MATERIALS WEEK 1
The dotted line between ‘fault liability’ and ‘strict liability’: four ideal types of liability in tort law
1. Are the notions of fault and strict liability misleading?
• two notions should be considered as they will be applied all along the four types of liability:
- fault (as in fault liability) ( liability for one’s own faults.
- risk (or strict liability) ( accountability, based on criteria other than individual fault, for the consequences resulting from an unlawful/illegal act.
Four ideal types
• a) Individual liability for one’s own faults
▪ the basis for this type of liability lies in the conduct of the person held liable.
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- motorists must take account of the mistakes of other participants in traffic
( the standard used to test the average driver is that of the ‘perfect driver’.
Various scenes behind the rules
608 Legal cultures
• a rule is presented, then divided into sub-rules, each of them divided again into sub-sub-rules.
• the use of precedent gives the law a static rather than a dynamic approach. However, the Lords may create law by deviating from existing precedents.
• the common lawyers think in actions and remedies rather than in wrongful or negligent conduct.
• use of the grand principes which are the basis of general concepts and general rules.
• the French seem to be more able to live with a certain lack of clarity and certainty.
• the EU approach is functional as it is only supposed to regulate matters which are relevant to achieve Community goals.
• there are various starting points of thinking in the different tort systems
- French believe in their general principles;
- Germans love their legal order and its details;
- English cherish their traditions.
609 Policy approaches
• tort law is about balancing the interests of individuals, private, and public bodies. It distributes rights, duties, and money.
• differences in policy approach between legal systems are discerned in:
- the importance of strict liability
- the treatment of public authorities
- the function of tort law and the kind of justice that is pursued.
What kind of justice do we distinguish in England, France and Germany?
a) corrective justice ( making good a wrong without taking into consideration the needs, the character, or the worth of the parties concerned.
b) distributive justice ( the distribution of goods in society as a whole, taking into consideration every person’s need and desire.
• mainly about corrective justice and regulation conduct
▪ ex: - the English fault liability does not require more than is humanly possible
- English law puts a strong emphasis on the foreseeability on the loss
- English law provides the...