Tort Law - General Overview and Comparative Analysis.

May 9

I. WHAT IS TORT LAW

Tort law governs situations which concern a person who causes harm to another and must compensate for the harm. However, tort law shares a universal principle across different legal systems: an individual must act in a way that does not cause unjust damage to another person, and if they do that, they must repair the damage. Liability arises when damage is caused through fault, or in some cases without fault. The definition of “harm” and “fault” also differs from country to country. In civil law systems, like French and German law, they rely on codified provisions, while common law systems, like the United States and the United Kingdom, rely on specific previous cases connected with torts. Furthermore, we have Chinese law, which combines both approaches. Having that in mind, this article is going to compare how tort principles are applied in every country, and what elements are taken under consideration to interpret certain conduct as a tort.

II. THE FRENCH SYSTEM – PRINCIPLE OF LIABILITY

The French tort system is based on the principle of “respecting your neighbor”, which expresses the idea that avoiding causing harm to others is a duty imposed on individuals. In Article 1240 of the French Civil Code, any act that causes harm obliges the person at fault to compensate for it. Article 1241 adds that liability also arises from negligence or imprudence. French tort law revolves around these three main principles:

A) Liability for one’s own thing
B) Strict liability for things
C) Strict liability for acts of other persons

The first principle (liability for one’s own thing) is based on the concept of fault, which plays a central role in the French Civil Code. In order to prove liability, it is necessary to prove intention or negligence, the existence of damage, and causation.

Formula explanation:
Fault = intention/negligence + damage + causation

In French tort law, fault is interpreted broadly, and it does not occur only when there is a breach of a statutory rule, but also of unwritten pre-existing agreements, criminal offences, and abuse of rights. It applies equally to acts and omissions, meaning that when there is a failure of performance, it can potentially constitute fault because there is a duty to perform.

Strict liability (it applies in situations involving dangerous activities or defective products) is also recognized for people in French tort law. This means that individuals can be held liable for damage caused by those under their authority or supervision. This principle developed after the Blieck case of 1991. This case extended strict liability beyond traditional categories: parents are now liable for the actions of their children, employers for their employees, and teachers for their students. In simple words, the Blieck case extended liability to persons, not only to things.

III. THE ITALIAN SYSTEM

In the Italian system, tort law is understood through the broader concept of civil liability. The main functions of civil liability are compensation, prevention, and sanction. The compensatory function has one goal: to compensate the victim. If someone suffers harm, they should receive money to make up for the loss. The idea is to put the victim in a position as close as possible to the position they were in before the damage. The preventive function is about making civil liability prevent harm from happening. For example, knowing that you have to pay damages makes people act more carefully, therefore reducing the risk of harm in the future. The punitive function, on the other hand, aims to make civil law not only about compensation, but also about punishing wrongful behavior; the person who committed the tort shall suffer a financial consequence. The general rule of civil liability is established in the Italian Civil Code, and more particularly in Article 2043 - “an unjust damage must be compensated”.

Liability requires both subjective and objective elements. The subjective elements are intent or fault, while the objective element is the existence of harm and the connection between the act and the damage. Furthermore, Article 1176 of the Italian Civil Code sets the standard for evaluating a person’s behavior. It is judged based on an objective standard examining their reasoning, rather than the individual’s characteristics. The objective elements of an unlawful act include several features - the capacity to form intent, the existence of harm, and the connection (nexus) between the act and the harm.

Additionally, Italian tort law moved to the so-called “risk principle”. Originally, liability was based on fault. In contemporary times, fault or intention is not always required in order for an act to be considered unlawful. Instead, the focus shifted to the rational distribution of risk within society. For instance, an individual who creates a risk may be held liable even without fault.

Regarding the wrongful nature of the act, wrongfulness is expressed through the concepts of “non iure” and “contra ius”:

a) Non iure - It must occur without legal justification
b) Contra ius - It must violate a legally protected interest

Italian law also protects a wide range of interests, particularly personal rights, for example the right to health and physical integrity. This developed due to the “biological harm doctrine”, which emerged during the 1970s. This doctrine recognises that damage to a person’s physical or mental health should be compensated.

Property rights are also protected. This includes possession and ownership. In the Italian Civil Code, and more particularly Article 844, the conflict between neighboring properties is governed through three criteria:

1. Normal tolerability – “what can you reasonably handle?”
Explanation: You have to tolerate that the neighbour’s kid plays in his backyard; however, you do not have to tolerate a rock band practicing in their garage at 3 a.m. If the nuisance is “normal”, you must accept it. If it is not, then it is not “tolerable”.

2. The balancing of interests
Explanation: The law looks at who would be harmed more if the other person wins. For instance, a cricket club plays on a field next to a house. The homeowner wants peace, while the community wants to play sports. In that case, the balance must be made by the court. It might allow the cricket club to continue (public interest), but order the club to pay for a higher fence to stop the balls from breaking the house windows (protecting the individual).

3. Priority of first use
Explanation: The person who used or owned it first usually wins when ownership is disputed.

The Italian courts have increased the types of damages people can claim. For instance, the Superga case involved the football team Torino FC, whose members died in 1949 when their plane crashed near the Basilica of Superga in Turin. The accident not only caused physical death, but also economic and organizational harm to the football club itself. Before the incident, Italian law mainly allowed compensation only when a person’s personal rights were violated, such as life, health, property, and liberty. However, in the Superga case, the courts established the fact that a legal entity can suffer harm when its “legal expectations” are destroyed. Legal expectations mean an interest or advantage that a person could reasonably expect to continue in the future, even if it is not a full absolute right. For example, the football club expected economic benefits from future team matches, and the crash destroyed these expectations. Therefore, the case expanded the understanding of civil liability and showed that tort law not only protects property rights, but also legitimate economic interests and expectations. In other words, compensation was allowed for the destruction of a legal expectation.

IV. THE GERMAN SYSTEM

The German system of tort law is characterized by a more systematic and structured approach. Liability is primarily fault-based and requires the satisfaction of several elements:

1. The violation of a normative codified rule.

2. Unlawfulness:

a) Infringement of another person’s protected rights
b) The intentional infliction of damage “contra bonos mores” – against good morals
c) Violation of statutory law

3. Intention or negligence

**4. Causation (nexus)**

5. Damage

In German law, fault is closely associated with the violation of safety duties. These safety duties are often developed by judges and include obligations to ensure safety for immovable and movable objects, as well as for professional activities. Another important and distinctive feature of the German legal system is the recognition of liability for omissions. This means that a person may be held liable for not performing their duty. However, it is important to note that omission is different from negligence, which is associated with common law, because negligence is the failure to provide reasonable care.

In German law, the general rule is that a person is liable only if they acted with fault, as mentioned. This is based on Article 823 of the German Civil Code (BGB). However, German law also recognizes strict liability, meaning that a person may be held liable without fault. Like in Italy, the German system recognizes the risk principle - a person who creates danger or benefits from a dangerous activity should bear the risk if harm occurs. Therefore, the victim does not need to prove negligence or intention, but only the object that caused the harm, the damage, and the connection between them.

The strict liability areas need to be separated. There is liability for motor vehicles. Under the Road Traffic Act, the keeper of a motor vehicle is strictly liable for damage caused during its operation. The keeper (in German, Halter) is the person who controls the vehicle, uses it for their own benefit, and bears its costs and risks. For instance, if a car suddenly causes a mechanical failure, the keeper may still be liable even if they were careful. However, liability may be excluded in exceptional scenarios like force majeure or unavoidable external events.

Furthermore, German law imposes strict liability on people engaging in dangerous activities. For example, people engaged in the operation of aircraft, railways, nuclear installations, and industrial hazards. The person operating a dangerous activity bears the risk because society considers the activity inherently dangerous.

Another type of strict liability in German law is liability for animals. The German system makes a distinction between domestic animals and luxury or dangerous animals. If a dog, for example, bites someone, the owner is held liable even if they were careful. This is because animals are unpredictable and create a special risk.

V. THE ENGLISH SYSTEM OF TORT LAW

The English system of tort law differs significantly from civil law systems. It developed through specific forms of action, particularly the system of writs. For example, a claimant had to fit their case into a recognized writ, such as trespass. In English law, tortious liability arises from the breach of a duty of care (duty of care - a legal obligation requiring reasonable care while performing acts that could foreseeably harm others).

One of the most fundamental areas of English tort law is negligence. In order to establish negligence, three requirements must be met:

1. The existence of a duty of care

2. Breach of duty of care

3. Consequential damage

The principle of “duty of care” was articulated in the case of Donoghue v Stevenson, which also introduced the “neighbour principle”. According to the principle of duty of care, as announced in Donoghue v Stevenson, a person owes a duty of care to anyone who might reasonably be affected by their actions. Later, this principle developed even further in the case of Home Office v Dorset Yacht, where the court said that a person should be responsible for harm that can be reasonably predicted, unless there is a reasonable legal justification not to make them responsible.

Today, the main rule is the Caparo test. It is applied in situations where there is no previous case to follow. According to this test, a duty of care exists only if:

1. The harm is predictable - Was the harm that occurred a reasonably foreseeable result of the defendant’s conduct?

2. There is proximity - There is a close connection between the parties (e.g., space, time, or relationship)

3. It is fair, just, and reasonable to impose liability

Additionally, English law says that you can be held responsible for providing wrong information if someone else relies on it and suffers damage. This was established in the Hedley Byrne case, where the idea is that if you take responsibility for what you say and someone reasonably trusts you, you may be liable.

Besides negligence, English tort law includes different specific torts. Battery (trespass to the person) is one of them, which includes intentional and physical contact that is harmful or offensive. False imprisonment is another, which includes unlawful confinement even without physical force. Furthermore, we have defamation associated with harming someone’s reputation. Defamation can be divided into two types - “libel”, which is written or permanent, and “slander”, which is spoken or temporary.

English tort law also protects property interests, such as:

a) Trespass to land - consists of unjustifiable interference with possession of land
b) Trespass to chattels (goods) - involves physical interference with another’s goods
c) Conversion - when someone deals with goods in a manner inconsistent with the rights of the owner

I will give another example: in English tort law, even minimal contact can count as battery if it is offensive. In Leichtman v WLW Jacor Communications, blowing cigarette smoke into someone’s face was considered battery because smoke counts as physical contact.

VI. CONCLUSION

Tort law is the area of law which protects individuals from unjust damage. In French and Italian law, we have protection through general principles, while in Germany the law provides structured and limited protection. Common law, on the other hand, relies on specific torts and previous cases. Despite these differences, all systems share one common fundamental idea - those who cause harm must compensate for it.