Comparative Tort Law (Lecture Notes)

A comprehensive set of practice flashcards covering core concepts, regimes, cases, and statutes from the lecture notes on Comparative Tort Law.

What is tort law?

The branch of private law that shifts the costs of accidents from the victim to someone else, defined by statutory texts, judicial precedents, and scholarly writings, and applied by courts; it also lives in insurance practices, notions of injury and risk, popular culture, and public debates about harms and justice.

Where does tort law live according to the notes?

In statutory texts, judicial precedents, and scholarly writings, and also in the offices of insurance companies, people’s notions about injury and risk, mass culture, and public debates about harms and justice.

How do Engel & McCann describe tort law in Fault Lines: Tort Law as a Cultural Practice?

As a set of cultural responses to addressing risk and assignments of responsibility, compensation, valuation, and obligation related to injury across various social institutions.

What is meant by the 'Variable Notion of Injury' in historical tort law?

Injuries were understood differently across time: slaves were treated as property damaged rather than injured persons; similar ideas applied to women; who could sue, causation, and restoration procedures varied by time and place.

What are the two broad liability approaches contrasted in Western modern tort law?

Neminem laedere (the French solution: liability whenever damage occurs) and the approach of liability only in certain typical situations (roots in Roman law, later associated with BGB and common law).

What is the Cables case about in Pure Economic Loss?

An excavator cut a public utility cable delivering electricity to a factory, causing a blackout and damage to machinery plus two days of lost production; the factory seeks compensation for these losses.

What is the Star case about in Pure Economic Loss?

A leading basketball team’s pivot is hit by a car and out for three months, causing the team to drop to fourth place; the team sues the car driver.

What is the Spouse case about in Pure Economic Loss?

A husband’s injury leads his wife, who runs a small shop, to close her business to care for him; she sues for loss of earnings during her period of idleness.

What is the Contractor case about in Pure Economic Loss?

Laura hires a company to refurbish her flat; Giovanni is an independent contractor whose poorly done work forces Laura to hire another worker; Laura seeks compensation for economic loss after the company goes bankrupt.

What is the Inheritance case about in Pure Economic Loss?

Grandfather Roberto’s death leaves Giacomo hoping to inherit; due to errors by the notary, Giacomo questions whether he can recover compensation from the notary.

What is the Parking case about in Pure Economic Loss?

David parks a truck across Peter’s garden center entrance; due to inadequate maintenance, the truck cannot be moved for two days, causing lost sales.

What is the Auditor case about in Pure Economic Loss?

Donna’s inaccurate audit of Caterpillar leads Paul to overpay in a takeover; he later discovers the accounts overestimated the value.

What is the Job Reference case about in Pure Economic Loss?

Peter asks David to provide a reference; David mistakenly characterizes Peter as a dishonest former employee, leading Robco Services to hire someone else; Peter sues.

What are the three Regimes for compensating pure economic loss?

Conservative Regimes (Germany, Austria, Poland, Portugal, Sweden, Finland); Liberal Regimes (France, Italy, Belgium, Greece, Spain); Pragmatic Regimes (US, England, Canada, Netherlands).

Which countries are classified as Conservative Regimes?

Germany, Austria, Poland, Portugal, Sweden, Finland.

Which countries are classified as Liberal Regimes?

France, Italy, Belgium, Greece, Spain.

Which countries are classified as Pragmatic Regimes?

United States, England, Canada, the Netherlands.

What is the German Civil Code § 823 about?

Liability for damage caused intentionally or negligently to life, body, health, freedom, property, or another right; or when a statute protecting others is breached.

What does German Civil Code § 278 cover?

The obligor is responsible for fault on the part of his legal representative and of persons he uses to perform the obligation, to the same extent as for his own fault.

What does German Civil Code § 831(1) establish?

A person who uses another to perform a task is liable for damage the other unlawfully inflicts on a third party, unless the principal exercises reasonable care in selecting the person or the damage would have occurred despite reasonable care.

What does German Civil Code § 242 require?

An obligor must perform according to the requirements of good faith, taking customary practice into account.

What does German Civil Code § 253 address?

Money may be demanded for damages not arising from pecuniary loss in specified cases; enhanced compensation may be allowed for injury to body, health, freedom, or sexual self-determination.

What does German Civil Code § 244 cover?

If a person is killed, the liable party must compensate maintenance or emotional distress to survivors, including a special relationship of closeness.

What does French Civil Code Article 1240 (ex-1382) state?

Any act which causes damage to another obliges the person whose fault caused it to provide compensation.

What does French Civil Code Article 1241 (ex-1383) state?

A person is liable for damage caused not only by his own act but also by his negligence or imprudence.

What does French Civil Code Article 1242 cover?

Liability for injuries caused by persons under one’s responsibility or things under one’s guard; extends to masters/employers and guardians.

What is Italian Civil Code Article 2043 about?

Any fraudulent, malicious, or negligent act causing an unjustified injury obliges the wrongdoer to pay damages.

What does Italian Civil Code Article 2051 regulate?

Liability of those in custody or control for damages caused by things under their responsibility.

What does Italian Civil Code Article 2050 address?

Liability for damages from dangerous activities unless all suitable safety measures were taken.

What does Italian Civil Code Article 2059 cover?

Non-patrimonial damages are awarded only in cases provided by law.

What is Donoghue v Stevenson (1932) known for in English law?

Established the general tort of negligence and the duty of care, forming the basis for modern negligence.

Name a key English case establishing negligent misstatements in the duty of care (Hedley Byrne).

Hedley Byrne & Co. v Heller (1964).

Name the English case on negligent interference with contract (Junior Books v Veitchi).

Junior Books v Veitchi (1982) – negligent interference with performance of a contract.

Name the English case on negligent defamation of an employee (Spring).

Spring v Guardian Assurance (1994) – negligent defamation of an employee.

What is White v Jones (1995) about?

Professional negligence in the drawing up of a will.

What does Restatement (Second) of Torts § 766C say about pure economic loss?

One is not liable to another for pecuniary harm not deriving from physical harm to that person if the harm results from (a) causing a third person not to perform a contract, (b) interfering with contract performance, or (c) interfering with obtaining a contractual relation.

What are some exceptions to the general rule of no recovery for pure economic losses in the US Restatement context?

(1) negligent performance of professional services; (2) para-contractual situations (such as construction relationships); (3) particularly foreseeability of the plaintiff’s harm; (4) private nuisance.

What does the Oil Pollution Act § 2702 address?

Liability of the responsible party for vessel or facility discharges to cover removal costs and damages.

What does Dodd-Frank § 933 address in tort liability?

Liability of credit rating agencies for knowingly or recklessly failing to conduct a reasonable investigation of the rated security.

What is a key procedural distinction between Common Law and Civil Law torts?

Common Law features punitive damages, juries, American rule on fees, contingency fees, class actions, mediation/ADR, and adversarial system; Civil Law uses inquisitorial proceedings, no punitive damages, no juries, loser-pays, and limited collective actions.