation
- Abuse of rights
- Only applies to intentional acts (intention de nuire)
There is also a subjective faute that had a relationship with liability to children and mentally
incapacitated
Faute is a social, not moral concept and certainly not subjective!
When someone abuses his right, for example, use your property to cause harm → the
defendant then must pay damages such as monetary reparations
This right is found in the case-law of abuse of liberté. This is inspired by the Declaration of the
right of man and citizen article 4! → negative, in light of the limitation of rights!
Subjective rights are not a good starting point so they merely look at fraud, bad faith or bad
conduct. That's why faute often implies an intentional form of conduct or an act in bad faith
Most of the time, the defensive act is whether the defendant acted other than a ‘reasonable
man’
,Section 402: Fault liability in Germany
The general distinction in Germany is between fault liability and strict liability
Strict liability (Gefährdungshaftung): you are at fault whether intentionally or not (liable for the
risk)
Fault liability (Verschuldens-hafung) includes liability for both intentional and negligent acts
The general rules established in 1888 gave the courts too much freedom
That's why they decided that the German BGB should deviate from the French standard rule
→ causes uncertainty and lack of boundaries
Drafting only specific rules like in England did not seem smart as well
So they drafted 3 general rules with a restricted scope of application
In practice, however, Germany still operates on a general rule instead of on the basis of the old
BGB
There are 5 statutory requirements for liability that can be found in art. 823 and 826:
1. Violation of codified normative rule: restricts field op application on general rule
2. Unlawfulness
3. Intention or negligence
4. Causation
5. Damage
823I: requires the infringement of rights
823II: requires the violation of a statutory rule
826: unethical conduct (intentional infliction of damage contra bonos mores)
These rules mean that you cannot make a claim solely based on intention or negligence
The BGB also contains 3 specific provisions: 824, 825 and 839
A person acts unlawfully by infringing another person's rights
You can be held liable under the principle of fault, whether it was intentional or negligent
With regards to direct infringement, the rules are much clearer than with indirect infringement.
There is the example of one saws down a three and that hits a bystander vs when the three was
rotten and it falls down
They made a safety duty in all areas of law so that when there is a case of an indirect
infringement, they can still see that as a breach of such safety duty and that then determines
unlawfulness
823 protects rights such as health, life, and personal liberty and those are invariably attracted to
the person whereas ‘another right’ can be transferred
,These are the rights to bodily integrity and health, which can also mean damage to your
reputation
Psychological damage is also considered health damage, however, this does require typical
levels of grief and distress
Property rights are also widely interpreted under German law. Property rights can also be
infringed when the property can no longer be used in its intentional manner, even though the
property is not damaged
823 also protects ‘another right’ (Sonstiges Recht). This concept aimed to bring comparable
rights within the scope of the provisions such as rights regarding intellectual property. However,
it does not protect personal or obligational rights such as contracts!
826 holds a person liable if he intentionally causes damages in a way of contra bonos mores
(ethical principles)(Sittenwidrigkeit)
Acting like this means acting in a way contrary to the moral feelings of all good and
right-thinking members of society.
However, it does not serve as a standard for proper conduct in economic competition
To conduct contrary to the legal and economic order, courts often refer to German Basic Law
Article 826 however has a high threshold because it is fairly limited
Court nowadays accept conduct dolus eventualis which means that a person accepts the
consequences of his conduct as being inevitable even if he did not wish for those consequences
to occur → ‘possibility’
The court sometimes also accept a notion of recklessness: if a tortfeasor claims that his conduct
was reckless it can be seen as intention under article 823
Still, the German legal system provides few consequences for pure economic loss and that has
4 important consequences
1. Courts are inclined rather easily to establish infringement in light of article 823
2. They tighten the concept of economic loss to make it easier for victims to get
compensation
3. They developed a doctrine that can be extended to protect 3rd parties in a contract
(Vertrag mit Schutzwirkung für Dritte)
4. Unfair competition Act: protects against economic loss through unfair competition
In 1954 they also created the general personality right for better protection of personal interest
such as privacy, honor and reputation (Allgemeine Persönlichkeitsrecht)
, Section 502: Origins of tort law
3 main sources of liability in England which mainly focus on defendants’ behavior!
1. Contracts
2. Unjust enrichment
3. Torts
There are so many different specific torts in England that they speak of the Law of torts
Its origins can be found in procedural law: The WRIT procedure:
You needed such writ from the Lord Chancellor and that was the only way for you to be able to
file an action in court
‘When there was no writ there was no right’ These all had their own rights and requirements
However, later on, people went directly to the king and ask for relief → beginning of equity
This system then evolved again and the most significant was ‘breach of confidence
This all become way less tensed up when the Common Law Procedure Act came into force in
185
Some torts are now named after cases (Rule in Rylands v Fletcher) and some are still
anonymous and some are even unclear whether it is a tort
The focus is not on the rule but on finding the ‘cause of action’
The classic definition of a tort is: ‘tortious liability arises from the breach of a duty primarily
fixed by law; this duty is towards persons generally and its breach is redressable by an
action for unliquidated damages’ (Winfield)
There are a number of torts however most are of customary importance!
The most important one is obviously the tort of negligence. But the tort of trespassing is also a
significant one alongside battery, false imprisonment et cetera
The tort of nuisance: deals with conflicts between neighbors
Most of these all require intention or negligence → strict liability is rare in English law!
For the tort of trespassing to a person (battery, assault), you need intentional conduct
Can you not prove this → negligence, but for that, you need negligent conduct and a duty of
care (this makes proving liability harder)
Some torts do not require damage and are thus actionable! → trespass to a person, trespass to
goods and land!
Defenses however may play a role here:
- Self defense
- Defense of consent by the patient for example
