• The fundamental notion of a private action for a wrong done by one person to another in the absence of a contract between them is called a tort in the common law.

• Regardless of the name used, the tort systems of the West follow the same basic structure:

  • They all recognize intentional torts

  • Negligent torts

  • Cases of high-risk activity that generate strict liability.

• In French law, the three categories of torts are grounded in a few basic provisions

  • Sections 1382 and 1383 require compensation for harm caused intentionally or negligently.

  • Section 1384 imposes liability for high-risk activities under the rubric: damage caused by des choses que l’on a sous sa garde (“the things under one’s control”).

• The German code is slightly better developed.

  • The categories of damage are enumerated in BGB § 823: “life, body, health, freedom, property or other right of another.”

    • Any intentional or negligent violation of one of these interests generates liability if the violation is “unlawful.”

• The French code does not expressly recognize that the invasion of a protected interest might be justified and therefore lawful.

  • In addition, German law recognizes a general principle of liability based on dangerous things even though the principle is not expressed in the BGB itself.

• The main difference between French and German law is that in the former, the category of strict liability lends itself to limitless expansion. By contrast, the German principle of strict liability is, for now, limited to cases stipulated in the statutory law.

• The common law of torts recognizes a series of intentional torts:

  • battery

  • assault

  • false imprisonment

  • invasion of privacy

  • intentional infliction of emotional distress

  • It also recognizes a general principle of liability for causing harm negligently; tort of negligence.

• Fault stands in constant tension with the common law categories of strict liability—of liability without fault.

Negligence

• Every legal system uses a different definition of negligence.

  • French law and all systems that have followed the Code civil rely upon the hypothetical standard behavior of un bon pe`re de famille (good father of the family), as the appropriate guide to behavior—the French analogue to the “reasonable person” in the common law tradition

  • German law, in BGB § 276, defines negligence as failing in “the degree of care appropriate in the particular transaction.”

• For the last half-century or so, American scholars have interpreted the standard of the reasonable person in utilitarian or economic terms.

• The reasonable person weighs the prospective costs and benefits of a course of action and decides accordingly.

• Conduct is reasonable when its benefits outweigh its costs and unreasonable when its costs prevail over the benefits.

  • Unfortunately, there is no way of making this calculation of benefits and costs without assessing the dollar value of human lives. Judges and juries must do the same thing.

• The common law jury is a critical part of the concept of negligence and in large part explains its popularity

• All cases of alleged negligence go to the jury for resolution if “reasonable people might disagree about the issue.”

  • If there is a plausible case of negligence, therefore, laypeople will decide both the question of liability and the extent of damages.

• For most of the twentieth century, juries sympathized with injured parties—particularly when the defendant was a railroad, car manufacturer, or other business corporation.

  • Also, the range of damages included not only medical expenses and lost income but also, most important, pain and suffering and, in many cases, punitive damages.

• It has never been permissible to inform the jury whether the defendant carries insurance to cover the costs of a tort judgment, but many scholars in the generation after the Second World War thought that the tort system should impose liability against enterprises in order to ensure the compensation of victims.

  • In a country without obligatory med- ical insurance, this was a critical factor in the expansion of tort liability.

• It is worth noting that most common law countries have abolished the jury in torts cases, but the United States is committed to the common law jury under the Seventh Amendment to the Constitution.

Strict Liability

• Strict Liability has many sources in common law.

  • First, tort liability on the writ of trespass originally had nothing to do with the fault or intention of the defendant

    • Liability is based on directly causing injury. A voluntary act is required, but fault—in the sense of intention or negligence—is not.

  • General standard of strict liability: This was originally called “abnormally dangerous activity,” and now it is called “ultra-hazardous activity.”

    • The basic idea is that when an activity like blasting in the city streets invariably causes harm, the entrepreneur should be held responsible.

Product Liability

• The leading legal systems of the West have carved out products liability from the basic tort system and subjected this area to a special set of regulations.

• The key concept is a “defect” that causes harm.

• Though the language of negligence and strict liability is used, it is clear that the terms mean something different in this context.

• Products liability is effectively its own branch of law, based partly on contractual warranty and partly on tort principles of negligence and strict liability.

  • The same special identity of the field obviously exists in the European Union, which has issued a special directive in an effort to unify this body of law.

• Although the manufacture and distribution of consumer products crosses the boundaries of states and countries, most torts are purely local affairs.