Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 71: Tort law in general*

Ulrich Magnus


Every legal system knows of tort law as a substantial part of its law. Even countries like New Zealand, which have almost entirely abandoned tort law with respect to personal injury cases and have replaced it with a social insurance scheme, still retain it for cases of damage to property and economic interests (cf. Todd and Hughes, 2009, pp. 62ff.). Tort law is therefore an indispensable part of law; it is that branch of law which provides remedies for civil wrongs, in particular where one party has caused damage to the other. But, unlike contractual liability, tort liability arises irrespectively of any prior agreement between the parties that the damage should be made good; liability in tort does not depend on whether the tortfeasor has – by the prior conclusion of a contract – agreed to its sanctions (see von Bar, 1999, 2001, vol. 1). Tort law fixes general duties which bind every member of a society and whose breach obliges in any event (see, for more or less identical definitions, Kötz and Wagner, 2010; Winfield and Jolowicz, 2010, p. 4; generally also Englard, 1993).

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