Notes on Lectures & Readings – Tort Law
Semester 2 (2023)
Reading = Eric Tjong Tjin Tai, Tort Law: a Comparative Introduction
Lecture 1 – Tort law and Global Private law
Ch. 1 – Introduction to private law terminology
Court procedures are one of the principal instruments by which a state resolves
disputes among citizens. A court procedure involves two parties (legal persons)
• Claimant: starts the procedure, in tort law often the victim
- Starts the procedure by filing a claim
- Statement of claim = document that the claimant files with court that
explains the claim (facts)
• Defendant: opposes the claim by putting forward a defence
Court decides who bears the burden of proof, usually claimant for facts that support
the claim and defendant for facts that support the exceptions the defence invokes →
reverse burden of proof = court grants burden of proof to the other party than the
party who would normally have to proof the fact.
Tort law focuses on the rules that determine under what conditions persons are liable
outside contract. These rules of law are primarily found in two sources
• Legislation / statutory law
• Case law (precedent)
= authoritative in the sense that you are supposed to follow them, even if you do not
agree with them → rules of positive law.
Doctrinal literature helps lawyers to understand law and is therefore influential
Qualification = the lawyer qualifies the facts to see whether a certain concept is
fulfilled or not
• ENG cause of action → when elements are fulfilled, this more or less directly
leads to the action or remedy that was claimed being awarded
• GER Tatbestand: set of facts required to fulfil a specific legal norm → in
private law cases, this only leads to the interim conclusion that the defendant
may be liable, after which it must be determined what remedies apply
(because the claimant has an obligation to provide reparation)
• FRA cause de la demande
Obligation = you have to do (or refrain from doing) something. The most important
sources of obligations are contracts: voluntary agreements between parties whereby
they mutually accept obligations towards each other, and torts: a certain set of events
that gives rise to liability without any basis in contract (other sources of obligations
are torts)
Doctrine = the set of rules that constitute a coherent part of law
Civil law systems refer to tort law as law of delict, law of extra-contractual liability →
use of name tort law is well established in comparative literature
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,Concurrence = can several sources of obligations apply simultaneously? → generally
speaking, yet most systems allow this: claimants can invoke several causes of action
or grounds for a given set of facts (court will usually base its decision on only one of
those grounds, but it is possible that multiple grounds are applicable)
• ENG: explicated it is possible to sue a contract partner on basis of breach of
contract and on basis of a specific tort (or on multiple torts)
• GER: no general provisions, follows from case law that concurrent claims are
in principle allowed
• FRA: does not allow a claim based on contract and tort at the same time
→ specific rule usually prevails over more general rule → not in all situations (tort of
breach of statutory duty and tort of negligence can be applied concurrently)
Ch. 2 – Tort law and the structure of fault liability
Tort law = private law concerned with non-contractual liability. Characteristics
• Tort law has to do with liability outside contract
• Tort law has to do with liability → the tortfeasor has to compensate the person
who suffered damage as a consequence of the wrongful conduct
→ sustained attempt to draw the line between freedom and protection from harm
Central issue of tort law is the balance between autonomy and protection against
harm. Aims of tort law
• Reparation = repairing the consequences of the wrongful act (corrective
justice) → usually takes form of an award of damages
• Prevention = the perspective of having to pay damages can provide an
incentive against harmful behaviour
• Satisfaction or recognition of wrongdoing
Three fundamental elements of tort law (conditions/requirements for liability)
• Fault = wrongful conduct (act or omission) by tortfeasor. Can be further
analysed
- Wrongfulness of the act (objective fault)
- Accountability or culpability of the act (subjective fault)
o Depends on situation and motive → negligence, intention, and
malice (intentional and aimed at causing harm to the victim)
o Certain persons who seem to lack capacity for mature judgement
• Causality = harm is caused by the fault; the injury is a consequence of the
wrongful conduct. Two cumulative conditions
- Factual causation
o c.s.q.n. = the condition without which the event (harm would not
have happened
o but for test
- Leal causation: extent of liability is limited by not awarding compensation to
losses that are too far removed from the act
• Harm = injury to an interest → material and immaterial (specific notions of
harm and damage)
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,Once established that the tortfeasor is liable, the defendant has a duty to repair the
harm, to provide reparation → remedy = specific order by court for reparation. Kinds
of remedies
• Award of damages = defendant has to pay a sum of money to the claimant
• Court order/injunction = order which requires defendant to perform a specific
action or refrain from specific conduct
• Declaration of rights = court only declares that someone is liable, no further
remedy
§3.1 – 3.4 – Fault Liability in French Law (general norm of art. 1240 Cc &
categories of fault)
French law is a codified system, with its 1804 Code civil. The highest French court for
civil law is Cour de cassation (Cass.), which may interpret the code, but its case law
is also used as a strong indication of the state of French law.
As of 1 October 2016 the Code civil has been revised, whereby contract law was
changed significantly → tort law did not substantively change, the provisions were
only renumbered (thus when consulting older literature and case law you will have to
replace old article numbers with current numbers).
Non-contractual liability (delictual liability) is treated as part of the general law of civil
liability → covers both contractual liability and non-contractual liability.
The General Norm of art. 1240 Cc
“Any human that causes damage to another obliges the person by whose fault it
occurred to repair it”
Art. 1241 Cc “Everyone is liable for the damage they have caused not only by
intentional acts, but also by negligent conduct or by imprudence”
Art. 1240 = the basic norm that damage caused by wrongful acts has to be
compensated → interpretation of the articles and words is found in case law, thus by
consulting doctrinal literature
There is no explicit requirement of subjective fault: that is simply presumed to be
present. Faute implies an ‘objective’ standard of wrongful behaviour.
Categories of fault
Unstrict categorization of fault:
• Explicitly written duties
1. Written rules proscribing certain behaviour (statutes as well as other kinds
of rules, resembles tort of breach of statutory duty but it is broader than
statutes)
o Sub-category of infringing another’s right (right which is found in a
statute)
• Unwritten duties
2. Unwritten non-contractual duties, courts have to decide whether such a
duty exists (similar to negligence)
o Sub-category of abuse of right (abuse de droit): covers intentional
actions intended to harm another person
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, → not strict: a breach of an unwritten duty can be influenced by the fact that there is
also a relevant statutory rule
To determine whether there is a fault, courts may thus look at
• Statutes
• Technical and professional standards and similar rules
• Unwritten non-contractual duty is the tortfeasor’s conduct that of a reasonable
person (normally prudent and diligent person) → case law on this varies,
including obligations from reasons of social utility (duty to take precautions, to
take guard of dangers, etc.)
For the area of commercial delicts, courts have worker with a more specific standard:
demands of good faith, loyalty, honesty (comparable to economic torts, see §7.4)
Several kinds of wrongful acts are regulated outside the Cc → Code de la
Consommation (Consumer Act) covers torts towards consumers, rules on defamation
are in law of freedom of the press (§7.5) → those laws explicate when there is fault,
but other elements (e.g. assessment of damages) rely on general rules of Cc
§4.1 – 4.2 – The German law of delict (§ 823 I BGB: protected interests)
The drafters of the BGB when drafting the part on law of delict, attempted to provide
further guidance in two ways (and thereby restrict the power of the courts to develop
the law on their own)
• Not a single general rule, but three general norms which together cover most
of the cases where liability might be in order
• Concept of protected interests to narrow down the scope of those general
rules
→ BGB follows a logical structure wherein rules are placed at the corresponding level
of generality.
BGB is based on a division of the various prohibited acts in Tatbestände. A
Tatbestand (factual ground, set of facts) = a set of facts that give rise to a legal
consequence, in this context to liability → they provide categorization. Differentiation
between main grounds of liability (Grundtatbestände) and specific grounds of liability
(Einzeltatbestände).
§823 I BGB: protected interests
§823 BGB is a general provision consisting of two parts.
§823 I BGB: “Whoever intentionally or negligently unlawfully injures the life, body,
health, freedom, property or some other right of another person is obliged to
compensation to the other for the damage arising out of it.”
→ suggests five requirements for liability
• Verschulden = culpability/fault (‘intentional or negligent’)
• Rechtswidrigkeit = Unlawfulness
• Tatbestand = Injury (infringement) to certain protected rights or interests
• Damage (requires damage not harm because this also explicated the remedy
of an award of damages (§10.1))
• Causal connection between the act and the damage (‘arising from it’)
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