Edited by Mauro Bussani and Anthony J. Sebok
This chapter analyses the ways in which legislatures and courts have defined the foundations of tort liability. It shows that each legal system, embedded in its social, economic and cultural realities, tends to develop its own approach to liability, whether fault-based or strict. At times, laws appear to combine both types of liability and offer a third or a hybrid type of liability. Perhaps faithful to its 18th century revolutionary ideals, one fault-based model suggests that liability must rest solely on an objective lack of care, and hold defendants liable, regardless of their personal capacity. More interested in protecting defendants and free enterprise, another model favours defences, including that of the personal state of mind of defendants. The chapter also shows that for no-fault liability, laws offer a wide spectrum of solutions. In some jurisdictions, strict liability rests on a general norm in the hands of judges, where in others the legislature must have passed a special statute defining specifically the risk that triggers liability. Clearly, the choice is political, and it depends of how society views the means to cover the cost of accidents. Regardless of the type of liability, the availability of insurance mechanisms determines of course the reality and outcome of tort litigation. The chapter includes an appraisal of recent legislative reforms or academic proposals, and it concludes that further reflection is needed to evaluate the shortcomings of tort law as an individualistic means of dealing with certain harms.
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