Law of Torts/Delict, General and Lex Aquilia
by Nils Jansen
1. Functions of the law of torts/delict
The law of torts or, in civilian terminology, the law of delict determines the preconditions of non-contractual liability for injury and loss. In a specific, narrow sense, both the concepts of delict and tort designate unlawful behaviour (unerlaubte Handlungen), ie the traditional instances of liability for wrongs or fault. Often, however, these concepts are understood in a wider, more general sense, embracing all cases of extra-contractual liability. They then also include instances of strict liability such as liability for damage caused by things (faits des choses). Historically, these various instances of strict liability complemented the traditional liability for wrongs in the different national systems.
‘Delict’ is a specifically civilian concept; in the common law, the functional equivalents are denoted with the concepts ‘law of torts’ or ‘tort law’ (from latin or legal French tortus, broken). While civilian systems have long been based on—more or less far-reaching—general provisions of liability for fault (Art 1382 Code civil; §§ 823(1), (2), 826 Bürgerliches Gesetzbuch (BGB)), the common law of torts originally consisted of a large number of individual torts, such as trespass, negligence, battery, assault, false imprisonment, nuisance, or defamation. Those torts were seen as independent of one another. On the one hand, no intellectual or systematic bond was constructed between different torts, and on the other hand no categorical distinction was seen between strict and fault-based torts. During the 20th century, however, this difference between the common law and the civilian legal systems has been disappearing. In modern common law, too, a general liability for negligence has been recognized (Donoghue v Stevenson  AC 562), and since the 19th century doctrinal writers have been increasingly presenting the law of torts as an intellectually integrated system of related rules (tort law).
The modern law of torts is the private-law expression of the individual responsibility for damage and injury resulting from a person’s activities. By imposing extra-contractual liability, the law makes a defendant responsible for damage or injury caused by him. Seen from an instrumental view, especially from the perspective of a law and economics analysis (economic analysis of European private law), the law of torts thus becomes a means of preventing accidents. The legal imposition of liability sets incentives for efficiently determining precautionary measures or avoiding inefficiently risky activities. At the same time, the law of torts is often assigned a ‘compensation function’; it is seen as a means of compensating the victims of accidents. However, in this function, it is only a small element in a rather complex system of public-law and private-law instruments, such as social security and first- and second-party insurance (liability insurance). Here, the relevance of tort law is in decline. Its practical function has been reduced to determining the recourse between such collective institutions; yet, this recourse is often regulated by general inter-insurance agreements.
2. General developments
During the 20th century, the institutions of extra-contractual liability underwent fundamental functional and doctrinal changes, those institutions having proved increasingly dysfunctional and normatively inappropriate during the 19th century. Those changes mostly pertained to three main aspects. First, civil responsibility has been significantly extended to embrace also the indirect consequences of actions and omissions. Secondly, the natural law fault principle, according to which there can be no liability without fault, has lost its fundamental status; fault is today seen as only one among many other possible factors justifying the imposition of liability. Thirdly, private liability has been integrated into complex collective social security and insurance systems; thereby, those systems supersede or even replace the traditional liability of private individuals.
All continental general provisions of delictual liability for fault can be traced back to the lex Aquilia (287/286 BC), a Roman plebiscite concerning liability for damage done to things. The modern delictual terminology, including ‘damage’ (damnum), ‘unlawfulness’ (iniuria) and ‘fault/negligence’ (culpa) were framed in the context of the discussions relating to this piece of legislation. Yet, the Roman law of delict neither functionally nor conceptually related to a fair compensation of losses; rather, it was meant to provide for an appropriate sanction for a wrong suffered by the victim; the same was true for the old common law of torts. Thus, already in Roman law this delictual system of concepts had proven to be not fully adequate for the compensation of losses. Nevertheless, after the reception of Roman law, civilian lawyers could also apply the Roman actions for the purpose of compensation because the Roman concept of culpa levissima (slightest fault) made it possible for them to hold defendants responsible for damage even absent a genuine wrong or unlawful behaviour. However, at the beginning of the 19th century a narrower natural conception of fault (natural law) became dominant, also in the common law. According to this understanding, fault expressed moral blame for committing an action which was prohibited by the law (unerlaubte Handlung, Christian Wolff). As a consequence of this new approach, the law could no longer distribute the risks of accidents in an appropriate way. The new industrial risks added to this impression. True, the world had not really become more dangerous as a result of these risks: coaches continued to kill much more human life than trains. But fire-sparking engines looked much more dangerous than horses, and single accidents could now cause damage of unknown extent if they destroyed not only the immediate neighbourhood but rather a whole area. In addition, the new industrial risks typically affected the workmen in industrial plants or on the trains and thus became a serious social problem.
Most legal systems reacted to those problems by emphasizing the compensational function of tort law and by complementing the traditional instances of delictual liability with significantly diverging institutes of strict liability, such as the German liability for ultra-hazardous activities, which was introduced by the Prussian legislature in 1838, or the French gardien-liability for faits des choses, which was imposed in 1896/1930 by the judiciary. At the same time, liability insurance was introduced, and workplace accidents were directly regulated by specific insurance for workplace accidents (first in 1884 in Germany) and later also by social insurance and other labour law instruments. From the 1960s onwards, these developments resulted in a fundamental discussion concerning the functions and efficiency of private liability, which was increasingly accused of being inefficient, expensive and unfair. Indeed, private litigation often causes rather high costs, and private liability cannot cover all risks of accidents as it is limited to damages for which a defendant can be said to be responsible. At the same time, most recourse solutions are perceived as being unreasonably costly, and the preventive effects of private liability are doubtful. These effects are only of secondary relevance where the liability is insured or where the costs of accidents are normally borne by a collective no fault system. In the case of injury to persons, this is nearly always the case.
Nevertheless, European legislatures did not fully abolish private liability, but rather partially supplemented it with collective solutions. It is only in New Zealand where the law of torts has been largely replaced with a social insurance solution. As a result of these developments the law of torts has lost a good deal of its practical significance, but it has remained a central element of the European legal systems. This is not for functional reasons, but rather because private liability must be seen as an indispensable element of western public morality. It is an expression of what it means to be a human person, namely to bear the responsibility for the consequences of one’s actions.
Every definition of extra-contractual liability includes: first, on the victim’s side, some injury, harm, loss or damage which is recognized by the law as worthy of compensation; secondly, on the defendant’s side, a specific factor justifying the attribution of the victim’s loss to the defendant’s action; and finally, a causal link (causation) between the risk or behaviour for which the defendant is responsible and the loss in question. However, it may be impossible or difficult to prove such causal relation, because the relevant facts are connected only in an abstract or statistically relevant way, one example being different producers of an identical product which caused the damage in question. In such cases, there has generally been a tendency, during the last years, of reducing the requirements concerning the proof of causation and of making the defendant only partially liable. This can be seen very clearly in the recent proposals for unifying ‘restatements’ of European tort law which have been presented, independently of one another, by the European Group on Tort Law (Art 3:102-3:106 PETL) and by the Study Group on a European Civil Code (Art 3:206 (1), 4:103 PEL Liab Dam). A highly innovative solution is a market share liability, where possible defendants are only liable according to their market share with regard to the damaging substance or product. However, in such a case, the group of producers is made responsible for the damage or injury in question as a collective; a market share liability cannot be seen as an expression of genuinely individual responsibility. Nevertheless, American and also some European courts have opted for such a solution, and the European Group on Tort Law has also proposed such a rule: Art 3:103, 3:105 PETL.
Besides the question of causation, the central structural decisions of every system of extra-contractual liability concern the description of the protected interests, on the one hand, and the relation of the traditional liability for fault to instances of strict liability, on the other hand. While the first decision relates to potential victims and their interests, the second decision concerns the extent of individual responsibility of potential tortfeasors. Both questions have been discussed intensively during the 19th and 20th centuries, and the relevant decisions may be understood as expressions of fundamental societal policies. Thus, French law strongly favours the victims of accidents and, thus, apparently emphasizes the political ideal of fraternité in the context of private law as well. No other legal system, outside of France, offers such a far-reaching regime of strict liability, and nowhere are judges as generous with regard to compensating purely pecuniary losses. Contrarily, the approach of the English law of torts is much more restrictive because it proceeds from the assumption that free citizens are normally themselves responsible for their wealth and luck.
Despite such differences with regard to fundamental policies, there are significant structural parallels between the different European legal systems. On the one hand, all legal systems treat different types of loss differently. Normally, a claim for damages presupposes a specific result: damage to property in the widest sense, including intellectual property, or injury to a person, including the body and the personality, or the infringement of another comparable interest. In contrast, other types of loss, especially purely pecuniary loss, cannot normally be recovered. Nevertheless, there are differences, both with regard to the doctrinal approach and with regard to the substance of the rules. Not all legal systems explicitly differentiate between different types of loss in this way, in particular the French law does not make such a distinction, as Art 1382 Code civil appears also to include purely pecuniary loss. Nevertheless, French judges, too, are often reluctant to compensate such loss and deny claims on the basis of considerations concerning the loss, fault or causation. Conversely, under specific circumstances purely pecuniary loss will also be compensated in legal systems with a more restrictive basic approach to the law of torts. This is especially true in cases where the loss has been inflicted intentionally and contrary to basic principles of public morality, or where the defendant had assumed responsibility for the victim’s financial interests (culpa in contrahendo).
In view of these findings, the European Group on Tort Law and the Study Group on a European Civil Code have suggested compromise solutions. On the one hand, they refrain from drawing up a conclusive list of protected interests. Yet, on the other hand, they emphasize the requirement of a qualified loss or the infringement of a legally protected interest, and they lay down, in this context, lists of relevant factors which have to be considered in complex weighing processes (Art 2:101 PEL Liab Dam; Art 2:101 f PETL). As a result, however, those proposals leave important questions open, such as the dividing line between non-contractual liability and contract law (contract) and they misleadingly suggest that decisions about extra-contractual liability always require a consideration of all interests of the parties. Yet, this is not correct with regard to the interests protected by tort law; many aspects, for instance, which may be important for determining the standard of care, are irrelevant with regard to the interests protected.
The second basic question of extra-contractual liability concerns the relation of the traditional law of delict or tort law to new instances of strict liability. Here, most European legal systems have adopted a ‘two-track approach’, according to which the instances of strict liability stand intellectually unconnected besides the traditional liability for fault. Normally, strict liability is therefore regarded as exceptional and in need of a specific justification. However, this state of the law is increasingly seen as unsatisfactory, as the idea of a ‘two-track approach’ is intellectually and normatively misleading. It is not possible to draw a clear line between strict liability and liability for fault; rather, there is a sliding scale between instances of more or less strict liability. From a functional perspective and also in their effects, strict liability and traditional liability for fault are largely equivalent. In addition, all these liabilities are normally based on the same or similar normative considerations and policies. They are an expression of individual responsibility; at the same time negligence is often not based on genuine wrongful behaviour but rather on specifically compensation-related principles of corrective justice, such as the idea that businesses should internalize the risks of their activities, or the better insurability of risks of accidents. Apparently, the overarching normative foundation of extra-contractual liability is not the Roman concept of liability for wrongful behaviour, but rather the maxim of a comprehensive protection of basic legal rights and specific interests. Since the 16th century, this originally natural law idea (natural law) has exerted significant influence on the development of the European legal systems.
While the Study Group on a European Civil Code holds on to the traditional structural model of extra-contractual liability irrespective of these findings, the European Group on Tort Law has tried to overcome the ‘two-track approach’. The Group aims at introducing a sliding scale between strict liability and fault, and the proposal is based on the assumption that the infringement of a legally protected interest or right is in itself an independent reason for imposing liability. Nevertheless, the Group’s Principles of European Tort Law are determined by the traditional categories of delictual liability. Thus they rest on the idea of unlawfulness being the basic and overarching reason for all liability, even if the term of unlawfulness has been avoided as far as possible. Therefore, the only doctrinal means for the PETL to formulate the sliding scale between fault and strict liability has been a reversal of the burden of proof of fault in cases of extra-hazardous activities and for business enterprises (Art 4:201 f PETL). Thus, the substantial question of the extent of liability depends, in an unsatisfactory manner, on the vagaries of what can be proven. Conceptually, strict liability remains rigidly separated from negligence, and it is formulated by means of narrow, special rules. Conversely, elements of strict liability did not find a doctrinal place in negligence liability. Thus, the PETL may be taken to provide a fair picture of the present state of European tort law. Although there is general agreement that it is time to overcome the traditional ‘two-track approach’, it is unclear by which means this aim can be achieved in a doctrinally and conceptually satisfactory way.
4. Legal unification
Comparative lawyers and legal unification projects have long focused on contract law, thus relegating tort law to a secondary place; this state of affairs changed only with the work of Christian von Bar. Yet, legal unification confronts extraordinary problems in the field of extra-contractual liability. Doctrinal and conceptual commonalities can only be found in the narrow field of the traditional liability for fault (law of delict), but those common elements have proved ultimately inadequate for a modern law of extra-contractual liability. Both the Study Group on a European Civil Code and the European Group on Tort Law have therefore chosen highly innovative approaches, formulating their Principles in the form of ‘flexible systems’ (bewegliches System) as devised by the Austrian lawyer Walter Wilburg. However, these groups did not analyse in more detail whether and in which respects the European law of extra-contractual liability is in fact ‘flexible’, ie to which extent it rests on principles and policies that need to be weighed against each other when being applied. This indicates clearly that there is no common understanding with regard to the political, philosophical and doctrinal foundations of extra-contractual liability; hence such proposals are heavily disputed in current discussions. It is therefore far too early for taking more specific steps towards unifying the law. Fortunately, there is only exceptionally a real economic necessity for such a step. The European Union, too, has therefore adopted only rather specific, narrow measures. It has unified—besides product liability (Dir 85/374) and environmental liability (Dir 2004/35)—only the liability of the Member States for the infringement of European precepts by these Member States (ECJ Joined Cases C-6/90 and C-9/90 – Francovich  ECR I-5357) and the extra-contractual liability of the European Union itself.
Guido Calabresi, The Costs of Accidents (1970); Reinhard Zimmermann, The Law of Obligations (1990) 902–1142; Christian von Bar, The Common European Law of Torts (1998/ 2000); David J Ibbetson, A Historical Introduction to the Law of Obligations (1999) 39–70, 95–125, 155–201; Tony Honoré, Responsibility and Fault (1999); Nils Jansen, Die Struktur des Haftungsrechts. Geschichte, Theorie und Dogmatik außervertraglicher Ansprüche auf Schadensersatz (2003); Reinhard Zimmermann (ed), Grundstrukturen des Europäischen Deliktsrechts (2003); Wolfgang Wurmnest, Grundzüge eines europäischen Haftungsrechts (2003); Reinhard Zimmermann, ‘Principles of European Contract Law and Principles of European Tort Law: Comparison and Points of Contact’ in Helmut Koziol and Barbara Steininger (eds), European Tort Law 2003 (2004) 2; Nils Jansen, ‘Duties and Rights in Negligence: A Comparative and Historical Perspective on the European Law of Extracontractual Liability’ (2004) 24 Oxford J Legal Stud 443; Nils Jansen, ‘Principles of European Tort Law? Grundwertungen und Systembildung im europäischen Haftungsrecht’ (2006) 70 RabelsZ 732; Cees van Dam, European Tort Law (2006).