Tort law
Risk allocation and balancing of interests
Definition of Tort Law: A body of rules determining the circumstances and conditions under which harm suffered by a victim will be borne by another person, most frequently the perpetrator of the harm.
Initial Principle: The starting point of tort law is that "the loss rests where it falls" unless special circumstances justify shifting the loss to another party.
Categorical Comparisons:
Contract Law vs. Tort Law:
Contract: Obligations are voluntary, based on mutual consent with known parties.
Tort: Obligations arise by chance and operation of law, often involving strangers.
Criminal Law vs. Tort Law:
Crime: Acts against public interest leading to state-led punishment.
Tort: Acts against individuals leading to compensatory damages.
Punitive Damages: Notably used in US law (e.g., Liebeck v. McDonald’s Restaurants (1994)) to deter similar conduct. In Europe, the focus is primarily on compensation.
Interest Balancing: Legal systems must balance the victim's interest in full compensation against the injurer's liability, with different jurisdictions adopting varying approaches to risk allocation.
civil law of torts
French Legal Framework: French law adopts a broad approach without a priori limitations on protected classes.
Art. 1382: "Anyone who, through his act, causes damage to another by his fault shall compensate the damage."
Art. 1383: "Everyone is responsible for damage caused by his act or by his negligence or carelessness."
Liability Conditions: Must involve fault (intentional or negligent), demonstrable damage, and a causal link.
German Legal Framework: Under Section 823 of the BGB (Bürgerliches Gesetzbuch), liability is more restrictive, requiring the infringement of specific protected interests (life, body, health, freedom, or ownership).
Causation Theories:
Theory of Equivalence: In French law, the case of Mrs. Courtellemont demonstrated that a driver could be liable for an HIV infection if the infection resulted from a blood transfusion necessitated by an accident.
Adequacy: German law evaluates whether a causal link is adequate based on the normal sequence of events.
common law of torts
The Tort of Negligence: Defined as a breach of a duty of care owed to another person, resulting in damage.
Foundational Case: Donoghue v. Stevenson (1928) established that manufacturers owe a duty of care to the ultimate consumer, even without a direct contractual relationship.
4 Conditions of Negligence:
i. A duty of care towards a group (including the victim).
ii. Breach of that duty.
iii. Occurrence of damage.
iv. Damage caused by the breach (not too remote).Duty of Care and Foreseeability: Illustrated in Haley v. London Electricity Board, where construction entities were required to account for the proximity of individuals with specific needs, such as the blind.
Causation Mechanisms:
“But for” Test: Establishes whether the harm would have occurred without the defendant's act.
Eggshell Skull Rule: The principle that "the tortfeasor takes the victim as they find them," meaning they are liable for the full extent of injuries even if a victim's pre-existing condition makes them more vulnerable.
private law in transition
Societal Drivers: Contemporary issues such as climate change and social inequality are pushing private law toward a more sustainable and socially conscious framework.
Ecological Norms: New regulations, such as Article 9 of China’s Civil Code, are integrating environmental conservation into private law duties.
New Business Models:
Product as a Service (PaaS): This model shifts focus from sales to service contracts, encouraging sustainability through shared ownership and circular lifecycles.
Legal Implications: The rise of unnamed contracts creates complexity and uncertainty in determining the appropriate contractual or tortious frameworks to apply.