Research Handbooks in Comparative Law series
Edited by Mauro Bussani and Anthony J. Sebok
Two opposite and competing arguments are normally invoked to ground tort liability. The first seeks to justify liability as a consequence of unreasonable conduct: essentially, liability arises wherever there has been an (unintentional) lack of due care. This type of liability is based on what we will call here ‘fault’ or, in keeping with common law terminology, ‘negligence’. The second justification put forth in arguing for liability relies on the risk attaching to a certain activity or (defective) thing. This second type of liability is incurred irrespective of the defendant’s (careful) behaviour. In the present study, we will refer to it as ‘strict’ liability. A closer examination of the relevant legislation and case-law shows that both lawmakers and the courts tend to mix the two justifications, seeking a middle ground between them. Thus, for example, there are laws that impose a heightened duty of care on persons that carry out hazardous operations or keep dangerous things. In other cases, there may be a presumption of fault that attaches to the realization of certain harms. As a result, the situation is one in which there are not simply two alternative paths, but rather a single wide road with several lanes, offering different mixes of the two types of liability. This does not, of course, mean that the dichotomy between negligence and strict liability is no longer relevant.
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