Comparative Tort Law
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Comparative Tort Law

Global Perspectives

Edited by Mauro Bussani and Anthony J. Sebok

Comparative Tort Law: Global Perspectives provides a framework for analyzing and understanding the current state of tort law in most of the world's legal systems. The book examines tort law theories, rules and cultures. It looks at general issues at play throughout the globe, such as causation, economic and non-economic damages, product and professional liability, as well as the relationship between tort law and crime, insurance, and public welfare schemes. The book also provides insightful case studies by analyzing specific features of selected tort systems in Europe, USA, Latin America, East Asia, and sub-Saharan Africa.
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Chapter 9: The architecture of the common and civil law of torts: An historical survey

James Gordley


Two key questions of the law of tort or delict are what conduct by the defendant triggers liability and for what grievances the plaintiff may recover. In civil law and common law today, the first question is answered by saying that to be liable, in general, the defendant must have been at fault, either intentionally or by negligence. Strict liability or liability without fault does not fit within this structure, and it has been difficult to find a place for it. In the late 19th century, French courts created strict liability by a new and forced interpretation of article 1384 of the Civil Code which provides that a person is liable for harm caused by any object in his custody (garde). Previously, the courts had said that the article applied only if the defendant had been at fault. The Germans provided for strict liability by a series of statutes outside their Code which apply to a variety of activities including the operation of railroads and aircraft and the storage and transport of fuel and electricity. German courts have refused to apply these statutes by analogy to other activities. In common law, in the United States, a plaintiff is strictly liable for conducting abnormally dangerous activities, but English courts have rejected this principle. The second question concerns the grievances for which the defendant can recover. It is answered by saying that the defendant can recover for harm to his rights or interests. The answer is phrased in different ways.

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