chapter 21

1. liability in tort

over time, the concept of compensating individuals has evolved and expanded, covering material and non-material damages

compensation now includes not only physical injuries but also harm to identity, reputation, social standing and other non-material interests

the concept of unjust damage addresses when an injury or loss should be compensated by someone else

criteria for determining liability

  • causation

  • blameworthy conduct

material losses are easily quantifiable damages such as financial loss or property damage, and non-material losses are harder to quantify

2. sources of tortious liability

tortious liability refers to the legal responsibility that arises from committing a civil wrong

a civil wrong, or tort, is an act or fact that is harmful to an interest protected by law, resulting in harm or detriment to another person

→ there is no preexisting legal relationship required between the two parties

there is a clear distinction between torts and unlawful acts

→ depends on a pre-existing legal relationship

→ the debtor fails to perform the way they’re required

→ the non-performance or breach causes damage to the creditor

3. article 2043 civil code

art 2043 cc defines a civil wrong as “any intentional or negligent fact causing unjust damage to others”

requirements for tortious liability

  • intentional or negligent conduct

  • unjust damage

  • causation

4. strict liability

strict liability is a legal concept where a person is held liable for damages caused by their actions or omissions regardless of intent or negligence

→ the focus is on the fact that it happened

unlike the general principle of tortious liability requiring intentional or negligent conduct for liability to arise, strict liability does not require proof of fault

strict liability is based on specific legal provisions and is applicable only in situations explicitly defined by law

key situations of strict liability

  • liability of parents and guardians

  • liability of employers

  • liability for dangerous activities

  • liability for things in custody

  • liability for building collapse

  • product liability

strict liability is grounded in the idea that certain relationships inherently carry risks, and therefore aims to protect victims

5. injury and damage

damage typically refers to material loss, injury or non-satisfaction of needs or interests

in legal terms, it can have two meanings

  1. injury to an interest: refers to the harmful event itself

  2. prejudice or loss: the consequences of the harmful event

compensation should cover the loss sustained and the loss of profits due to the injury

→ there must be direct and immediate consequences

art 2059 cc specifies that compensation for non-patrimonial damage is only allowed in cases defined by law

6. remedies

tort law aims to restore the injured party to the position they were in before the injury or loss occurred

→ through monetary compensation or restitution to the original position

calculating damage

→ loss sustained and lost profits

→ equitable liquidation of damages

→ contributory negligence: if the injured party contributed to causing the damage, the compensation awarded will be reduced proportionally