Principles of European Tort Law A Critical Examination

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Principles of European Tort LawA Critical
Examination

• Ken Oliphant (Cardiff Law School)
• BIICL, 23 November 2005

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1. Why Principles of European Tort Law?

• Full harmonisation (a European Civil Code)
• Other hard harmonisation
• Soft harmonisation
• Development of a distinct EC Tort Law
• An exercise in comparative law

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2. Structure of the Principles

• The Basic Norm
• The Three Bases of Liability
• Fault
• Abnormally dangerous activities (strict
  liability)
• Auxiliaries (vicarious liability)
• The Other General Conditions of Liability
• Damage
• Causation
• Defences, remedies, etc.

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Cf. Structure of Study Groups draft
A person who suffers legally relevant damage has
a right to reparation from a person who caused
the damage either intentionally or negligently or
is otherwise accountable for the causation of the
damage.
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Comparison with Other Codes(i) Three-part
structure

• The Principles
• Fault
• Abnormally dangerous activities
• Auxiliaries

• French Civil Code
• Fault (art. 1382)
• Liability for things (art. 1384)
• Liability for others (art. 1384)

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Comparison with Other Codes(ii) Protected
interests

• French law of delict
• BGB 823 (1)
• The Principles

• No specification of protected interests
• List of protected interests covered/not
• A hierarchy of protected interests, with varying
  protection

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3. The Flexible System

• Protection of pure economic interests may or
  may not be more limited in scope.
• an interest may or may not receive more
  extensive protection against intentional harm
  than in other cases
• The required standard of conduct may or may
  not be adjusted when due to age etc. the
  person cannot be expected to conform to it.

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4. Specific principles

• Negligence
• Intentional harm
• Strict liability (abnormally dangerous
  activities)
• Vicarious liability (auxiliaries)
• Causation (inc. proportionate liability)
• Defences acting to reduce liability
• The general reduction clause

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5. Concluding Thoughts A Common Lawyers
Perspective

• The value of the enterprise
• Opening the door to the civilian law of tort
• (cf. Fairchild)
• A common and neutral framework to make sense of
  other legal systems
• The value of these principles
• The best selected ahead of the rest
• Reflecting accumulated practical experience
• Specific proposals an aid to the further
  development of the common law