5.

2 - Tort Law - Fault Liability I

Jaap Hage, ‘Tort Law’ in Introduction to Law

What is Tort Law?

Tort law, also called extra-contractual liability, governs situations where someone suffers damage and
seeks compensation from another party outside of a contractual agreement.

Concepts and Principles in Tort Law

● Damage: Harm or loss suffered from the legal point of view.

● Liability Law: Deals with the conditions under which someone who suffered damage can
claim compensation from someone else.
● Contractual Liability: Liability for damage that occurs within a contractual setting.
● Extra-contractual Liability (Tort Liability): Liability for damage that occurs outside of a
contractual setting.
● Corrective Justice: Involves rectifying a wrong that has occurred. For example, punishing
criminals or compensating for damage caused by one person to another. Liability to
compensate depends on the wrongness of the act. Typically, the liability in this type of justice
is fault liability.
● Distributive Justice: Deals with the distribution of "good" or "bad" over a group of persons.
Damage can be distributed over society so that the costs are not borne by just one person or
to ensure that everyone who contributed to the damage helps compensate the victim.
● Fault Liability: Exists when a person is liable for the damage caused to another because the
former wrongfully caused the damage to the latter.
● Strict Liability: Liability is imposed even when the person who must pay damages was not
at fault. For instance, parents' liability for damage caused by their children or the possessor of
a defective object.

Two Kinds of Justice

Tort law is influenced by two kinds of justice: corrective justice and distributive justice.

Fault Liability

This occurs when someone is liable for damage because they wrongfully caused the damage. Most of
the examples given are examples of fault liability.

Gerhard Wagner, "Comparative Tort Law"

II. Ends and Methods of Tort Law

Two main views on the goals of tort law:

 ● Deterrence (common law): Tort law aims to prevent harm by threatening potential
tortfeasors with liability, encouraging them to take precautions. This view supports remedies
beyond compensatory damages, including exemplary or punitive damages.
● Compensation (civil law): Tort law's primary goal is to compensate victims of wrongful
conduct. Damages are limited to restoring the victim to their pre-harm position, aligning with
the principle of corrective justice.
○ Corrective Justice: A concept of justice focused on rectifying a wrong by restoring
the parties to their original positions before the wrong occurred.

Different approaches within civil law:

● Compensation theory linked to corrective justice: Compensation restores the balance

disrupted by the tortfeasor's wrongful infringement of the victim's rights. Favors fault-based
liability.
● Social justice approach: Emphasizes providing compensation to victims regardless of fault.
Prevalent in France. Supports strict liability and no-fault schemes that offer compensation
directly to victims without regard to fault.
○ Strict Liability: Liability imposed without the need to prove fault (intent or
negligence). The focus is on the act itself and the resulting harm.
○ No-Fault Schemes: Systems (usually insurance-based) that provide compensation to
victims of certain types of harm (e.g., car accidents) without determining fault.

Influence of Economic Analysis of Law:

● Economic analysis of law has strengthened the deterrence rationale. The goal is to minimize
primary accident costs (costs of harm plus costs of precautions). This leads to the Learned
Hand formula, which balances the cost of precautions against the probability and magnitude
of potential harm.
○ Primary Accident Costs: The total economic costs associated with accidents,
including costs of injuries, property damage, and precautions to prevent accidents.
○ Learned Hand Formula: A legal principle that evaluates negligence based on
whether the burden of taking precautions is less than the probability of harm
multiplied by the magnitude of potential loss.
● Economic analysis recognizes that both negligence and strict liability can create incentives
for efficient precaution-taking.

Key Differences:

● Common Law: Tends to emphasize deterrence and individual responsibility.

● Civil Law: Often focuses on victim compensation and may incorporate social justice
concerns.

III. General Clause v Variety of Individual Torts

1. A Fundamental Difference in Style:

● Common Law: Pluralistic and fact-driven, using a variety of individual torts with
precisely defined requirements for liability, like rules. Easier to apply to specific facts, but
can create gaps in coverage.
 ● Civil Law: Unitary, often based on general clauses in civil codes, similar to principles.
Offers broader coverage but requires interpretation and development through case law.

Specific Examples:

● French Civil Code: Articles 1240 and 1241 provide a general clause for liability based on
fault.
○ Article 1240: Any act causing damage to another obliges the person at fault to
compensate.
○ Article 1241: Liability arises not only from intentional acts but also from negligence
and imprudence.
● German Civil Code (BGB): Contains three "small general clauses" in § 823 (1), (2), and §
826 that specify protected interests, offering a compromise between specific torts and a
general clause.

2. Common Developments:

● Both systems have historical roots in Roman law. Roman law featured specific delicts
(wrongs), but the actio legis Aquiliae (a legal action for wrongful harm) gradually expanded.
● Continental European law: The general clause arose from Roman law and natural law
principles, influenced by jurists like Jean Domat.
● English law: The writ of trespass, focused on direct harm, evolved into the action of trespass
on the case, which encompassed indirect harm, eventually leading to the modern tort of
negligence.

3. The Relationship between Criminal Law and Tort Law:

● English law: Generally separates criminal law and tort law. The tort of "breach of statutory
duty" is limited and doesn't directly incorporate criminal statutes. However, victims of crimes
can often sue in tort, particularly under negligence.
● French law: Closely links criminal and tort law. Victims can join civil claims for damages to
criminal prosecutions (action civile). The criminal court's findings on fault can bind the civil
court (le criminel tient le civil en l'état).
○ Action Civile: The process in French law by which a victim can seek damages in a
criminal court as part of the criminal proceedings.
○ Le Criminel Tient Le Civil En L'État: A legal principle in French law meaning that
the criminal case determines the state of the civil case, specifically regarding findings
of fault.
● Spanish law: Article 1092 of the Código Civil explicitly makes criminal law govern civil
remedies when the conduct is criminal, resulting in a dual-track system.

Differences:

● Common law: Emphasizes individual torts and maintains a greater separation between
criminal and tort law.
● Civil law: Favors general clauses and integrates criminal law findings into tort liability more
closely.

Overall Observations:
 ● The distinction between principle-based (civil law) and rule-based (common law) systems in
tort law may be less clear-cut than traditionally thought.
● The common law's numerous intentional torts could be streamlined without significantly
impacting outcomes, making it more similar to the civil law approach.
● The close relationship between criminal law and tort law in civil law jurisdictions,
particularly through procedures like the action civile, effectively adds specificity to the
otherwise broad general clauses.

Edwin Peel & James Goudkamp, Winfield and Jolowicz on Tort

Overlap Between Tort and Contract

● In practice, legal issues arising from the same facts can give rise to claims in both contract
and tort law. For example, a defective product could lead to claims under contract law (Sale
of Goods Act), misrepresentation, negligence, and consumer protection statutes.

Distinguishing Between Tort and Contract

While both contract and tort are fundamental legal classifications found in all legal systems, their
boundaries can be blurred. The extract explores various ways to differentiate them:

1. Source of the Duty

● Traditional View: Tortious duties arise from the law itself, independent of any agreement
between parties. Example: The duty not to assault or slander someone. Contractual duties, on
the other hand, stem from the agreement between parties.
● Exceptions: The extract highlights instances where tortious liability depends on prior consent
or an assumption of responsibility by the defendant. Examples include:
○ Occupiers' Liability: The duty of care an occupier owes to visitors arises from
permitting them to enter the premises. The duty towards trespassers (those who enter
without consent) is different.
○ Gratuitous Advice: The duty of care when giving advice on a serious occasion
depends on the advisor's agreement to provide that advice.
○ Liability to Third Parties: A contractual undertaking by A to B to perform a service
for C's benefit can give rise to tort liability to C.
● Contractual Duties Imposed by Law: Conversely, not all contractual duties depend solely
on the parties' will. The law itself imposes the duty not to breach contracts. Additionally,
implied terms (terms not explicitly stated but considered part of the contract) may be imposed
by law, such as specific obligations in contracts for the sale of goods.

2. Content of the Duty

● General Rule: Tort law defines the content of duties, while contract law allows parties to
determine their obligations through their agreement. For example, the duty owed to a visitor
under the Occupiers' Liability Act 1957 is fixed by law, while the quantity of coal to be
delivered under a contract is determined by the contract itself.
● Exceptions:
○ Statutes can mandate specific obligations in certain contracts, like sale of goods
contracts, limiting the parties' freedom to determine content.
 ○ Implied terms in contracts may be based on legal principles rather than just the
presumed intention of the parties.
○ Some tortious duties are subject to variation by agreement, blurring the lines between
duties fixed by law and those determined by parties.

3. Aims of Contract and Tort

● Contract Law: Primarily focuses on enforcing promises, putting the non-breaching party in
the position they would have been in had the contract been performed. Damages for loss of
expectation are central.
○ Loss of Expectation: Damages awarded to compensate for the benefits the party
expected to receive from the contract had it been performed.
● Tort Law: Aims to prevent or compensate for harms, seeking to restore the injured party
to their pre-tort position. Failure to act is generally not actionable, unlike a contractual
promise.
● Blurred Boundaries:
○ Failure to Confer a Benefit: Failing to receive promised contractual benefits could
be seen as harm. Moreover, tort law recognizes duties to protect others' safety, which
involve conferring a benefit (e.g., occupier's duty to prevent harm to visitors).
○ Tort Damages Reflecting Contract-like Outcomes: Tort damages in some cases
aim to put the claimant in the position they would have been in had the tort not
occurred. This can resemble contract damages in situations involving professional
negligence (e.g., solicitor failing to draft a will, surgeon's negligence worsening a
medical condition).

Common Law vs. Civil Law

● Common Law:
○ Greater emphasis on individual torts with specific elements and requirements.
○ More pronounced separation between tort and contract law, though overlap exists.
○ Focus on individual responsibility and fault, though strict liability regimes are
present.
● Civil Law:
○ Preference for general clauses defining tort liability broadly, supplemented by
specific statutes and case law development.
○ Closer integration of criminal law principles and findings into tort law.
○ May incorporate broader social aims, such as social justice considerations, alongside
corrective justice.

Here are detailed notes on the extract from Eva Steiner, French Law a Comparative Introduction
(2nd edn, Oxford University Press 2018) pp. 249-262 & 265-268, including definitions of key terms,
differences between common law and civil law jurisdictions regarding contract and tort law, and
relevant provisions:

General Approach to Tort Law in France

 ● Terminology: In France, the area of law covering torts is typically referred to as "The Law
of Civil Liability" (responsabilité civile) or "The Law of Delictual Liability"
(responsabilité délictuelle).
● Generalized Approach Based on Fault: French law, unlike English law, does not use the
term "tort" or rely on a list of specific torts. It favors a broad approach to civil liability
rooted in the concept of "fault" (faute), derived from the Latin culpa.
● General Clauses: Articles 1240 and 1241 of the French Civil Code articulate the general
principle of fault liability:
○ Article 1240: "Any act whatever of man, which causes damage to another, obliges
the one by whose fault it occurred, to compensate it."
○ Article 1241: "Everyone is liable for the damage he/she causes not only by his/her
[intentional] act, but also by his/her negligent conduct or by his/her imprudence."
● Advantages of the French Approach: This broad approach avoids gaps in the law that
might leave potential claimants without remedies. It allows judges to adapt the law to new
situations and social developments.
● Comparison with Common Law (e.g., English Law): Common law systems, like English
law, traditionally use a categorization approach with specific torts. This provides clarity and
limits judicial discretion, but it can lead to gaps in coverage.
● Specific Regimes of Strict Liability: Despite its emphasis on fault, French law also includes
specific regimes of strict liability where fault does not need to be proven. Examples include
liability for:
○ Things in one's keeping (Article 1242, paragraph 1)
○ Actions of others (e.g., parents for children, employers for employees) (Article 1242,
paragraphs 4 and 5)
○ Animals (Article 1243)
○ Defective buildings (Article 1244)

Development of Tort Law in France

● Historical Shift from Roman Law: French law moved away from the Roman law of delicts,
which, like English law, used a list of specific wrongs.
● Influence of Natural Law and Religious Doctrine: The concept of faute in French law
draws heavily on natural law and religious ideas of individual responsibility.
● Impact of Industrialization: The rise of industry in the late 19th century led to a shift
towards risk-based liability, as seen in the introduction of strict liability regimes for industrial
accidents.
● Growth of Social Security and Insurance: These systems helped spread the cost of
compensation, moving away from a purely individual responsibility model.
● Social Solidarity and Guaranty Funds: The 20th century saw an emphasis on social
solidarity, leading to the creation of guaranty funds to compensate victims even when the
responsible party is unknown or insolvent. Examples include:
○ Fonds de Garantie Automobile (FGA) for road traffic accidents
○ Funds for victims of crime, terrorism, and certain medical disasters
● Large-Scale Catastrophes: Modern events like oil spills and industrial disasters have
challenged traditional tort law, leading to calls for broader principles of environmental
liability.

The Concept of Faute

 ● Lack of Definition in the Civil Code: The French Civil Code does not provide a specific
definition of faute, leaving room for judicial interpretation and development through case
law.
● Domat's Definition: The 17th-century jurist Domat's definition, which influenced the Civil
Code, describes faute as:
○ "Any loss and damage whatsoever arising through the act of a person, whether being
an act of negligence, of recklessness [légèreté], an absence of knowledge of what
ought to be known, or any similar fault, whatever their importance, must give rise to
compensation. For this constitutes a tort [c'est un tort qu'il a fait], even though there
was no intention to harm."
● Modern Understanding: Faute generally encompasses:
○ Deliberate acts (intentional wrongdoing)
○ Reckless or negligent conduct (failure to act with reasonable care)

Fault and Duty of Care

● General Duty of Good Conduct: French courts have developed the idea that faute involves
a breach of a general duty of good conduct, informed by legal norms and social standards.
This duty can arise even without a specific statute or prior relationship between the parties.
● Proposed Definition in the 2017 Bill: The 2017 Bill (new Article 1242) proposes defining
faute as "a violation of a legislative requirement or a failure in the general duty of care and
diligence."
● Comparison with the Common Law Duty of Care: The French concept shares similarities
with the common law duty of care but applies more broadly, encompassing a wider range of
situations.
● Positive Acts and Omissions: Faute can result from:
○ Positive acts: Actively doing something that causes harm (e.g., hitting a pedestrian
with a car)
○ Omissions: Failing to act when there is a duty to do so (e.g., failing to rescue
someone in danger)
● Liability for Omissions: French courts have recognized specific obligations to act in certain
situations, making omissions actionable. Examples include:
○ Duty to Rescue: A general duty to rescue those in danger
○ Employer's Duty to Ensure Workplace Safety
● Malicious Abstention: An intentional or malicious failure to act, even without a pre-existing
legal duty, can constitute faute.

Determination of Fault

Two Key Questions:

1. Standard of Care: Fault is determined objectively based on the "reasonable person"

standard. The defendant's conduct is compared to what a reasonable person would have done
in the same circumstances. This standard is now referred to as acting raisonnablement
(reasonably) in the Civil Code.
2. Degree of Fault: While any degree of fault can theoretically give rise to liability, French
courts often consider factors such as repetitiveness and proportionality. Examples from
case law include:
 ○ SA Automobiles Citroën v SA Canal Plus: Repeated, outrageous comments on a
satirical TV show were considered faute despite a lack of malicious intent.
○ CNMTR v Société JT International GmbH: Using a humorous image of a smoking
camel was not considered faute because it was proportionate to the legitimate aim of
an anti-smoking campaign.
○ Meccano case: Using the trademark "Meccano" metaphorically was not deemed
faute because there was no indication that it would dilute the brand.

Fault: A Concept in Decline?

● Shift Towards Compensation: The rise of risk theory and the focus on compensation have
led to arguments that the concept of faute is weakening in French law.
● Faute Objective: Some scholars argue that fault is becoming more objective, focusing less on
the defendant's subjective state of mind and more on the objective harmful consequences of
their actions.
● Liability Without Fault: Cases where fault is not required or a lack of fault is not a defense
further challenge the traditional fault-based system. Examples include liability for:
○ Young Children: Despite lacking the capacity for discernment, young children can
be held liable for their actions, with their parents bearing responsibility.
○ Mentally Ill Persons: Article 414-3 of the Civil Code allows holding mentally ill
persons liable for their actions.

Recoverable Loss in French Law

● Principle of Full Compensation: French law aims to fully compensate victims for their
losses (réparation intégrale du préjudice), restoring them to their pre-tort position.
● No Duty to Mitigate (Traditionally): Unlike some common law jurisdictions, French law
has traditionally not recognized a duty for victims to mitigate their losses. The 2017 Bill
proposes introducing a limited duty to mitigate in some cases but not for physical injuries.
● Categories of Damages: French law recognizes three main categories of damages:
○ Préjudice matériel (Material Loss):
■ Damnum emergens: Actual monetary losses, such as property damage and
expenses related to injury.
■ Lucrum cessans: Loss of earnings and profits (e.g., lost business
opportunities).
○ Préjudice moral (Emotional Harm):
■ Compensation for pain, suffering, and emotional distress. This includes
distress from the death of a loved one and even the death of a pet.
○ Préjudice corporel (Physical Injury):
■ Compensation for physical pain, disability, and loss of amenities of life.
■ Uses detailed tables and nomenclature to assess damages.
● Pure Economic Loss: Recoverable in France as long as there is a causal link to the
defendant's wrongful conduct. Courts may consider foreseeability and remoteness in
determining causation.

Causation
 ● General Requirement: The plaintiff must demonstrate a causal link between the defendant's
act and the harm suffered.
● Challenges in Proving Causation: Strict proof is often difficult, leading to a variety of
approaches and a focus on achieving a just result.
● Two Main Tests in French Law:
○ Sine Qua Non Test (Equivalence Theory): Every event that contributes to the harm
is considered a cause, unless the harm would not have occurred without that event.
Used when multiple parties contribute to a single harmful act. Example: A hunting
accident involving multiple hunters.
○ Adequacy Test: Focuses on the most probable and determining cause of the harm.
Used when one event leads to multiple consequences. Example: A chain of events
leading to an AIDS-related death.
● Application Varies by Case: Courts have applied these tests inconsistently, often prioritizing
practical considerations and a just outcome.

Differences Between Jurisdictions: Key Points

French Law vs Common Law (e.g., English Law)

● General Clauses vs Specific Torts: French law's use of general clauses provides flexibility
but can lead to less predictability compared to the specific torts of common law.
● Fault: While both systems emphasize fault, the French concept of faute applies more
broadly. The common law duty of care is more carefully defined and limited.
● Strict Liability: Both systems have strict liability regimes, but France has historically been
more willing to expand strict liability, particularly in areas like product liability.
● Pure Economic Loss: More readily recoverable in France, while common law systems
impose stricter limits based on foreseeability and proximity.
● Causation: The interplay of the sine qua non and adequacy tests in France can make
causation analysis complex, while common law systems use various tests, often focused on
foreseeability and remoteness.
● Damages: French law's emphasis on full compensation may lead to higher damage awards
compared to some common law jurisdictions. The absence of a duty to mitigate in France
(traditionally) is another difference.

Tort vs Contract Law

Distinctions in French Law:

● Source of Obligation: Tort law imposes obligations based on general principles of conduct
and social norms, while contract law derives obligations from the agreement between parties.
● Aim: Tort law seeks to compensate for harm and deter wrongful conduct, while contract law
aims to enforce promises and facilitate voluntary exchanges.
● Fault: Generally central to tort liability (though exceptions exist), while fault is less
important in contract law, which focuses on fulfilling agreed-upon obligations.
● Damages: Tort law aims for full compensation to restore the pre-tort position, while contract
law focuses on protecting expectations and placing the non-breaching party in the position
they would have been in had the contract been performed.
 ● Overlap: French law recognizes that the same facts can give rise to claims in both tort and
contract, though the rule of non-cumul prevents double recovery.

Here are the articles/provisions and cases mentioned in the sources:

France
● Art. 1240 CC (old 1382)
● Art. 1241 CC (old 1383)
● Art. 1242 CC
● Art. 1243 CC
● Art. 1244 CC
● Art. 1245 CC et seq.
● Art. 1285 CC - 1288 CC

England
● Tort of Negligence
● Tort of Trespass
● Sale of Goods Act 1979
● Consumer Protection Act 1987
● Occupiers’ Liability Act 1957

Cases:
● Branly (Cass. 1, 27 February 1951, D. 1951, 329)
● CNMTR v Société JT International GmbH et autre (2006)
● Derguini (1984)
● Donoghue v Stevenson \ AC 562
● Fairchild v Glenhaven Funeral Services Ltd \ UKHL 22
● La Haute Marne Libérée (Civ. 2, 17 July 1953, D. 1954, 533)
● Lemaire (1984)
● Lunus (Cass. Civ. 1, 16 January 1962, D. 1962, 199)
● Meccano case (Cass. Com. 1 March 2017)
● Mlle X … v Société Transport Agglomération Elbeuvienne (Cass. Civ. 2, 22 February
1995, JCP 1995, I, 3853)
● SA Automobiles Citroën v SA Canal Plus (Cass. civ. 2, 2 April 1997, D. 1997, 411)
● Trichard (Cass. Civ. 2, 18 December 1964, D. 1965, 191)
● Veuve Gaudras v Dangereux (Ch. Mixte, 27 February 1970, D. 1970, 201)

Germany
● § 823 BGB (1), (2)
● § 826 BGB
● § 830 BGB (1)