Research Handbooks in Comparative Law series
Edited by Mauro Bussani and Anthony J. Sebok
Chapter 11: Professional liability
Tort law traditionally recognises a separate treatment for professional liability. The professions concerned are the classical liberal professions, such as those of accountants, attorneys, bankers, providers of medical services and a number of other professionals. This chapter is part of a publication on tort law. However, in recent years there has been a move from tort to contract, in general and with regard to professional liability in particular. An example of the latter is the legislative regulation of medical liability in some European nations. As recently as February 2013, the German Patient Law Act (Patientenrechtegesetz) codified medical liability, which so far had been based on negligence in tort, in the part of the Civil Code (Bürgerliches Gesetzbuch) devoted to contract law. The Germans followed the example of the earlier Dutch and the Czech codification of medical liability. Another example is the entry into force by 31 January 2013 of the new standard contractual terms for solicitors instructing a barrister in England. More in general, it should be added that the distinction between tort and contract, although by no means obsolete, especially as to liability for damages, is slowly becoming less important in other jurisdictions as well. Now, there is a difference as concerns the various professions. With regard to medical liability, it is difficult – although not wholly inconceivable – to imagine that negligence is committed vis-à-vis someone who has no bond at all with the provider of medical services.
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