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V
Contents
List of Abbreviations ............................................................................ X
The European Group on Tort Law ........................................................ XII
COMMENTARIES ................................................................................ 11
VII
Contents
VIII
Contents
IX
List of Abbreviations
A.C. Law Reports: Appeal Cases
AcP Archiv fuÈr die civilistische Praxis
al. alinea
Art. Article(s)
BGB BuÈrgerliches Gesetzbuch
BGH Bundesgerichtshof
BGHZ Entscheidungen des (deutschen) Bundesgerichtshofs in Zivil-
sachen
Cass. Cour de Cassation, Corte di Cassazione
cf. confer
ch. Chapter
cmt. comment
Cod. civ. Codice civile
csqn conditio sine qua non
DFC Decisions of the Swiss Federal Court
ECJ European Court of Justice
e.g. for example
ed(s). editor(s)
edn. edition
E.D.N.Y. Eastern District of New York
eds. editors
EJCL Electronic Journal of Comparative Law (http://www.ejcl.org)
et al. et alii
et seq. et sequens, et sequentia
etc. et cetera
F. Supp. Federal Supplement
fn. footnote(s)
HR Hoge Raad
i.e. id est
JBl Juristische BlaÈtter
lit. litera
NBW Nieuw Burgerlijk Wetboek
NJ Nederlands Jurisprudentie
NJW Neue Juristische Wochenschrift
no. marginal number(s)
OGH Oberster Gerichtshof
OJ Official Journal of the European Union
X
List of Abbreviations
XI
The European Group on Tort Law
Francesco D. Busnelli Pisa Italy
Giovanni Comande Pisa Italy
Herman Cousy Leuven Belgium
Dan B. Dobbs Tucson USA
Bill W. Dufwa Stockholm Sweden
Michael G. Faure Maastricht Netherlands
Israel Gilead Jerusalem Israel
Michael D. Green Winston-Salem USA
Konstantinos D. Kerameus Athens Greece
Bernhard A. Koch Innsbruck/Vienna Austria
Helmut Koziol Vienna/Graz Austria
Ulrich Magnus Hamburg Germany
Miquel MartõÂn-Casals Girona Spain
Olivier MoreÂteau Lyon France
Johann Neethling Pretoria South Africa
W. V. Horton Rogers Leeds England
Jorge Ferreira Sinde Monteiro Coimbra Portugal
Jaap Spier The Hague Netherlands
Lubos Tichy Prague Czech Republic
Pierre Widmer Lausanne Switzerland
http://www.egtl.org
XII
Principles of European Tort Law
European Group on Tort Law
Principles of European Tort Law
TITLE I. Basic Norm
Chapter 1. Basic Norm
Art. 1:101. Basic Norm
(1) A person to whom damage to another is legally attributed is liable to
compensate that damage.
(2) Damage may be attributed in particular to the person
a) whose conduct constituting fault has caused it; or
b) whose abnormally dangerous activity has caused it; or
c) whose auxiliary has caused it within the scope of his functions.
(5) The scope of protection may also be affected by the nature of liability,
so that an interest may receive more extensive protection against inten-
tional harm than in other cases.
(6) In determining the scope of protection, the interests of the actor, espe-
cially in liberty of action and in exercising his rights, as well as public inter-
ests also have to be taken into consideration.
Art. 2:103. Legitimacy of Damage
Losses relating to activities or sources which are regarded as illegitimate
cannot be recovered.
Art. 2:104. Preventive Expenses
Expenses incurred to prevent threatened damage amount to recoverable
damage in so far as reasonably incurred.
Art. 2:105. Proof of Damage
Damage must be proved according to normal procedural standards. The
court may estimate the extent of damage where proof of the exact amount
would be too difficult or too costly.
Chapter 3. Causation
Section 1. Conditio sine qua non and Qualifications
Art. 3:101. Conditio sine qua non
An activity or conduct (hereafter: activity) is a cause of the victim's damage
if, in the absence of the activity, the damage would not have occurred.
Art. 3:102. Concurrent Causes
In case of multiple activities, where each of them alone would have caused
the damage at the same time, each activity is regarded as a cause of the vic-
tim's damage.
Art. 3:103. Alternative Causes
(1) In case of multiple activities, where each of them alone would have
been sufficient to cause the damage, but it remains uncertain which one in
fact caused it, each activity is regarded as a cause to the extent correspond-
ing to the likelihood that it may have caused the victim's damage.
(2) If, in case of multiple victims, it remains uncertain whether a particular
victim's damage has been caused by an activity, while it is likely that it did
not cause the damage of all victims, the activity is regarded as a cause of
the damage suffered by all victims in proportion to the likelihood that it
may have caused the damage of a particular victim.
Art. 3:104. Potential Causes
(1) If an activity has definitely and irreversibly led the victim to suffer
damage, a subsequent activity which alone would have caused the same
damage is to be disregarded.
3
European Group on Tort Law
(2) Whether strict liability is excluded or reduced, and if so, to what extent,
depends upon the weight of the external influence on the one hand and the
scope of liability (Article 3:201) on the other.
(3) When reduced according to paragraph (1)(b), strict liability and any lia-
bility of the third party are solidary in accordance with Article 9:101 (1)(b).
Chapter 8. Contributory Conduct or Activity
Art. 8:101. Contributory Conduct or Activity of the Victim
(1) Liability can be excluded or reduced to such extent as is considered just
having regard to the victim's contributory fault and to any other matters
which would be relevant to establish or reduce liability of the victim if he
were the tortfeasor.
(2) Where damages are claimed with respect to the death of a person, his
conduct or activity excludes or reduces liability according to paragraph (1).
(3) The contributory conduct or activity of an auxiliary of the victim
excludes or reduces the damages recoverable by the latter according to
paragraph (1).
10
Commentaries
General Introduction
tion to the outcome. This seems true for the Austrian, German and perhaps
the Dutch tort law.
12 The respective systems diverge in particular as to the doctrinal approach of
the basic norm. We have discussed several possibilities, borrowed from
many legal systems. After long lasting discussions, we have opted for the
protected interests approach; see Art. 2:102 and the commentary thereon.
13 Our draft clearly is a compromise of the different views and solutions in the
respective countries. It aims to bridge differences and to find a reasonable
and coherent way to tackle the topics dealt with.
2. Working Method 1
14 When embarking on a new topic, one member was invited to serve as
reporter and draft a questionnaire consisting of two parts: general issues
and concrete cases, often borrowed from case law in various countries.
This questionnaire was discussed in a meeting. After revision, the members
were invited to draft a national report on the basis of the questionnaire.
Subsequently the member(s) in charge drafted a comparative report based
on the national drafts submitted. In the next general meeting the topic
was discussed at length, with the primary aim to reach consensus on the
important issues. On that basis the reporter tried to draft provisional princi-
ples. This draft was discussed in the next meeting. Meetings were held in
Graz, Hamburg*, Lausanne*, Lyon, Munich*, MuÈnster, Pisa, Tossa de
Mar, Vienna* and WuÈrzburg (* means several times).
15 On this basis, we have dealt with wrongfulness, causation, damages, fault,
strict liability, liability for others, multiple tortfeasors and contributory
negligence. The questionnaires, country reports and the comparative
reports of all these topics have been published or will be published shortly
in the Group's series ªPrinciples of European Tort Lawº 2.
16 As our group is very closely related to ECTIL, we could borrow from the
important and in-depth research executed by it too.
17 In 2002 it was decided to start drafting a full set of principles on the basis of
the work done so far. The drafting was prepared by a Drafting Committee
consisting of Prof. Busnelli, Prof. Koch, Prof. Koziol, Prof. Magnus, Prof.
Martin Casals, Prof. MoreÂteau, Prof. Rogers, Prof. Spier and Prof. Widmer.
The basis for its discussions were the provisional draft and the subsequent
discussions. The Drafting Committee met several times in Vienna and
Munich.
18 After the final substantive meeting of the group in Vienna (spring 2004),
the Drafting Committee was assigned the task to complete and adapt the
final text of the Principles and the commentary thereto. The committee
met twice in the course of 2004; once in Girona and once in Vienna. Its
1
See, also for further references, H. Koziol, Die ªPrinciples of European Tort Lawº der ªEur-
opean Group on Tort Lawº, [2004] Zeitschrift fuÈr EuropaÈisches Privatrecht (ZEuP), 234 et seq.
2
See infra p. 282.
14 Spier
General Introduction
ious factors is meant by our group. The commentary often refers to cases
borrowed from the questionnaires and other cases addressed in the many
meetings on the relevant topic. Thus, we hope to show how they are to be
applied to real life cases. The previous volumes published by the Group
also serve as a source of additional information.
26 Although the very greater part of the (old) EU countries had members in
the Group, we realise that not every country was represented. To some
extent this shortcoming was remedied by extensive knowledge of several
members of the legal systems of the non-represented countries. Further-
more, during the course of our work it became clear that many new coun-
tries would join the EU. At that stage it was practically impossible to start
from scratch again. Yet, for the purpose of further developing European
private law, their views must be taken into account, of course.
27 We have tried to reach consensus which has proven possible in relation to
the vast majority of our Principles. Yet, it could not be reached in every
single case.
28 In case of ± rare ± fundamental disagreement, we refrained from a mechan-
ical way of voting, but we did account of the relative size and influences of
the countries represented. Differing opinions are mentioned throughout
the commentary.
29 It speaks for itself that not every member is particularly happy with the
entire set of Principles and every single Principle. In a very few cases
some members have explicitly expressed dissenting opinions. This only
happened in those instances where they had very considerable hesitations
as to the text that has been agreed by our group.
National legal systems are related to legal culture, tradition and issues such 33
as the scope of social and first party insurance.
Probably more than in most other areas of private law, tort law must make 34
rather political choices.
Moreover, it is often hard, if not impossible, to reconcile the different inter- 35
ests or even to weigh them properly. After all, to a large extent one has to
operate in the dark as to important questions such as the potential effects
(the floodgate-argument; do specific choices encourage litigation and, if
so, to what extent in terms of money and the number of claims; the extent
to which tort law deters socially inappropriate conduct and insurability).
In this respect, it should be borne in mind that it is very much open to
debate whether the scene will be the same all over Europe.
Discussions on the law of torts, in particular in relation to personal injury, 36
often tend towards opening the floodgates instead of shutting them. If it
comes down to decisions as to specific topics, many are more often than
not inclined to harp on the defendant's tune, whereas they may be more
liberal when talking about specific cases.
We have had many discussions of this kind in our group too. In several 37
instances we have decided not to venture too far; e.g. Art. 5:101. In other
areas we break new ground, at least seen from the perspective of some
European legal systems. Art. 3:103, 3:104, 3:105, 4:102, 7:101, 10:301 para.
1 third sentence and 10:401. The latter may serve as a tool to avoid too
harsh consequences of full liability, which may have a tremendous and ±
as the majority of the group believes ± not per se justified impact on the
life of a tortfeasor.
Moreover, our Principles generally are rather open. They often provide 38
quite a lot of manúuvring room to adapt them to the changing needs and
requirements of the future; see e.g. Art. 5:102 para 2.
Furthermore, the practical picture cannot be confined to the private law of 39
torts: nowadays due regard must be had to human rights, directives, case
law of supra-national courts and constitutional requirements. The Princi-
ples are to be read and interpreted in their spirit.
Other groups also focus on tort law. That is in particular true for the Work- 40
ing Team on Extra-Contractual Obligations of the Study Group on a Eur-
opean Civil Code under the direction of Christian von Bar (OsnabruÈck).
Apart from a rather different drafting style, there are many similarities
between their and our Principles. There are considerable substantive differ-
ences too. It does not seem necessary to address them here in any detail, all
the less so as their text has not yet reached its final stage; it is still subject to
change 3.
3
The current draft (as of June 2004) can be downloaded at http://www.sgecc.net/media/down-
load/04_06tort.pdf.
Spier 17
General Introduction
18 Spier
Title I. Basic Norm
Chapter 1. Basic Norm
Art. 1:101 . Basic Norm
(1) A person to whom damage to another is legally attributable is liable to
compensate that damage.
(2) Damage may be attributed in particular to the person
a) whose conduct constituting fault has caused it; or
b) whose abnormally dangerous activity has caused it; or
c) whose auxiliary has caused it within the scope of his functions.
Comments
1. Overview
The basic norm should only indicate some fundamental ideas and give a 1
rough overview of the main reasons of liability. As to the first aim, Art.
1:101 shows that a person has to compensate another person's harm only
if certain requirements for liability are met. In other words, a person's obli-
gation to render compensation is only established if the damage is legally
attributable to him. The basic norm thereby implicitly makes clear that
ªcasum sentit dominusº. The starting point is therefore that every person
has to bear his loss himself, which is only departed from if there is a legal
basis for shifting it to another.
Furthermore, Art. 1:101 provides that damage has to be compensated. The 2
basic norm thereby stresses firstly one of the general conditions for liability,
namely that another person suffered harm; secondly, that tort law strives
for compensation of that harm. Therefore, the Principles of tort law are
no basis for punitive damages or other payments which are not in corre-
spondence with harm suffered by the victim 1. This is underlined once
more by Art. 10.101 which says that damages are payments to restore the
victim, and points out that damages serve primarily the aim of compensa-
tion but also of prevention. However, compensable harm is not confined
to loss of money or property or financial expenditure.
1
See U. Magnus, Comparative Report on the Law of Damages, in: U. Magnus (ed.), Unifica-
tion of Tort Law: Damages (2001) 185.
Koziol 19
Art. 1:101 Title I. Basic Norm
3 Paragraph 2 also provides that damage may be attributed only to the per-
son who caused it; thus it refers to the provisions on causation in Chapter
3 Section 1. Causing the damage is decisive as it is the second general con-
dition of liability, but paragraph 2 also emphasizes that causation on its
own is not sufficient for establishing liability; on the contrary, liability
requires further reasons for shifting the loss, the core reasons being fault,
dangerous activity (the idea of ªriskº) and what is commonly called vicar-
ious liability. For this purpose, the basic norm is a ªsignpostº to the more
detailed principles in Title III.
4 Three further points should be made in relation to the basic norm.
5 First, the bases of liability enumerated in para. 2 are not intended to be in
some descending hierarchy: conceptually they are equal and alternative.
That means that liability based on fault is not seen as the fundamental cate-
gory of liability and all other liabilities as exceptions but rather as different
areas of liability based on different reasons which exist side by side 2.
6 Secondly, Art. 1:101 by listing the three main causes of liability does not
intend to express the idea that the three areas of liability are wholly inde-
pendent of one another and strictly separated by clear borderlines. On the
contrary, the members of the European Group were conscious of the exis-
tence of ªgrey zonesº, i.e. areas in between fault-based and strict liability 3.
7 Thirdly, the norm is a ªbasicº one and does not purport to provide for all
instances of ªtortº liability in all circumstances.
2. Terminology
a) Person
8 ªPersonº of course includes legal as well as natural persons.
b) Damage
9 Art 1:101 refers to ªdamageº as such, but Art. 2:101 shows that only com-
pensable damage is of relevance and defines such damage.
c) Compensate
10 The meaning of compensation is explained in Art. 10.101: The liable per-
son has to restore the victim.
d) Conduct
11 ªConductº has to be understood in a broad sense; the word comprises acts
as well as omissions.
2
But see Art. 4:101 no. 6.
3
Cf., e.g., the answers to the first question in Part I. A. 1. of the questionnaire on strict liability:
ªStrict liability versus fault liability ± alternatives or grey areas in between?º. See B.A. Koch/
H. Koziol (eds.), Unification of Tort Law: Strict Liability (2002), and below the comments to
Chapter 5.
20 Koziol
Chapter 1. Basic Norm Art. 1:101
e) Fault
ªFaultº is defined in Art. 4:101. 12
f) Causation
Chapter 3 deals with ªCausationº and Art. 3:101 defines the cause of 13
damage.
g) Abnormally dangerous
This term is explained by Art. 5:101 4. 14
h) Auxiliary
As to this expression cf. Art. 6:102 5. 15
4
See Art. 5:101 no. 7.
5
See Art. 6:102 no. 6.
6
7 April 2001 in Vienna.
7
The wording of the first draft was:
ª(1) A person is liable for the compensation of the damage caused to another insofar as the
law permits to impute such damage to her.
(2) Damage can be imputed in particular
a) to the person whose behaviour has caused it and who is at fault;
yb) to the person who makes use of an agent, if the damage has been caused by such agent in
the course of an activity for which such agent has been engaged, or
c) to the person who is in a lasting position to control a source of high danger, if the damage
results from the realisation of the characteristic risk inherent thereto.º
8
30 May 2002 in Pisa.
Koziol 21
Art. 1:101 Title I. Basic Norm
9
See infra Introduction to Chapter 5, no. 10.
22 Koziol
Title II. General Conditions of Liability
Introduction
1. Overview
Title II deals with damage and causation, which are necessary conditions 1
for liability: As already mentioned in the commentary to the basic norm,
according to these Principles tort law aims at compensation of harm, and
therefore, no claim can be established without legally cognisable damage.
Further, causation is recognised by all legal systems as a requirement of
tortious liability 1 . Therefore, attribution of damage to one person requires
in any case that this person herself or another person or a thing in her
sphere has caused the damage; otherwise there is no connection between
this person and the damage suffered by the victim which calls upon that
person to make recompense.
It must be emphasized that this Title sets out general requirements for lia- 2
bility which must be fulfilled in all cases but these requirements are not suf-
ficient: in addition there must be one of the reasons for attributing the loss
found in Title III.
1
See J. Spier/O.A. Haazen, Comparative Conclusions on Causation, in: J. Spier (ed.), Unifica-
tion of Tort Law: Causation (2000) 127.
2
Meeting in Lausanne, 2 and 3 May 2003.
Koziol 23
Introduction Title II. General Conditions of Liability
Chapter 2. Damage
Introduction
1. Overview
1 Although the title of the chapter refers to ªdamageº in general, Art. 2:101
only mentions ªcompensable damageº. Therefore it is clear that not every
harm suffered by another person can be recovered under tort law: Estab-
lishing an obligation to compensate the damage requires an interference
with a legally protected interest. Which interests are legally protected has
to be ascertained on the basis of the whole legal system. But Art 2:102
sets out the relevant factors in determining the scope of protection.
2 The idea behind placing the emphasis on ªlegally protected interestsº is of
importance for the understanding of the fundamental concept of the Princi-
ples. Underlying the notion of interference with protected interests is one
aspect of the concept which the European Group on Tort law in its discus-
sions has called ªwrongfulnessº 1. We believe that it is possible to trace in
most of the systems we have considered some underlying idea of wrongful-
ness (though by no means necessarily under that name) which can be
regarded as a foundation of tort liability. Unfortunately, there is no unifor-
mity in the use of the expression. In the context of fault liability, in some
systems the stress is upon the interest protected and thus the unwanted
result ± the Erfolgsunrechtslehre, or the result-oriented theory. In other sys-
tems, even though it is accepted that not all interests are uniformly pro-
tected, wrongfulness goes to the behaviour of the tortfeasor (Verhaltensun-
rechtslehre). In yet others wrongfulness is a matter of the combination of
infringement of a protected interest and faulty behaviour, giving the
impression that wrongfulness is not much more than shorthand for ªliabi-
lity in tortº. Some systems (of which the most prominent is France) simply
do not recognize the concept under that or any other name, which does
not mean that the concept is denied altogether. Even in these systems,
wrongfulness may be described as a distinct component of faulty behaviour,
an implied reference to the protected interests and the required standard of
conduct. Things are further complicated by the fact that in some systems
there is a strong subjective element to fault (and not merely in special cases
where the actor lacks full legal capacity). In these cases one may speak of
the conduct being wrongful in the abstract quite apart from the issue of
interference with a protected interest (in German one might say that the
behaviour is tatbestandsmaÈûig) even though the actor may escape liability
because he is not at fault; on the other hand, in a system which takes a
firmly objective position on fault that distinction would be practically
meaningless.
1
Cf. H. Koziol, Conclusions, in: H. Koziol (ed.), Unification of Tort Law: Wrongfulness (1998,
hereafter cited as PETL Wrongfulness) 129 et seq.; H. Koziol, The Concept of Wrongfulness
under the Principles of European Tort Law, in: H. Koziol/B. Steininger (eds.), European
Tort Law 2002 (2003) 552 et seq.
24 Koziol
Chapter 2. Damage Introduction
Koziol 25
Introduction Title II. General Conditions of Liability
26 Koziol
Chapter 2. Damage Art. 2:101
opinion as well under Austrian law 14 as under Greek 15 and South African 16
law that the behaviour has to be qualified, and this theory also corresponds
to the breach of standard of care under English law 17. As French lawyers
do not strictly keep fault and wrongfulness apart 18, one has to assume that
they also qualify the behaviour and not the result; the same seems to be
true under Belgian law 19. To some extent Italian law tries to synthesize
both ways of establishing wrongfulness by the introduction of the flexible
rule of danno ingiusto following the Roman tradition of iniuria (understood
both as non iure and contra ius) 20.
Comments
1. Introduction
The meaning of damage is defined in rather broad terms1. The provision 1
has the effect that recoverable damage involves a negative variation in the
injured party's protected sphere; the notion of damage is thus not a ªnat-
uralº but a ªlegalº one 2. Furthermore, it makes clear at the outset that any
kind of grievance is potentially covered by the notion of damage; therefore,
immaterial as well as material harm can constitute compensable damage.
However, as has been explained above, the Principles apply only to com-
pensable damage, that is to say, damage to a legally protected interest.
Other harm, even if it might be regarded as damage in the ordinary use of
language, is not compensable. Thus a person may not claim compensation
for having been deprived of the fruits of an illegal activity (see Art. 2:103).
2. Definitions
a) Damage/Harm
Linguistically, it might be said that in the context of this Article ªdamageº 2
is a legal concept and ªharmº a natural one. However, the shift is really
13
Cf. Art 6:162 Burgerlijk Wetboek (BW); further J. Spier, The Netherlands, PETL Wrongful-
ness, 87 et seq.
14
See H. Koziol, Austria, PETL Wrongfulness, 13 et seq.
15
See the report by K.D. Kerameus, Greece, PETL Wrongfulness, 66.
16
Cf J. Neethling, South Africa, PETL Wrongfulness, 101 et seq.
17
See the W.V.H. Rogers, England, PETL Wrongfulness, 39 et seq.
18
G. Viney, France, PETL Wrongfulness, 57 et seq.
19
H.A. Cousy, Belgium, PETL Wrongfulness, 31 et seq.
20
Cf. F.D. Busnelli/G. ComandeÂ, Italy, PETL Wrongfulness, 69 et seq.
1
Cf. to the reasons U. Magnus, Germany, in U. Magnus (ed.), Unification of Tort Law:
Damages (2001, hereafter cited as PETL Damages) 89 (no. 36 et seq.).
2
See U. Magnus, Germany, PETL Damages, no. 34.
Koziol 27
Art. 2:101 Title II. General Conditions of Liability
3
This was the outcome of the Drafting Committee's meeting on 19 May 2000.
4
See U. Magnus, Germany, PETL Damages, no. 37.
5
W.V.H. Rogers, Comparative Report, in: W.V.H. Rogers (ed.), Damages for Non-Pecuniary
Loss in a Comparative Perspective (2001) 246 (no. 2). Cf. also U. Magnus, Germany, PETL
Damages, no. 40.
6
See U. Magnus, Germany, PETL Damages, no. 33.
7
Cf. H. Koziol, Austria, PETL Damages, 10 (no. 16 et seq.).
28 Koziol
Chapter 2. Damage Art. 2:102
Illustrations
With regard to losses relating to illegitimate activities or sources, an illus- 7
tration is given in the commentary on Art. 2:103 8.
Another problem recently under discussion and connected with the notion 8
of damage, is compensation for ªwrongful lifeº 9. The question is whether
a handicapped child can base its claim for damages on the ground that it
would not have existed had the doctor acted carefully whilst examining
the mother during pregnancy, because she would have had an abortion
had she known of her child's handicap already then. This is a complex
and highly emotive issue, which admits of different answers, but according
to the prevailing opinion the child has no such claim because it is held
that legal systems do not protect the interest of a person not to live and
that no one has a right to be killed before or after birth 10.
8
Infra Art. 2:103 no. 9.
9
See the comments in the country reports on Case 1 in: U. Magnus, Germany, PETL Damages,
further idem, Comparative Report on the Law of Damages, PETL Damages, 185 (no. 98).
10
Cf. U. Magnus, Germany, PETL Damages, no. 98; further O. Massot, France, in: H. Koziol/B.
Steininger (eds.), European Tort Law 2001 (2002) 191 (no. 22 et seq.); Ph. Brun, France, in:
H. Koziol/B. Steininger (eds.), European Tort Law 2002 (2003) 179 (no. 17 et seq.).
Koziol 29
Art. 2:102 Title II. General Conditions of Liability
Comments
1. Introduction
1 A legal system can specify areas of protection in two ways 1: On the one
hand, it can forbid or demand a more or less predetermined behaviour;
from this, one may conclude that the law intends to protect certain interests
which would otherwise be endangered. On the other hand, a legal system
can describe the protected rights or interests and demand in a rather gen-
eral way that they should not be interfered with except as far as is reason-
able. These two methods are usually combined.
2 The question of how extensive the protection of a person's interest is and
which behaviour is therefore required from all others can be answered
rather easily if there is a particular imperative rule (Schutzgesetz) which
forbids endangering an interest by some conduct fairly precisely described.
The issue becomes more complex if the law only provides that others must
not act contra bonos mores. Establishing the level of protection is also more
difficult if the legal system merely describes the rights or interests to be pro-
tected as far as is reasonable. It is then left to practice to determine the
scope of protection and the behaviour demanded from others. Specific leg-
islation may of course precisely define the scope of protection. Thus the EC
Directive on Product Liability allows a claim to be made in respect of per-
sonal injury and damage to other property in private use, but not, for
example, in respect of damage to the property of a company.
3 Art. 2:102 does not mention imperative rules. But it seems a matter of
course that rules which rather precisely prescribe or forbid a certain beha-
viour reveal that the legal system aims at the protection of the otherwise
endangered interests, at least against violation by such behaviour. There-
fore, it seems possible to refrain from expressly mentioning this way of pre-
scribing the scope of protection.
4 As to boni mores, these are also not mentioned by Art. 2:102. Quite apart
from the fact that the concept would have little or no meaning in some sys-
tems, the reason is that referring to bonos mores in itself does not give any
indication of the solution, not even a clue to which factors are relevant.
Therefore, in establishing whether a behaviour is contra bonos mores one
has to weigh all the interests of the parties involved. Thus, there is no dif-
ference to the general way of establishing the scope of protection, and
therefore, no need for a special provision.
5 As we have mentioned above, there are very considerable variations in the
approach of European systems to the issue of protected interests. Thus this
idea is the more or less explicit underpinning of German law. We believe
that something of the same nature is to be found in the common law via
the terminology of the duty of care, since a primary function of duty is to
1
See H. Koziol, The Concept of Wrongfulness under the Principles of European Tort Law, in:
H. Koziol/B. Steininger (eds.), European Tort Law 2002 (2003) 552 et seq.
30 Koziol
Chapter 2. Damage Art. 2:102
2. Definitions
a) Obviousness
Interests are obvious when third persons have reason to be aware of 6
their existence and range 2. The rights to life and also of property are
rather obvious, pure economic and immaterial interests are by no means
obvious. The importance of this factor has been worked out especially
under German law.
b) Precision of Definition
The idea is that some rights have a comparatively clear-cut borderline as, 7
e.g., the right to life or property, whereas others have a broad grey zone,
e.g., the right to privacy or, more so, pure economic interests.
2
H. Koziol, Austria, PETL Wrongfulness, 15 with further references.
Koziol 31
Art. 2:102 Title II. General Conditions of Liability
c) Proximity
8 By proximity we mean the closeness of the relationship between the par-
ties. We do not mean it to have the technical (if somewhat obscure) mean-
ing it has acquired in the common law. Plainly, there is likely to be proxi-
mity between parties to or negotiating for a contract (assuming the legal
system allows the concurrence of contract and tort). It is less likely that
there will be proximity between an author and ªconsumersº of generally
published information. On the other hand, even where there is no contact
the nature of the activity may suggest that it is reasonable to regard one
as placing reliance on the other. So there would likely be proximity
between a person issuing a prospectus and those to whom the information
is addressed; and while it is unlikely that a court would impose liability for
advice in a generally published business manual the same might not be
true if, say, the book was a manual for consumers on electrical wiring or
on identifying edible fungi.
d) Pure Economic Loss
9 Pure economic loss is a financial loss which does not result from physical
injury to the plaintiff's own person or property 3.
e) Value
10 Value refers on the one hand to the ranking of an interest. The right to
human life, for example, has a higher ranking than ownership of a book
or the interest to gain some profit. This is shown by many constitutions
and conventions, e.g., the Convention on Human Rights. On the other
hand, value relates also to the size of the interest: The ownership of a
low-priced book which is broadly available in any bookshop is of less value
than the ownership of one of Rembrandt's paintings.
3. Reasons
11 In laying down the scope of protection one has to consider that opposing
interests are involved 4: In protecting one person's interests and rights, the
legal system demands that all others should respect those areas: If the legal
system recognizes protected positions of a person, then it requires that all
others respect those rights and interests to a reasonable extent. The owner
of the protected right or interest does not have to tolerate interference
without justification; he may have the right to apply for an injunction and
the right to self-defence. As a result, every recognition of protected spheres
leads to restriction of freedom of all others. Therefore, establishing the
3
Cf. W. van Boom, Pure Economic Loss: A Comparative Perspective, in: W. van Boom/
H. Koziol/Ch. Witting (eds.), Pure Economic Loss (2004) 2 et seq.; I. Gilead, The Limits of
Tort Liability in Negligence and Pure Economic Loss, in: H. Hausmaninger et al. (eds.),
Developments in Austrian and Israeli Private Law (1999) 203; J. Neethling, South Africa,
PETL Wrongfulness, 106.
4
Cf. R. Alexy, Begriff und Geltung des Rechts (1992) 120.
32 Koziol
Chapter 2. Damage Art. 2:102
5
Cf. in more detail E.K. Banakas (ed.), Civil Liability for Pure Economic Loss (1996); W. van
Boom/H. Koziol/Ch. Witting (eds.), Pure Economic Loss (2004); M. Bussani/V.V. Palmer
(eds.), Pure Economic Loss in Europe (2003).
Koziol 33
Art. 2:103 Title II. General Conditions of Liability
tinct clues that the legislators as well as the courts under some legal systems
take certain factors into consideration. Art. 2:102 is the compromise synth-
esis of some of the country reports written by members of the European
Group 6.
Illustrations
17 As to the rights of personality which do not have such clear contours as the
fundamental rights to life, bodily or mental integrity and liberty, the inter-
ests of all others in the freedom of action have to be considered. As a
result, the right to honour or reputation is protected against true statements
or expressions of opinion only to a small extent 7. Even if a comment is
untrue, for example, the right of others to free statement of opinion and
the interest in full information have to be considered 8. Regarding contrac-
tual rights, it carries weight that the interests are of lower ranking, and
that they have various contents which are not obvious 9. This is even more
so the case for pure economic interests 10. Therefore, the competing inter-
ests of others have to be valued as being of equal rank. As a consequence,
pure economic interests, e.g., the chance to net a profit, enjoy protection
only to a limited extent 11. Even more restricted is the protection of pure
immaterial interests, e.g., not to be worried or frightened by someone's
behaviour 12.
Comments
1. Introduction
1 The provision addresses a specific subproblem of the law of damage. It
makes clear that compensation of damage requires that the loss must not
only result from the violation of a legally protected interest as provided
by Art. 2:102 but also that the loss flowing from such violation ± for
instance loss of income ± must be recognised by law as well. When an activ-
6
Cf. the conclusions by H. Koziol, PETL Wrongfulness, 131 et seq.
7
See the reports on case 6 in PETL Wrongfulness.
8
See the reports on case 7 in PETL Wrongfulness.
9
See the reports on case 2 in PETL Wrongfulness.
10
See the reports on case 1, 3 and 4 in PETL Wrongfulness.
11
See the reports on case 1 in PETL Wrongfulness; cf. further the outlook in W. van Boom/
H. Koziol/Ch. Witting (eds.), Pure Economic Loss (2004) 191 et seq.
12
Cf. infra the comments on Art. 10:301 et seq.; further W.V.H. Rogers, Comparative Report, in
W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001)
no. 31.
34 Koziol/Magnus
Chapter 2. Damage Art. 2:103
ity or source of gain or profit is illegal or disapproved of by the law then its
loss does not constitute recoverable damage. Illegitimate losses do not
deserve the protection of the law and therefore may not be recovered.
The provision is thus a specific expression and extension of the general 2
concept of Art. 2:102 to consequential losses: consequential losses must
relate to positions or expected gains which are protected by the law. On
the other hand the Article implicitly confirms that legitimate losses ± be
they direct or indirect consequences of an infringement of a legally pro-
tected interest ± are in principle recoverable.
2. Definition
Illegitimate
A loss ± for instance of income ± is regarded as illegitimate if the injured 3
person loses income which is not lawfully earned. This is certainly the case
where the injured person pursues some illegal ± e.g., criminal ± activity for-
bidden by law and would have had proceeds from it had the injury not
occurred. Such lost proceeds cannot be recovered. Even where the activity
is disapproved of but nonetheless tolerated (as, e.g., in case of prostitutes)
the gain from it may be regarded as illegitimate not deserving the full pro-
tection of the law. 1 The decision on whether an activity or source is illegiti-
mate depends on what the law prescribes and on what social values and
common judgment allow and disallow. As the case of the prostitutes shows
this judgment may vary from time to time.
However, the Article limits recovery only in cases where the source of the 4
lost proceeds is illegitimate. It does not exclude compensation for bodily
harm or non-pecuniary loss arising from it when for instance a criminal is
injured while driving to the place of commission of the crime.
3. Reasons
Art. 2:103 is based on the argument that the legal order as a whole requires 5
respect and that therefore losses which are connected with some illegal or
at least illegitimate activity or source do not deserve to be protected by
the law. The protective scope of tort law does not cover the loss of a benefit
which the legal order bans. 2 An injured person can therefore only claim
such lost gains or profits which when made would have been in conformity
with the legal order.
1
In Europe the opinion is split whether in this case either full or limited or no compensation for
lost earnings should be granted. While Belgian law denies any compensation the other coun-
tries agree that at least some restricted and basic compensation for lost earnings or lost earn-
ing capacity should be granted; even full compensation of the lost earnings is allowed by Aus-
tria and probably also by England, Greece and the Netherlands; see U. Magnus, Comparative
Report, PETL Damages, no. 12 and the references there.
2
See H. Koziol, Austria, PETL Damages, no. 54.
Magnus 35
Art. 2:103 Title II. General Conditions of Liability
Illustration
9 P is earning his living by burglary. He is severely injured in a traffic accident
for which D is liable. Due to the accident P is incapacitated for some time
and claims damages for lost income for that time.
Since P's income is to be regarded as illegitimate he is therefore precluded
under Art. 2:103 from claiming the level of income he would have earned
by burglary. But he is still entitled to compensation for costs of healing or
non-pecuniary loss. Most European laws would also grant him compensa-
tion for the pure (abstract) loss of earning capacity irrespective of whether
or not he exploited it in an illegitimate way. 5
3
See fn. 2.
4
See, e.g., for Austria: OGH [1985] Entscheidungen des oÈsterreichischen Obersten Gerichtshofes
in Zivil- und Justizverwaltungssachen (SZ) 58/101; [1990] SZ 63/106; [1999] Recht der
Wirtschaft (RdW), 400; for Belgium: H. Cousy/A. Vanderspikken, Belgium, PETL Damages,
27 (no. 42, 118); for England: Burns v. Edman [1970] 2 QB 541; for France: S. Galand-Carval,
France, PETL Damages, 77 (no. 26, 79); for Germany: Entscheidungen des (deutschen)
Bundesgerichtshofs in Zivilsachen (BGHZ) 75, 368; for Greece: K. Kerameus, Greece,
PETL Damages 113 (no. 15); for Italy: Cass. civ., sez. III, [1987, I] Foro it. 493; for the Nether-
lands: M. H. Wissink/W.H. von Boom, Netherlands, PETL Damages, 151 (no. 89). Also non-
European countries follow the same rule; see, e.g., for South-Africa: Dhlamini v. Protea
Assurance Co. Ltd., (1974) 4 The South African Law Reports (S.A.) 906 (A); Shield Insurance
Co. Ltd. v. Booysen, (1979) 3 S.A. 953 (A); for the USA: G. Schwartz, USA, PETL Damages,
no. 14. Compare also fn. 2.
5
See U. Magnus, Comparative report, PETL Damages, no. 68.
36 Magnus
Chapter 2. Damage Art. 2:104
1. Introduction
The provision addresses the problem whether and when expenses which 1
were made to prevent impending damage constitute recoverable damage.
It is often doubtful if at all or to what extent such expenses are caused
when damage is merely threatening. Nonetheless under certain conditions
it appears reasonable that such expenses can be recovered also in order to
strengthen the preventive function which tort law can exercise. Art. 2:104
defines those conditions: It is necessary that damage is ± immediately and
realistically ± threatening and it is necessary that the expenses are reason-
able to prevent this damage. To the extent that these conditions are met
preventive expenses are to be recompensed.
2. Definitions
a) Expenses
The term ªexpensesº means costs or other expenditure ± for instance 2
labour ± spent for the purpose of preventing damage.
b) To Prevent Threatened Damage
Preventive expenses qualify as recoverable damage only if they are 3
intended to ªprevent a threatened damageº. Damage is threatened if there
is the real danger that damage could immediately occur if no preventive
measures are taken. The risk of damage must thus be imminent and real
from an objective point of view. An unfounded fear not supported by suffi-
cient facts that damage will happen does not invoke the provision. More-
over, expenses are only recoverable if they are spent for the prevention of
specific damage and not for other unrelated purposes. However, even
where the damage cannot be wholly avoided measures aimed to reduce its
amount would fall within this Article.
c) Reasonably Incurred
Costs of preventive measures are ªreasonably incurredº when it was rea- 4
sonable to spend them in order to prevent threatening damage. Expenses
for measures which under an objective view at the time when taken are,
for example, unable or unnecessary to prevent the impending damage are
thus unreasonable.
d) Recoverable Damage
The term ªrecoverable damageº is used to clarify that not every kind of 5
expense constitutes a damage that can be recovered but only such expenses
which meet certain qualifying conditions.
Magnus 37
Art. 2:104 Title II. General Conditions of Liability
3. Reasons
6 Tort law and in particular the law of damages aims not only at compensa-
tion but also at prevention of damage. This basic idea is expressly men-
tioned in Art. 10:101 sent. 2. It is in line with this aim that costs of preven-
tive measures are recoverable to the extent that they have or could have
reasonably prevented the occurrence of damage.
Illustrations
10 1. On the Rhine, D has negligently damaged P's tankship. There is a certain
danger that the transported oil will leak out. In order to prevent pollution of
the Rhine P requests firm X to lighter the tankship and store the transported
oil for few days.
1
Cf. infra fn. 3.
38 Magnus
Chapter 2. Damage Art. 2:105
2
See for Austria: H. Koziol, Austria, PETL Damages; no. 108, R. Welser, Zur Ersetzbarkeit
von Detektivkosten beim Warenhausdiebstahl, [1977] O È JZ, 646; for Belgium: Cass. 15
November 1995, [1995] Arresten van het Hof van Cassatie 1016; for England: W.V.H. Rogers,
England, PETL Damages, no. 38; for France: S. Galand-Carval, France, PETL Damages,
no. 89; for Germany: BGHZ 75, 230 (but a nominal sum of ¨ 25 can be claimed); for Greece:
K.D. Kerameus, Greece, PETL Damages, no. 39 (with slight doubts); for Italy: F.D. Busnelli/
G. ComandeÂ, Italy, PETL Damages, no.114; in the Netherlands: M.H. Wissink/W.H. van
Boom, The Netherlands, PETL Damages, no. 133. The same solution is also followed by,
e.g., South Africa: J. Neetling, South Africa, PETL Damages; no. 52; USA: G. Schwartz,
USA, PETL Damages, no. 39.
3
Jurisdictions are split when it comes to determining whether the cost of a reserve vehicle
maintained by a transportation company are recoverable: In such a case, someone who
damages one of the vehicles did not set a conditio sine qua non for the cost of buying and
maintaining the reserve vehicle, as in the example in the main text. On the other hand, the
transportation company could claim the cost of renting a reserve vehicle on the market for
the time during which the damaged vehicle is in repair. Such rental costs may be higher, and
one may argue that maintaining a reserve vehicle from the outset is more cost-effective.
Some legal systems rather compensate such costs as a negotiorum gestio or on other grounds
than tort law.
See for Austria (negotiorum gestio) OGH [1973] JBl 476 with commentary by H. Koziol;
OGH [1986] SZ 59/95; OGH [1987] SZ 60/65; for Belgium: L. Schuermans/A. van Oevelen/
C. Perseyn/P. Ernst/J.L. Schuermans, Onrechtmatige daad. Schade en schadeloosstelling
(1983±1992), [1994] Tijdschrift voor Privatrecht 1007; for England (though decided for ships
and busses only): The Mediana [1900] A.C. 113; Admiralty Comrs. v. SS Susquehanna [1926]
A.C. 655; Birmingham Corp. v. Sowsberry (1969) 113 SJ 877; for France: S. Galand-Carval,
France, PETL Damages, no. 88; for Germany: BGHZ 32, 284; BGHZ 70, 201; for Greece:
K.D. Kerameus, Greece, PETL Damages, 109 (no. 38); for Italy: F.D. Busnelli/G. ComandeÂ,
Italy, in J. Spier (ed.): Unification of Tort Law: Causation (2000) 86; in the Netherlands: HR
4 October 1957, NJ 1958, 12; HR 31 October 1959, NJ 1959, 29. The same solution is also
followed by, e.g., South Africa: J. Neetling, South Africa, PETL Damages, no. 52 while for
instance US law denies a claim for (part of) the ongoing maintenance costs, see G. Schwartz,
USA, PETL Damages, no. 38.
Magnus 39
Art. 2:105 Title II. General Conditions of Liability
Comments
1. Introduction
1 Although the Principles are generally concerned with substantive law rules
only so that a unification of procedural law is clearly outside their scope,
nonetheless the specific procedural aspect of proof of damage has been
included as well. The reason for this is the importance of this matter on
the one hand and the existence of at least one uniform rule in this field on
the other. Firstly, therefore Art. 2:105 starts with the rather self-evident
rule that the normal ± national ± procedural standards apply. But, secondly,
where it would be too difficult or too costly to prove the exact amount of
the damage there the court is allowed to estimate the amount.
2. Definitions
a) Damage
2 The notion ªdamageº is used here as throughout the Principles and com-
prises immaterial as well as material harm 4.
b) Normal Procedural Standards
3 These are the standards which the national courts apply when assessing the
precise amount of damage. These standards vary considerably, at least in
formal terms. In some systems they require the judge to be fully convinced
(ªnext to certaintyº) that damage of a particular extent has occurred; 5 in
others probability or even overweighing probability (ªmore likely than
notº) suffices 6 .
c) Proof Too Difficult or Too Costly
4 Proof of the exact damage may be too difficult if even extended expert evi-
dence could not clarify the precise extent of the damage with reasonable
certainty. Proof is too costly if the costs of expert or other evidence are
out of proportion to the damage itself, namely almost as high as the
damage or even higher.
3. Reasons
5 The reason for this rule is twofold: it is its first purpose to clarify that the
matter of proof and evidence as a whole is outside the scope of the Princi-
ples. This part of the law is generally governed by the lex fori unless unified
by other instruments. Its second purpose is to formulate a uniform rule for
4
See also the Commentary to Art. 2:101, in particular no. 2±4.
5
For instance under Belgium law: see L. Schuermans/A. van Oevelen/C. Perseyn/P. Ernst/J.L.
Schuermans, Onrechtmatige daad. Schade en schadeloosstelling (1983±1992), [1994] Tijd-
schrift voor Privaatrecht, 977; also under German law: BGHZ 53, 245; BGHZ 61, 169; BGH
[1993] NJW 935.
6
This is the prevailing view for instance in England: see, e.g., Hotson v. E. Berkshire H.A.
[1987] A.C. 750 and in the USA: see G. Schwartz, PETL Damages, no. 17.
40 Magnus
Chapter 2. Damage Art. 2:105
one specific aspect which is dealt with uniformly in most countries: where
the strict proof of the extent of the damage is too difficult or too costly
though it is certain that some damage has been suffered there the court is
entitled to estimate the extent of that damage.
Illustration
P, a 20 year old student of chemistry suffers severe brain injury in an acci- 9
dent for which D is liable. Due to the injury P is unable to finish his studies
7
See § 273 Austrian Code of Civil Procedure.
8
See § 287 German Code of Civil Procedure.
9
H. Cousy/A. Vanderspikken, Belgium, PETL Damages, no. 67.
10
W.V.H. Rogers, England, PETL Damages, no. 52.
11
S. Galand-Carval, France, PETL Damages, no. 56.
12
K. Kerameus, Greece, PETL Damages, no. 6.
13
F.D. Busnelli/G. ComandeÂ, Italy, PETL Damages, no. 30.
14
M.H. Wissink/W.H. van Boom, The Netherlands, PETL Damages, no. 99.
15
J. Neethling, South Africa, PETL Damages, no. 27.
16
G. Schwartz, USA, PETL Damages, no. 18.
Magnus 41
Art. 2:105 Title II. General Conditions of Liability
42 Magnus
Chapter 3. Causation Art. 3:101
Chapter 3. Causation
Introduction
2. Overview
The chapter is divided into two sections: 1) the conditio sine qua non 2
(csqn) 2 and qualifications and 2) the scope of liability. Many intensive dis-
cussions lie behind this approach.
Comments
Only in Belgium is csqn probably the sole causal criterion, but the outcome 1
of cases does not seem significantly different compared with other legal sys-
tems. According to some doctrine and case law, the same holds true for
France.
In Austria causation is considered to be merely csqn. The scope of the liabi- 2
lity is treated as a totally unrelated issue. 3 Mixing them up is regarded as
rather confusing and doctrinally wrong. In most other legal systems the
scope of liability is treated as a part of causation. The United States has,
however, vacillated in its approach to this question.
For practical purposes the difference between the approaches seems of 3
very limited importance.
The Group has sought a compromise between the contrasting views, in that 4
each issue is dealt with in a separate section, but the sections are contained
1
J. Spier (ed.) Unification of Tort Law: Causation (2000, hereafter cited as PETL Causation).
See also Ch. von. Bar, The Common European Law of Torts II (2000) no. 411 et seq.
2
Also called: cause in fact, but-for test, equivalence theory.
3
This view is shared by several other members.
Spier 43
Art. 3:102 Title II. General Conditions of Liability
in the same chapter. By doing so, we stress first that csqn is, with a few
exceptions discussed below, a prerequisite for liability. If this test is not
met, that is the end of the story.
5 If, on the other hand, an activity is a csqn of a loss (as defined in Art. 3:101)
the important question arises: what is the extent of liability. Or, in other
words, which losses are to be attributed to the activity and, by the same
token, borne by the liable person. In most cases the latter question can be
answered quite easily, as there is (are) only one or a very few utterly ªnor-
malº consequences, e.g., damage to a car after a collision. In those day-to-
day cases, all such losses will have to be compensated, at least as a general
rule. So for practical purposes the attribution rule serves as a tool to limit
the scope of liability.
6 Art. 3:101 is in line with the general rule on causation of the Working
Team on Extra-Contractual Obligations 4. Yet, the latter is going to intro-
duce a specific rule on ªcollaborationº. 5 Participation, instigation or mate-
rial assistance in causing legally relevant damage is regarded as a cause of
the loss.
7 No doubt this rule can be very useful, e.g. in case of participation in violent
demonstrations. Yet, it is not so easy to draw the borderline of cases where
liability should be established and where not. Besides, Art. 9:101 (a) tackles
the issue, seen from the angle of solidary liability. Our Art. 3:101 is open
enough to enable the court to establish liability if the participation, instiga-
tion or assistance fall within the scope of Art. 1:101 para. 2. In those cases,
it is by no means a giant step to regard them as a cause in the sense of Art.
3:101.
In case of multiple activities, where each of them alone would have caused
the damage at the same time, each activity is regarded as a cause of the vic-
tim's damage.
Comments
1. Introduction
1 This Article is about activities the result of which is the occurrence of
damage at one, single time. In those cases one could argue that neither of
the activities is the csqn or that all of them are. This seems a rather seman-
tic discussion. Art. 3:102 tries to avoid it in saying that ªeach activity is
regarded as a cause of the victim's damage.º
4
See General Introduction, no. 40.
5
Art. 4:102 in their latest version (June 2004).
44 Spier
Chapter 3. Causation Art. 3:102
If each activity would have caused the entire loss, even in the absence of the 2
others, it seems rather obvious that the persons liable for the respective
activities are liable in full. That is the meaning of Art. 3:102. This is entirely
in line with the common core.
It should be stressed that it is unimportant whether or not the activities 3
took place at the same time; what is decisive is that they caused the damage
at the same time. This can be shown by a somewhat far-fetched example.
D1 launches a long distance missile, and D2 a short distance one. Both mis-
siles hit P's premises at the same time. The launching did not take place at
the same time, whereas the missiles hit the target exactly at the same
time. The latter is decisive.
It follows from the above that there is some overlap between this Article 4
and Art. 9:101 para. 1 (b). Unlike Art. 9:101 (b), which has a broader
scope, Art. 3:102 requires ªdamage at the same timeº. The latter is consis-
tent with the reasoning behind a different approach in Art. 3:102 6 on the
one side and the Art. 3:103 ± 3:106 on the other side 7.
It will not always be clear whether or not the conditions of Art. 3:102 are 5
met. At the end of the day, it is a matter of evidence. This gives manúuvr-
ing room for the court either to solve such cases by means of procedural
law (i.e. one party has the burden of proof), or to take it that the time dif-
ference, if any, is so small that it is assumed that the activities caused the
loss at ªthe same timeº.
Whether or not every single activity would have caused ªthe damageº, is 6
another way of saying that the damage must be ªthe sameº. So reference
is made to the commentary on Art. 9:101 para. 3 (no. 4) for its meaning.
Apart from obvious cases (D1 and D2 set fire to a house at the same
time; D1 and D2 collide at the same time with P, and D1's and D2's speed
was such that each collision would have caused a total loss), it is, unfortu-
nately, impossible to be more specific in this field. 8 In the commentary of
Art. 9:101 several examples illustrate the kind of cases we have in mind.
We trust that on the basis of text and commentary, a coherent system can
be developed.
In case of subsequent activities as defined in Art. 3:104, more often than 7
not the damage was already done by the first activity. If D1 collides with
his forerunner P, whose car is a complete loss, the damage is done. If P's
car is subsequently hit by D2, there is no additional damage 9. If, on the
other hand, D1 and D2 hit P's car at the same time, and P's car would
have suffered a total loss by each single accident, P's damage is, for the pur-
pose of this Article, ªthe sameº if we look at D1 and D2.
6
As the previous footnote.
7
See infra no. 8 et seq.
8
Ch. von Bar (supra fn. 1) no. 415 apparently faced the same problem.
9
Cf. infra Art. 3:104 no. 3.
Spier 45
Art. 3:102 Title II. General Conditions of Liability
2. Proportional Liability
8 The idea behind Art. 3:103, 3:105, 3:106 and to some extent Art. 3:104 is
that a liable person has to compensate the loss he may have caused. That
is to say: he should not be liable for a loss that partially is or may be caused
by other activities, irrespective whether these are caused by others, the vic-
tim or natural events.
9 This approach is rather innovative, as it is not (entirely) in line with the
common core. So it requires justification. All the more so as, seen from a
certain angle, it obviously is detrimental for the victim. 10 But arguably, the
latter argument is just rhetoric. After all, it seems to presuppose that the
victim's interests should prevail. In the Group's view such an approach
would be insufficiently balanced. Each solution is inevitably harsh for
either the liable person, the victim or sometimes even for both.
10 One could argue that there are hardly compelling reasons to make a choice
either way whose interests should prevail. In this reasoning, the idea of fair-
ness should depend on the merits of every single case and to some extent
also tradition. More specifically, one might say that it is far from obvious
that the different heads of damages, or of liability ± in particular strict,
vicarious 11, mere fault or grave fault ± are to be treated similarly. One
could also imagine that the magnitude of the harm, the number of tortfea-
sors or of victims might play a role.
11 To the best of our knowledge no legal system has drawn up specific and
detailed rules to cope with just mentioned factors in this context. Doing so
would be a Herculean task. And more importantly, it is very much open
to debate whether such a system would be sufficiently practical. It would
probably give rise to a tremendous amount of litigation.
12 So we felt that we could hardly escape from making a clear choice, irre-
spective of factors such as those mentioned above. As a starting point, we
have adopted proportional liability. With a few, though important, excep-
tions discussed below, it does not appeal to the Group that a tortfeasor
has to compensate a loss not caused by him; i.e. an activity that is not
even a csqn of the loss.
13 In this context, regard is to be had to the following. The borderline
between liability and non-liability is in many instances and cases rather a
grey zone. That is true for the Principles, for legislation and case law alike.
In that grey area, which probably covers a large number of day to day
cases, the justification for establishing liability is almost as convincing as
the opposite would have been. Moreover, coincidence (or bad luck), either
on the side of the victim or of the tortfeasor, often play a considerable role.
10
It should be borne in mind that Art. 3:103 para. 2 is quite a step for the common law. If the
likelihood is over 50% the victim is worse off; instead, he ªgainsº if it is below 50%. See this
article and Art. 3:106.
11
In the sense of Chapter 6.
46 Spier
Chapter 3. Causation Art. 3:103
Seen from this angle, and depending on the merits of the case at hand, it
might be counter-productive for the victim to opt for solidary liability.
After all, if the court would take the view that solidary liability would be
unfair in that specific case, it might feel reluctant to establish liability, as
that would be the only feasible way to avoid the harshness of undesirable
solidarity in that case.
It has been argued that proportional liability should in principle, and, sub- 14
ject to exceptions, apply as well to individual losses caused by two or
more activities which are insufficient causes. After all, so was the argument,
an insufficient cause is only a cause in part. The prevailing view, however,
was that proportional liability should not apply to such cases, but only in
exceptional cases.
(1) In case of multiple activities, where each of them alone would have
been sufficient to cause the damage, but it remains uncertain which one in
fact caused it, each activity is regarded as a cause to the extent correspond-
ing to the likelihood that it may have caused the victim's damage.
Comments
1. Introduction
1 Art. 3:103 deals with alternative causation. It is based on the concept of
proportional liability. For the justification see above 12. Prima facie, this
may seem rather in conflict with the solution adopted in Art. 3:102. We
do not believe it is.
2 The obvious difference between Art. 3:102 on the one hand and Art. 3:103
on the other hand is the following. Application of Art. 3:102 requires that
each activity has caused the loss, or at least would have caused it, if one dis-
regards the other activity or activities that took place at the same time. Art.
3:103 is about uncertainty which of several activities has caused the victim's
loss in full. In other words: there is a csqn, but it is unknown which one it is.
3 We see no compelling reason to justify why someone should pay for the
whole of a loss which he possibly (and in case of Art. 3:103 para. 2 most
probably) did not bring about. On the other hand, it would be harsh to
leave the victim empty-handed.
4 The Group realises, of course, that in rare cases proportional liability may
give rise to a tremendous amount of litigation. Apart from the fact that
this may be an incentive for the defendant to settle the case(s) or for the
plaintiffs to sue in only one case, thus saving money, this is not an issue of
substantive law. If it is considered to be (too) problematic, procedural law
should provide adequate means to cope with this issue.
2. Paragraph 1
5 The first paragraph presupposes:
. multiple activities, and
. each of the activities would have been sufficient to cause the damage
(i.e. the entire damage); but
. it remains unknown (i.e. it cannot be proven to the required legal stan-
dard) which activity actually caused the damage.
6 Under those circumstances each activity is regarded as a cause to the extent
corresponding to the likelihood that it may have caused the damage. This
means that the person liable for the respective activities has to pay that cor-
responding share.
7 D1, D2 and D3 go hunting in a wood frequently visited by walkers. Inde-
pendently from each other, they negligently try to bring down a bird and
consequently shoot in the same direction. Instead one shot hits P; the other
shots just miss P. It is unknown whether the fatal shot was fired by D1, D2
12
Supra Art. 3:102 no. 8 et seq.
48 Spier
Chapter 3. Causation Art. 3:103
or D3; they did not act in concert. 13 In this case the activity of each hunter
fulfils the requirements mentioned above. So each of them is liable for
one third of the loss. 14
A mountain climber is hurt by a falling rock. At the same time a second 8
rock nearly hits him. One falling rock is caused by D1's negligence; the
other by D2's negligence. Both D1 and D2 are liable to the extent corre-
sponding to the likelihood that ªtheir stoneº may have caused the victim's
damage. In this particular case this likelihood is 50%, so D1 and D2 are
each liable for that percentage.
In particular in cases of mass torts, but also in other cases (e.g. if the precise 9
number of hunters 15 is unknown; e.g. because one or more may have disap-
peared from the scene) it may be impossible to prove the likelihood. Again,
this primarily is a matter of procedural law. Yet, as a general rule, the bur-
den of proof on the victim's shoulders should not be too heavy. If the
defendant(s) cannot identify the other missing persons (potentially) liable,
the court may well ignore those others and apportion the loss between the
known defendants in accordance with the likelihood that the damage might
have been caused by each of them.
3. Paragraph 2
The main focus of the second paragraph is on the situation where it is clear 10
that from a ªglobalº point of view there is a causal link between the
damage suffered by a number of victims and the activities of a number of
potential defendants, but it is impossible that the entire damage of all vic-
tims has been caused by each single tortfeasor.
Twenty manufacturers (D1 ± D20) negligently manufacture a drug. 16 D1 11
has a market share of 51%; D2 of 15% and the remaining (D3 ± D20)
have small market shares. The drug causes serious injury and affects
25.000 consumers. It is not possible to identify the source of the drugs
used by individual consumers. It is extremely unlikely that the drug
manufactured by one of the manufacturers caused the injury of all vic-
tims. According to para. 2, D1 is liable for 51%, D2 for 15% and the
rest for their respective market shares of the victim's damage. 17 It is
assumed here that the likelihood corresponds with the market share. If
that is not the case, a similar yardstick has to be found to attribute the
loss.
13
See for the latter Art. 9:101 para. 1 (a).
14
This case is solved in a different way in various jurisdictions; see J. Spier/O. Haazen, Com-
parative Conclusions on Causation, PETL Causation, 150 et seq.
15
In our view it is no requirement that their names are known.
16
We leave aside that negligence will rarely be a requirement in this type of cases in view of the
rules on product liability.
17
If there is no adequate basis to establish the marketshare(s) of several of the remaining man-
ufacturers, their part is presumed to be equal; see Art. 3:105.
Spier 49
Art. 3:104 Title II. General Conditions of Liability
Comments
1. Introduction
1 Art. 3:104 makes a distinction between two situations: 1) where damage
has materialised as a result of the activity in question, even though it would
in any event have occurred later as a result of some other activity and 2) on
the other hand where the later activity causes additional, aggravated, or
18
In case of solidary liability the plaintiffs will undoubtedly sue the manufacturer whose sol-
vency is best. This does not need to be a manufacturer with a considerable market share.
19
Though it is not universally applied in the United States: Dan B. Dobbs, The Law of Torts
(2000) 430 et seq.
20
See J. Spier/O. Haazen, Comparative Conclusions on Causation, PETL Causation, 150 et seq.;
and W.V.H. Rogers, Winfield and Jolowicz on Tort (2002) no. 6.11 and 6.12.
50 Spier
Chapter 3. Causation Art. 3:104
continuing damage. Entirely in line with the above, we take the view that it
would be inappropriate to oblige someone to compensate damage he did
not cause. If and to the extent an activity already led to a definite and irre-
versible loss, and a subsequent activity does not increase the loss, the latter
is not a csqn for the loss. So why should their ªactorº be responsible?
2. Paragraph 1
According to the first paragraph, a subsequent activity which alone would 2
have caused the same damage, if one ignores the already existing loss, has
to be disregarded. However, this rule only applies to cases of already exist-
ing definite and irreversible losses.
D1 collides with P's car. After the accident the car is a total loss. A few 3
minutes later D2 crashes into the remains of the car. The second accident
would equally have caused a total loss, were it not that the car already
lost its value. D1 has to compensate the full loss, whereas D2 does not
have to pay compensation. In this particular case P's damage was definite
and irreversible after the first accident.
D1 poisons a horse in a stable with a slowly working poison (say the horse 4
would die within 24 hours). Before the poor animal actually dies, D2 sets
the stable afire. The horse perishes in the flames. Since Roman times 21,
this case has been disputed. 22 One could argue that D1 is the csqn of the
loss; it could equally be argued that D2 is, whereas some even take the
view that both D1 and D2 are. It could even be argued that neither D1,
nor D2 have set a csqn. Art. 3:104 para. 1 provides some manoeuvring
room for the court. One might say that D1's act definitively and irreversibly
ªcausedº the loss. After all, no further activity was needed to cause the
horse's death. So, as a general rule we may take it that, in financial terms,
the horse lost its value. On the other hand, D2 has shortened the life of
the horse, but in the example this has no financial impact.
D is the architect of P's house. Due to miscalculations, the house collapses. 5
Three months later, the area is struck by an earthquake. It would have
destroyed the house, if it would still have been there. The earthquake, if
relevant, is an event within P's sphere (Art. 3:106). As a general rule D
will be liable in full. The earthquake does not have any impact on his liabi-
lity. However, depending on the merits of the case and the compelling
demands of justice, it could be argued that D is only liable in part. After
all, at least with the benefit of hindsight, the value of the house, at the
very moment of its collapse, was only limited, i.e. it still had only three
months to go. We believe that such a reasoning, though perfectly sensible
as such, may stimulate litigation. Moreover, it would be beneficial to the
tortfeasor to delay settling hoping that some future cause may reduce his
liability. Finally, in the architect case ± and in so many others ± it is hardly
appealing if D could escape from full liability.
21
D. 9.2.51.pr. 2.
22
See J. Spier/O. Haazen, Comparative Conclusions on Causation, PETL Causation, 128 et seq.
Spier 51
Art. 3:104 Title II. General Conditions of Liability
3. Paragraph 2
8 A subsequent activity is taken into account if it has led to additional or
aggravated damage. This rather speaks for itself. After all, this activity is a
csqn for that loss.
9 D1 poisons a horse in a stable with a slowly working poison. After the poi-
soning, the horse still has a certain value, e.g. because it could still partici-
pate in a race and the owner would at least get a starting fee. D2 then sets
the stable on fire, which kills the horse. In such a case D2 would be liable
for the latter fee. 23
10 This leaves unaffected that the first activity will often be a csqn for the loss
too. Whether or not its ªauthorº will also be liable for the additional or
aggravated loss, depends on Art. 3:201 (the scope of liability).
11 D1 collides with P's car. The loss amounts to 100, whereas the value of the
car is 200. Subsequently D2 hits P's car. The second accident caused a
further loss of 50. D2 is liable for 50. D1 for 100 and perhaps ± depending
on Art. 3:201 ± for 150. P cannot recover more than 150 in total, of course.
12 Art. 3:104 para. 2 does not apply in the following type of cases. X dies as a
consequence of a motor-accident for which D is liable. After the fatal acci-
dent X's house is blown up by a terrorist. Without the accident, X would
have been at home at the time of the explosion, which would equally have
killed him. The terrorist is not liable for the loss suffered by the family
members as mentioned in Art. 10:202 para. 2, which follows from Art.
3:104 (1). After all, this is not a case of continuing damage. Only the motor
accident caused X's death. One cannot kill someone who is already dead.
4. Paragraph 3
13 The Group opts for a similar solution in case of continuous damage,
although the second and further tortfeasors are only liable for the damage
which occurs from the time of their activity.
23
According to Art. 3:201 D1 will probably be liable for this fee too, in that the owner can only
get compensation once. See Art. 9:102 for the recourse between D1 and D2.
52 Spier
Chapter 3. Causation Art. 3:104
In our view, continuing damage (e.g. loss of profit or loss of income due to 14
disability, harm caused by continuing noise) occurs, as it were, from day to
day. So it has to be distinguished from definite and irreversible damage,
mentioned in para. 1, as for example injury to the value of property. Seen
from this perspective, each tortfeasor involved is a conditio sine qua non
for the loss as from the very moment that his activity impaired the pro-
tected interest. This presupposes that each activity would have caused that
damage, if the other activity or activities are disregarded. This approach is
in line with the reasoning behind Art. 3:102; see above. 24
P is seriously injured by a car accident caused by D1. It would take him a 15
year to recover. After one week in hospital, he becomes the victim of me-
dical malpractice by D2. It would take (a) 26 or (b) 104 weeks to recover
from this malpractice. 25 P's loss of income is ± in the Group's view ± a con-
tinuous loss. In the example mentioned supra (a) D1 is liable for 52 weeks.
As a general rule, and depending on Art. 3:201, in the example mentioned
supra (b) D1 is liable for 105 (104 + 1) weeks. D2 is liable for 26 or 104
weeks. However, it is obvious that P's loss has to be compensated only
once. For the recourse action by the tortfeasor who paid the entire loss
against the other tortfeasor 26, see Art. 9:102.
Due to an activity for which D1 is liable, P becomes disabled for the rest of 16
his life. According to Art. 10:102, P could opt for a lump sum payment
instead of periodic payments. 27 Assume P did so before D2 appeared on
the scene; D2's activity ± which occurred five years later ± would equally
end up in life time disability, if one would ignore the already existing dis-
ability caused by D1. Does P's settlement with D1 change D2's position?
We tend to answer the question in the negative. For practical purposes, in
most cases, it is of no importance for P. After all, P has already got com-
pensation. 28 Yet, it is important for D1's possible recourse on D2. Accord-
ing to Art. 9:102 para. 1 recourse ± obviously ± requires solidary liability.
To achieve this result, one would have to argue that the mere fact that a
loss has been settled, does not necessarily mean that is has become ªdefi-
nite and irreversibleº in the sense of para. 1.
24
Admittedly, it could be argued that loss of income is not continuing damage but loss of earn-
ing capacity, thus being a loss suffered at once. For the reasons set out under 13, we prefer
to perceive it from a different angle. All the more so as it will often be unclear for quite
some time whether and when the victim will be able to start working again, which may make
it difficult to apply the concept of loss of earning capacity. Moreover, it is very unusual that
this type of cases is settled soon. It rarely happens that the loss before the settlement is calcu-
lated on the basis of loss of earning capacity. After all, why should it, as it can easily be calcu-
lated very accurately. Finally, in several legal systems victims are entitled to a rent; see U.
Magnus, Comparative Report on the Law of Damages, in U. Magnus (ed.), Unification of
Tort Law: Damages (2001) 185 (no. 89).
25
In other words: P will be in good health again after 52 or 105 weeks as from the first accident.
26
In this particular case, D2's liability is based on contract, but that does not change the scene.
27
The court is not obliged to award them.
28
That is not necessarily true; it would be important for P if, e.g., D1 goes bankrupt after the set-
tlement but before payment.
Spier 53
Art. 3:105 Title II. General Conditions of Liability
17 Arguing the other way around would mean that D2 could escape from
recourse by D1 due to D1's settlement with P. This would obviously be dif-
ficult to justify.
18 It might well turn out at the time of D2's activity that the settlement with P
is insufficient, e.g. because inflation is much higher than anticipated or due
to a detrimental change of social security benefits; it is equally possible that
D1 is unable to pay the amount of the settlement. If D2 could disappear
altogether, all the odds would be against P. We see no ± let alone compel-
ling ± justification why D2 should not be liable for the difference between
P's loss, calculated at the time of D2's activity, and the settlement. Such
questions cannot be answered, except by reference to national procedural
laws.
19 It follows from the observation above under no. 12 that para. 3 does not
apply if an earlier activity already caused the victim's death.
20 Art. 3:104 leaves some discretion to the courts to reach ± what they per-
ceive 29 ± equitable and reasonable results by applying the concept of
damages (Chapter 10). This can be illustrated by the following case. P
needs two legs to execute his work. Due to an accident, caused by D1, he
loses one leg. So P becomes unfit for his work. Yet, he can be retrained
for another job. His loss of income is the difference between his former
and his new income. 30 After the accident, P's remaining leg is lost in a sec-
ond accident for which D2 is liable. D2 is obviously liable for the loss of
income caused by the unfitness to execute P's new job. 31 According to
Art. 3:201 the same may hold true for D1.
21 The meaning of ªcontinuing damageº is explained under 13 above. The dis-
cussions on causation where based on the questionnaire which can be
found in the Group's volume on Causation. 32 It follows from the compara-
tive report 33 that the (majority of the) Group was in favour of a rule as
put forward by Art. 3:104. So, its text was actually based on those discus-
sions. In the forelast meeting of the Drafting Committee, a few members
argued to narrow down its meaning, i.e. by restricting it to cases such as
continuing noise by two or more separate factories, which obviously is a
combination of continuing damage and a continuing tort.
29
After all, as opinions are (slightly) divided on this point, the same holds probably true for the
question what is equitable in this type of cases.
30
On top of that P might have a claim for the increased chance that he might become disabled
by a future accident which affects his remaining leg; see Art. 10:202.
31
At least to the extent not yet compensated; see previous footnote.
32
PETL Causation, 3 et seq.
33
J. Spier/O. Haazen, Comparative Conclusions on Causation, PETL Causation, 141 et seq.
54 Spier
Chapter 3. Causation Art. 3:105
Comments
Cases of multiple activities which together cause one or more losses often 1
give rise to difficulties. The most difficult questions probably arise in the
area of causation. More often than not, the contribution of every single
activity will be unclear. Art. 3:105 tries to cope with this problem.
It only comes into play ± of course ± if the contributions are unclear. If it is 2
likely that two or more activities have contributed to the loss, whereas each
of their contributions is ªminimalº, it is presumed that their contribution is
equal. So, if A and B have contributed to a loss, and 1) it is clear that
neither of their contributions have caused the entire loss, nor 2) a deter-
minable part thereof, they will be liable for 50% each.
Suppose a loss is caused by D1, D2, D3 and D4. D1's contribution is at 3
least 60%. The remaining loss is caused by D2, D3 and D4. Yet, the
amount of their respective and D1's ªremainingº contributions cannot be
determined for 40% (after all, D1 has caused at least 60%, so he is liable
for that part anyway; this means that 40% remains). In this example, D1,
D2, D3 and D4 are liable for 10% (1/4 of 40%). So, ultimately, the loss
has to be borne by D1 for 70% (60 + 10), and for 10% by each D2, D3
and D4. Thus the majority of the Group.
In the view of some members this Article should only be applied if the con- 4
tributions of all members are small and unclear at the same time. In this
view, it only comes into play in the following type of cases. 100 manufac-
turers have put a ± as it turns out defective ± drug on the market. They all
have similarly small market shares. 20,000 persons fall ill due to this drug.
It is extremely unlikely that the drug of anyone of them has caused the ill-
ness of all victims. In such a case, each manufacturer is liable for 1% of
the loss of each victim.
Yet, the majority of the Group would also apply this Article in the follow- 5
ing type of cases. D 1 ± D 100 have put a defective pharmaceutical product
on the market. The market shares of D 1, 2 and 3 are more or less known;
they are 25, 15 and 10 %. The remaining market share (50%) is distributed
among D 4 ± 100 34 but at the time of the occurrence of the loss, it is not
possible to estimate the individual shares. It is only known, that they were
rather small manufacturers. In such a case, the contributions of D 4 ± 100
will be presumed to be equal. That means that each will be liable for 50/
97%.
The example discussed above under no. 4 and 5 is very similar compared 6
with the one discussed in relation to Art. 3:103. According to Art. 3:103
34
The market share may be the decisive factor in this field; see Art. 3:103 para. 2 and the com-
ment above.
Spier 55
Art. 3:106 Title II. General Conditions of Liability
Comments
1 Art. 3:106 is about a loss that may have been caused by one or more liable
third parties 35 or may lie in the sphere of the victim. In such a case, the vic-
tim has to bear the loss to the extent that the cause may lie in his own
sphere. It should be borne in mind that the cause in the victim's sphere, in
the sense of this Article, should be a csqn of the loss, in case it would
have materialised.
2 A cause lies in the first place in the victim's sphere, if it is caused by his
activity. Such cases can often be tackled by Art. 8:101 too. But, as we will
demonstrate below, this Article may be applicable in those instances as
well.
3 In line with Art. 8:101 para. 3, a cause lies also in the victim's sphere if it is
attributable to his auxiliary.
4 Thirdly, and unlike Art. 8:101, natural events, such as earthquakes, storms,
heart attacks or other diseases, unrelated to activities by third parties, may
qualify as such.
5 If one of these activities, occurrences (including natural events) or circum-
stances may have caused the damage, the victim has to bear his loss to the
extent that such a cause may lie within his own sphere. 36 This does not fol-
low from Art. 8:101; this kind of issues is dealt with by this chapter. Art.
3:106 is the complement of Art. 3:103.
35
Caused by one more liable third parties means that those parties can be held responsible
according to Art. 1:101, or ± as the case may be ± one or more on that basis and one or
more others on another basis, be it of a contractual nature or not.
36
Here we face again the issue discussed above supra Art. 3:104 para. 2.
56 Spier
Chapter 3. Causation Art. 3:106
37
J. Spier/O. Haazen, Comparative Conclusions on Causation, PETL Causation 153.
38
See e.g. W.V.H. Rogers, Winfield & Jolowicz on Tort (2002) 218 et seq.
Spier 57
Art. 3:106 Title II. General Conditions of Liability
58 Spier
Chapter 3. Causation Art. 3:201
Comments
1. Introduction
For practical purposes, every (European) legal system (under review) 1
accepts that the mere fact that a conditio sine qua non-relation between a
loss and an activity is established, does not mean that every and all
subsequent losses have to be compensated by the liable person. As already
mentioned above, this seems true even for Belgium and France 45. After all,
the outcome of court cases in both countries is not significantly different,
compared with that of other countries under review.
45
Art. 3:101 no. 1.
Spier 59
Art. 3:201 Title II. General Conditions of Liability
2 The real difference between the various legal systems seems to be that
some perceive the issue dealt with in Art. 3:201 as part of causation,
whereas others perceive it as an unrelated legal vehicle. Yet, (theoretically
speaking) with the just mentioned exceptions, every legal system recognises
± of course ± that the sky cannot be the limit. So, for practical purposes the
differences are very limited.
3 We have sought to avoid discussions of this kind by distinguishing between
conditio sine qua non (Section 1) and the scope of liability (Section 2),
which are put together in Chapter 3 (causation).
46
178 F. Supp. 2d 198 (E.D.N.Y.2001).
47
See J. Spier/O. Haazen, Comparative Conclusions on Causation, PETL Causation, 134 et seq.
This is not to say that every single factor plays a role in every jurisdiction. E.g., (b) is of no
importance in Belgium. See also the reports by H. Koziol in J. Spier (ed.), The Limits of
Expanding Liability (1998) 25 et seq., W.V.H. Rogers, 37 et seq. and J. Sinde Monteiro, 51
et seq.
60 Spier
Chapter 3. Causation Art. 3:201
The latter can be illustrated by the well known egg shell-cases. This type of 8
case is relatively rare and by the same token not really foreseeable. Yet,
such a loss will be attributed to the liable person. 48
The relevant factors may well point in different directions. For example, 9
personal injury deserves a high protection (Art. 2:102 para. 2). Strict liabi-
lity (Art. 5:101) may be a reason for some reluctance in establishing a
very broad scope of liability. If personal injury is caused by an activity as
mentioned in Art. 5:101, this may be therefore a reason for cautious and
liberal attribution at the same time. In those ± and many other ± cases,
the relevant factors have to be weighed against each other. The observa-
tions under no. 7 and 8 above may serve as a guideline.
Art. 3:201 gives considerable discretion to the courts. 10
48
See PETL Causation 17, 28, 45, 58, 70, 85, 98 and 124; slightly different p. 114. The Draft Arti-
cles of the Working Team on Extra-Contractual Obligations (see supra General Introduction,
no. 40) explicitly address this issue in the sense mentioned in the text.
Spier 61
Art. 3:201 Title II. General Conditions of Liability
one or more passengers; with some bad luck the loss may amount to, say, a
couple of million euros. Suppose D collides with a taxi. It carries three cap-
tains of industry, who each earn ¨ 25 million on a yearly basis. Due to the
accident, they become unfit for their work for many years. This loss seems
rather out of proportion with the normal consequences of a collision. 49 So,
depending on other relevant factors too, it arguably could not be entirely
attributed to D.
15 If a (new) loss is caused long after the event, this may urge for a somewhat
cautious attribution. E.g., P loses his leg as a consequence of a traffic acci-
dent. Many years later, he is unable to leave his house quickly enough dur-
ing a fire. 50 The national legal systems obviously struggle with this type of
case. One could imagine that different approaches were to be adopted,
whereas the outcome will also depend on the nature of the loss and the
basis of liability.
b) The Nature and the Value of the Protected Interests
16 The nature and the value of the protected interest refers to Art. 2:102. In
that Article, we have given a kind of hierarchy of ªinterestsº. It rather
speaks for itself that the more value is attached to an interest, the wider
the scope of attribution will generally be. The thin skull-rule may serve as
an example, acknowledged as it is in (almost) all legal systems. 51
c) The Basis of Liability
17 The basis of liability may also play a role, in that wide attribution seems
more appropriate if liability is based on fault compared with strict liability.
As already indicated before, all relevant factors were to be taken into
account.
18 If a liability, either based on fault or on Art. 5:101 (strict liability) aims to
protect specific interests, as a general rule we may take it that those losses
will have to be compensated.
d) The Ordinary Risks of Life
19 The ordinary risks of life is a somewhat amorphous concept. It may come
into play if, say, P is involved in a car accident for which D is liable. P
only suffers slight injury. After a couple of days, he decides to consult his
physician. On the way to this physician he is again hit by a car. The latter
accident may well be considered as a consequence of the ordinary risks of
life, in that everyone runs the risk to become involved in an accident. The
second accident seems to be totally unrelated to the first one in any sense
which should be relevant to the imposition of liability. If, on the other
hand, the first accident has increased the chance of becoming involved in
the second accident (e.g. the injury is quite serious; the victim has to trans-
49
See PETL Causation case 1.
50
See case 6 in: J. Spier (ed.), The Limits of Expanding Liability; and PETL Causation case 15.
51
See PETL Causation in relation to case 2.
62 Spier
Chapter 3. Causation Art. 3:201
ported to a hospital straight away at high speed; on the way to the hospital
the ambulance is hit by a car) the latter can no longer be considered as a
normal risk of life.
There obviously is some overlap between the ªordinary risk of lifeº and 20
Art. 3:106. If, in just mentioned example, the second accident is perceived
as a cause within the sphere of the victim, Art. 3:201 (d) does not come
into play any longer.
e) The Protective Purpose of the Rule
It follows from what has been said above supra (c) that the protective pur- 21
pose of the rule plays a rather important role in relation to the scope of
attribution. If a rule clearly aims to protect against a specific loss, that loss
will only exceptionally not fall within the scope of Art. 3:201. If a rule expli-
citly aims to protect only specific interests, other losses will not fall under
the scope of Art. 3:201. However, in the latter type of cases, Art. 3:201
will often not come into play as liability will probably not be established
at all.
Spier 63
Title III. Bases of Liability
Chapter 4. Liability Based on Fault
Introduction
1
All appearing in P. Widmer (ed.), Unification of Tort Law: Fault (forthcoming 2005, hereafter
quoted as PETL Fault); in particular: H. Koziol, Austria, no. 1; I. Gilead, Israel, no. 1;
G. Schwartz/M. Green, USA, no. 1; M. Martin-Casals/J. SoleÂ, Spain, no. 1.
2
W.V.H. Rogers, England, PETL Fault, no. 1.
3
S. Galand-Carval, France, PETL Fault, no. 1: ªFault was more than a ground for tortious lia-
bility: it constituted its very foundationº).
64 Widmer
Chapter 4. Liability Based on Fault Introduction
presenting a qualified danger for people and property are made liable inde-
pendently from any blame of having been negligent or violated a duty of
care 4. In particular in those national systems which have enacted such
forms of liability in the transport sector and first of all for motor vehicles,
it can be said without any hesitation that the great majority of cases where
damage occurs and (extra-contractual) liability is at stake, are dealt with
on a basis where fault plays a marginal role, if any.
Nevertheless, fault remains an essential criterion of imputation, certainly 2
under theoretical aspects, but also for all those more or less important daily
events, where damage is caused by and to individual persons in the frame-
work of their normal activities. This explains why even in more recent codi-
fications or in drafts on national and international level 5, liability based on
fault is still put at the very entrance of tort law. The question is then only
if other criteria of imputation (such as technical or organisational risk,
respectively the idea of balancing profit and risk) are accepted as equiva-
lent or still considered as secondary and exceptional 6.
The Principles follow a concept of fault which corresponds to the largely 3
prevailing opinion in most European systems 7, namely an objective or
ªobjectivatedº notion of fault which takes as a yardstick an objective stan-
dard of conduct to which everybody has to conform, independently of his
individual capacities and which, therefore ± it may be argued ± has nothing
to do anymore with blameworthiness 8. Any deviation from this standard is
normally considered as fault; this is at least the theoretical approach, even
if ± of course ± a certain blameworthiness can be found in the great major-
4
B.A. Koch/H. Koziol, Comparative Conclusions, in B.A. Koch/H. Koziol (eds.), Unification of
Tort Law: Strict Liability (2002, hereafter cited as PETL Strict Liability) 395, and infra the
commentary to Chapter 5. Another explanation for fault-independent liability, by inverting
the perspective from the author of the damage to the person who suffers it, was offered by
some French authors, such as Starck, with the idea of ªguaranteeº (theÂorie de la garantie; see
G. Viney, Introduction aÁ la responsabilite civile, in: J. Ghestin (ed.), Traite de droit civil (2nd
edn. 1995) § 54.
5
See e.g. the Dutch Nieuw Burgerlijk Wetboek Art. 6:162/1+3; the new Civil Code of Quebec,
Art. 1457; the Swiss Reform Project 2000, Art. 41 and Art. 48 et seq. COS; the Austrian
Reform Project 2004, §§ 1292 and 1295 et seq. ABGB.
6
Infra Art. 4:101 no. 6; see also C. Canaris, Die GefaÈhrdungshaftung im Lichte der neueren
Rechtsentwicklung, [1995] Juristische BlaÈtter (JBl), 2 (16); this author considers liability based
on fault as being ªeine rechtsethische SelbstverstaÈndlichkeitº (selfunderstanding under the
aspect of legal ethics)º, therefore having ªeine gewisse rechtsethische U È berlegenheit (a higher
dignity from the viewpoint of legal ethics)º.
7
P. Widmer, Comparative Report, PETL Fault, no. 43 et seq.; see also H. Koziol, Liability
based on Fault: Subjective or Objective Yardstick? in [1998] Maastricht Journal V/2, 111 et
seq.; Ch. von. Bar, The Common European Law of Torts II (2000) no. 226 et seq.
8
Ch. von Bar (supra fn. 7), no. 235. As a matter of fact, some members of the Group would
have preferred to return to a more subjective concept of fault and a clearer distinction
between fault-based and strict liability. They consider that it is contradictory to adopt, on the
one hand, a very severe ± objective ± notion of fault, which is almost identical with that of
wrongfulness, and to be so extremely restrictive, on the other hand, in accepting forms of
(truly) objective liability, as is the case in Art. 5:101 of the Principles.
Widmer 65
Introduction Title III. Bases of Liability
ity of cases. The model for this approach is the definition of ªFahrlaÈssig-
keitº (more or less corresponding to the idea of negligence) in § 276,
para.1, 2nd sent. of the German BGB. As will be explained later on, Art.
4:102 para. 2 shows, however, that the Group ± albeit on an exceptional
basis ± has accepted the idea that there are cases where it would be unjust
and contrary to equity to apply always and under all circumstances an
immutable ªstrictlyº objective standard (see infra Art. 4:102 no. 14 et seq.).
9
This division is even stronger in the common law where intent (trespass) and negligence are
considered as separate categories rather than as two forms of a general concept of fault. See
Lord Atkin in Donoghue v Stevenson [1932] AC 562: ªThe liability for negligence, whether
you style it such or treat it as in other systems as a species of culpa . . .º.
10
See on this topic also Ch. von Bar (supra fn. 7), no. 237 et seq. (ªDegrees of Blameworthi-
nessº), in particular no. 242±243.
11
Supra Art. 3:201 no. 17.
12
Infra Art. 10:401 no. 1.
66 Widmer
Chapter 4. Liability Based on Fault Introduction
13
Swiss law is particularly rich in such experience; see P. Widmer, Switzerland, PETL Fault,
no. 8 et seq.; idem, Switzerland, PETL Strict Liability, no. 2, 3, 6 et seq.
14
See infra Art. 4:201 no. 2, 7; further the introduction to Chapter 5.
15
B. Winiger, La responsabilite aquilienne romaine ± Damnum iniuria datum (1997) 95 et seq.,
187: ªInitialement, . . . la LA [Lex Aquilia] formule avec le DID [Damnum Iniuria Datum]
une responsabilite objective pure.º; idem, La responsabilite aquilienne en droit commun ±
Damnum culpa datum (2002) 76 et seq., 220 et seq.
16
For a description of this evolution, P. Widmer, Fonction et evolution de la responsabilite pour
risque, 76 [1977] Zeitschrift fuÈr Schweizerisches Recht (ZSR) I, 417 et seq.; idem, Le visage
actuel de la responsabilite civile en droit suisse, in: DeÂveloppements reÂcents du droit de la
responsabilite civile (1991) 7 et seq.; see also: Ch. von Bar (supra fn. 7), no. 313.
Widmer 67
Art. 4:101 Title III. Bases of Liability
The other kind of reaction ± which happened in a parallel way with the
upcoming of strict liabilities was the ªobjectivationº of fault. The less the
personal conditions and capacities of a person who had caused a damage
were taken into account and the higher the standard of the bonus pater
familias or ªreasonable manº was raised, the greater was the possibility to
establish his responsibility for not having observed all proper care to avoid
the damage. Pushed to the extreme 17, such objectivisation led to a notion of
fault which merged with the concept of ªwrongfulnessº or ªunlawfulnessº.
Under such a concept, capacity of discernment was no longer a prerequi-
site, and fault became equivalent with the purely objective finding of a
deviation of a person's conduct from that of an abstract model (the proper
conduct being established retrospectively by the judge who ± knowing the
whole causal development ± can easily define the measures that should
and could have been taken to prevent the injury).
8 From the very beginning of its discussions, the majority of the Group has
favoured an objective concept of ªfaultº which corresponds to the common
law approach as well as to the French or Dutch notion of ªfaultº, without
going so far as to declare capacity of discernment of no relevance for the
ascertainment of fault (Art. 489-2 Code civil; Art. 6:165 para.1 NBW) 18.
Only at a later stage of debates, it was accepted ± upon a proposition of
the minority, which had advocated a more subjective approach ± to intro-
duce a provision that would allow to take into account certain individual
conditions and characteristics of the wrongdoer, at least under exceptional
circumstances (Art. 4:102 para. 2).
Comments
17
In this sense, the Superior Court of Appeal of Munich (MuÈnchener Oberappellationsgericht)
held in 1861 that: ªoperating a railway with locomotives constitutes necessarily and inevitably
a culpable behaviourº; see 14 [1861] Seuffert's Archiv, no. 208, p. 354 et seq.
18
P. Widmer, Comparative Report, PETL Fault, no. 31 et seq.; Ch. von Bar, The Common
European Law of Torts I (1998) no. 61 et seq., in particular 66 et seq.
68 Widmer
Chapter 4. Liability Based on Fault Art. 4:101
Art. 1382 of the French Civil code, Art. 6:162 para.3 of the Dutch NBW,
§ 1295 of the Austrian ABGB, Art. 2043 of the Italian, Art. 1.902 of the
Spanish Civil codes or Art. 41 of the Swiss Code of Obligations 1. In a
broader perspective, the German BGB (§ 823 combined with the already
mentioned § 276), notwithstanding its different structure, pursues the
same goal as well as the common law does (if one subsumes intent and neg-
ligence under a general concept of fault 2).
Liability for fault takes its denomination from the criterion of imputation, 2
from the specific basis of this liability, whereas, if one looks at its key ele-
ment (ªAnknuÈpfungstatbestandº), it would have to be called ªliability for
(human) behaviour or conductº. The contrary happens in the field of strict
liability, at least when it is named liability for (or based on) risk: risk or
danger (ªGefaÈhrdungº) is the key element of a form of liability which has
as its basis or justification the idea of compensation of risk and profit
(ªcuius commoda, eius incommodaº) or ± in slightly different words ± the
idea that responsibility has to be assumed as a counterpart of the privilege
to create (and maintain) a situation of increased risk 3.
Fault is the criterion of imputation which applies when damage has been 3
caused by a person's own conduct. This element distinguishes it again
from strict liability where it is not an individual behaviour which is rele-
vant 4, but the risk inherent to a certain activity as such, even if, of course,
the risk is the emanation of an activity exercised by human beings 5. The
link between the risk and the person liable is not established, however, on
the basis of the immediate (damaging) conduct of this person, but in
consideration of the economic and organisational control he has over the
activity involving the risk. The realisation of such risk may also have been
provoked by the behaviour of a person other than the operator or holder
himself, in particular by one of his auxiliaries; in some cases of extreme
risk (like nuclear risk) even by an extraneous third person (so-called ªcana-
lizationº of liability).
2. Terminology
ªFaultº is used as a comprehensive term, embracing intent as well as negli- 4
gence 6. It is understood in a purely objective way as deviation from or
violation of ªthe required standard of conductº, whether wilfully (inten-
1
Ch. von Bar (supra fn. 18), no. 11.
2
Supra Introduction fn. 9.
3
See infra Art. 5:101 no. 28; B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Lia-
bility, no. 48 et seq., in particular no. 71±74.
4
The elementary distinction between liability ªwith and without personal misconductº is also
an essential systematic criterion in Ch. von Bar (supra fn. 18), 5 et seq., idem (supra fn. 7),
no. 179±305, 306±410. B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability,
no. 157.
5
This is also the reason why the Principles establish a strict liability for dangerous activities,
and not just for things, vehicles, energies etc.; see infra Art. 5:101 no. 18.
6
Supra Introduction to Chapter 4, no. 4.
Widmer 69
Art. 4:101 Title III. Bases of Liability
7
Supra Art. 1:101 no. 5.
70 Widmer
Chapter 4. Liability Based on Fault Art. 4:101
In Chapter 3, dealing with causation, Art. 3:106 establishes a rule for cases 8
where uncertain circumstances belonging to the own sphere of the victim
may have contributed to the damage. This provision can also apply to cases
of ªuncertainº contributory conduct of the victim (Chapter 8, Art. 8.101);
and, if such conduct can be considered as ªfaultyº, this element will have
its significance for the assessment of the part of the loss the victim has to
bear itself.
Still in the frame of Chapter 3, fault as a basis of liability is taken into 9
consideration for the determination of the scope of liability according to
Art. 3:201. The element of ªforeseeabilityº mentioned in lit. a of Art.
3:201 is also one of the essential factors in evaluating the ªrequired stan-
dard of conductº as provided in Art. 4:102, para. 1. It is sometimes argued,
that such foreseeability has to be conceived in a more objective way under
the aspect of ªadequacyº related to the requirement of causation 8 than for
the question of fault. However, where the concept of fault is already
ªobjectivatedº itself to a large extent ± as is the case in the Principles ±
this difference becomes extremely theoretical.
It is evident that the scope of liability, i.e. the question whether ªmechani- 10
calº causation in the sense of the conditio sine qua non doctrine should
entail liability and to what extent, is influenced by the basis of liability
(Art. 3:201 lit. c), i.e. the rules relating to fault. And it is also widely
accepted that fault, especially intent and gross negligence should be a fac-
tor which has an important weight for this decision and evaluation 9.
Another, not directly visible, relation to the rules on fault exists in Art. 11
5:101, which precisely establishes a different basis of liability, independent
from any wrongful conduct and fault, namely that connected to an (abnor-
mally) dangerous activity. In trying to define ªabnormal dangerousnessº,
para. 2 lit. a of this provision refers to a risk which remains high and out
of control ªeven when all due care is exercisedº. This shows what one
could call the ªdialectic relationshipº between fault-based liability and
strict liability 10. The latter begins and is justified only from the point at
which the former is unable to grant a socially and economically adequate
compensation of (inevitable) damage 11.
The ªrequired standard of conduct (in supervision)º also plays a role in the 12
context of Art. 6:101, according to which persons charged with the supervi-
sion of minors or mentally disabled persons are exonerated if they show
that they have done everything reasonably possible to prevent damage.
Systematically, this type of liability could therefore have been incorporated
8
On the strange concept of ªobjective retrospective prognosisº, see P. Widmer, Switzerland, in
J. Spier (ed.), Unification of Tort Law: Causation (2000, hereafter quoted as PETL Causation)
108.
9
P. Widmer, Switzerland, PETL Causation, 112.
10
On the interaction between fault and risk-based liabilities; Ch. von Bar (supra fn. 7), no. 329
et seq.
11
See infra Art. 5:101 no. 14±15.
Widmer 71
Art. 4:101 Title III. Bases of Liability
12
See also Art. 1384 of the French Civil Code where not only different types of liabilities for
others, but also liability for damage caused by things are treated together in the same provi-
sion.
13
See infra Chapter 6 no. 19.
14
M. Faure, Enonomic Analysis, PETL Fault, no. 40 et seq.
15
In particular Germany and Austria; see W.V.H. Rogers (ed.), Damages for Non-Pecuniary
Loss in a Comparative Perspective (2001): E. Karner/H. Koziol, Austria, no. 1 et seq.; U.
Magnus/J. Fedtke, Germany, no. 1 et seq. On the reform in Germany: H.-G. Bollweg/M. Hell-
mann, Das neue Schadensersatzrecht (2003) 22 and 55 et seq., 195 et seq.; on the Austrian
reform project: Verhandlungen des 15. O È sterreichischen Juristentages, BuÈrgerliches Recht
(2004, http://www.juristentag.at/files/juristentag_2003/zivilrecht_15.pdf).
16
See infra the commentary to Art. 10:301 no. 9.
72 Widmer
Chapter 4. Liability Based on Fault Art. 4:101
of liability is certainly ± apart from the financial situation of the parties and
the possible ruin of the defendant ± one of the most important factors to be
taken into account for the decision whether and to which extent a reduc-
tion of the damages (assessed in conformity with the preceding norms of
this chapter) should take place. Here again, the gravity of the fault may
have a certain importance. A reduction will probably not be conceded to
a person who has acted with intent or with gross negligence. If, on the other
hand, the victim has contributed to the damage by behaving in a careless
way, a reduction of the damages owed to him will be envisaged not on the
grounds of Art. 10:401, but as a question of ªadequacyº in virtue of Art.
3:201 and Art. 8:101 17.
4. Illustrations
Pedestrian D1, lost in his thoughts, dashes suddenly on to the street where 17
cyclist D2, trying to make way for him, crashes into another cyclist, P, who
falls from his bicycle and breaks his collarbone. P sues D1 and D2.
On the basis of Art. 4:101 and 4:102, Pedestrian D1 will most probably be
found to have committed a fault by rushing on the street in an unreason-
able and unforeseeable way. D2 should normally be exonerated because
his behaviour was a mere reaction to D1's mistake und because it could
even be qualified as ªcorrect misconductº insofar as it was aimed at pre-
venting the collision with D1.
Without realizing it, D, looking for the key in his bag, drops a banana peel at 18
the entrance of his office; a quarter of an hour later, P, D's superior, who
wants to discuss a paper prepared by D, slips on the peel and is severely
injured.
Even if D can hardly be blamed for this unconscious act, he will probably
be declared liable for fault according to Art. 4:101 and 4:102 because his
behaviour is objectively not in conformity to that of a reasonable person.
Reasonable persons do not drop banana peels on the floor and, in any
case, they make always sure that nothing has fallen from their bag when
they take out their key.
Mrs D, a naturo- and magnetopath, runs a clinic of good reputation in the 19
mountains. Mr P goes to this clinic to cure his renal calculi. After two ses-
sions with Mrs D, who did nothing else but staring hypnotically into his
eyes, P suffers violent colics and has to be brought to the hospital where it
is established that the treatment of Mrs D was absolutely inappropriate in
the specific case; P can be saved only by an extremely expensive transplanta-
tion of new kidneys.
This case can be looked at as a typical example of ªU È bernahmeverschul-
denº 18, i.e. the fault which consists in the fact to engage in an activity of
17
See in this sense also infra the comments ad Art. 10:401.
18
Infra Art. 4:102 no. 9.
Widmer 73
Art. 4:101 Title III. Bases of Liability
which the actor should know that he lacks the competence and skills
to carry it out properly. The main problem, in the present case, may be
one of causation, because it could be difficult to prove that Mrs D's
hypnotherapy has had any (positive or negative) effect whatsoever.
20 D sues P for unjust enrichment although he must have known that he had no
claim. The court dismisses the action, qualifying it as abusive. P sues D in
return for his entire loss caused by the time-consuming lawsuit, including
loss of profit and damage to reputation.
To the extent to which P, who has won his case, does not get compensation
on the basis of procedural rules, he can try to sue D in tort on the basis of
Art. 4:101 and 4:102, arguing that D has introduced his action with the
(sole) intent to cause damage or that, at least, it was absolutely obvious
that the case was a hopeless one. Simple negligence will normally not be
sufficient. As a matter of fact, one should be very cautious in restricting
the right to bring an action before court; actually, P would probably have
no case in the ambit of the common law.
21 D, fifteen years old, participates in a ski-camp organised by his college. One
morning, he runs downhill, following his teacher and the other pupils, on a
rather steep slope. At a certain moment, on a hard frozen spot, he loses
control over his skis and crashes into P who stands on a little hill on the
edge of the track. The collision is violent, P is severely injured and one of
his legs permanently affected in its mobility.
It seems likely that, also according to the Principles, D will be held liable
for fault, even if the accident was not really evitable for him and notwith-
standing the fact that skiing is in itself an activity involving a certain risk.
The court will probably argue that D, knowing that in the morning the
snow could be hard and slippery, should have reduced his speed in order
to avoid collisions with other users of the course. 19
22 P, deputy director of an art museum in a medium-size town, is accused of
sexual harassment by two female employees. Different newspapers have
reported on the case. After an administrative inquiry which shows that the
accusations by the two ladies were unfounded, P is rehabilitated, but in the
meantime he has left the town and has been unable to find a new job. He
sues the two ladies for compensation of his lost income.
On the basis of Art. 4:101 and 4:102, the two ladies could be held liable if it
can be proven that their false accusation was intentional (a kind of ªmob-
19
In a similar case (DFC [Decision of the Swiss Federal Court] 82 [1956] II 25 et seq.), the Swiss
Federal Court has held that ª[i]t is true that even an experienced skier takes the risk of falling.
As long as he does not endanger anybody else, no blame can be addressed to him. However,
where he ought to realize that his way of running may cause harm to somebody else, he has to
take all due care in order to prevent this eventuality.º In other words: If a skier constitutes a
danger for somebody else, his conduct is to blame and he is at fault. This conclusion is not
very far away from the German decision of 1861 which considered the use of locomotives by a
railway company to be ªa necessarily and inevitably faulty conductº (supra Introduction, fn. 17).
74 Widmer
Chapter 4. Liability Based on Fault Art. 4:102
Comments
1. Overview
In its first paragraph, this provision undertakes to enumerate and to 1
describe different factors which have to be taken into account when
defining the required proper standard of conduct, by reference to which
the conduct of the person (potentially) liable has to be measured.
The second paragraph contains a correction of the purely objective stan- 2
dard defined in para. 1. It introduces some subjective elements which ± in
exceptional cases and under particular circumstances ± can mitigate the
appreciation of a person's conduct.
Para. 3 adds a special element to those already mentioned in para. 1. It 3
underlines that statutory duties or interdictions have also to be taken in
consideration for the ascertainment of the proper conduct according to
para. 1 and 2.
20
Infra no. 19 et seq.
Widmer 75
Art. 4:102 Title III. Bases of Liability
21
See H. Koziol, Liability based on Fault: Subjective or Objective Yardstick? in [1998] Maas-
tricht Journal V/2, 118.
22
See PETL Fault, Questionnaire, Part II, case no. 7.
23
See on this topic: W.V.H. Rogers, Winfield & Jolowicz on Tort (16th ed. 2002) Chapter I:
Nature and Functions of the Law of Torts; P. Widmer, Privatrechtliche Haftung, in: P.
MuÈnch/Th. Geiser (eds.), Schaden-Haftung-Versicherung, HandbuÈcher fuÈr die Anwaltspraxis
vol. V (1999) no. 2.2 ± 2.5.
76 Widmer
Chapter 4. Liability Based on Fault Art. 4:102
the person who causes the damage may to a certain degree justify his
conduct 24 and, accordingly, contribute to lower the standard of care applic-
able to such person. Or, in other words: the higher appears the value of the
ªactivity interestº, the more one should be sparing in restricting its exercise
in favour of the ªintegrity interestº of third persons ± subject, of course, to
the nearly absolute priority conferred to physical or psychic integrity and
other personality rights enjoying similar protection.
The second element ± closely linked with the first one relating to the 8
protected interests ± is the ªdangerousness of the activityº. It is a general
principle of common sense that one has to adapt his diligence to the nature
of the activity he exercises and that one should refrain from undertakings
for which he is not sufficiently prepared and formed. ªDangerousnessº is
therefore to be understood in a broad sense, so as to cover every element
of an activity which requires more than everybody's normal abilities,
namely a certain ªexpertiseº.
The precept, according to which the standard of care increases with the
ªdangerousnessº of the activity concerned has, in some legal systems,
been (over-) dogmatised under the denomination of the ªrule of danger
(Gefahrensatz)º and is expressed approximately as follows: ªWhoever
creates or maintains a situation of danger for others has to take all proper
measures to avoid that such danger materialises in form of damageº 25.
Such overdogmatisation begins at the point where this rule is not used
only to ascertain and to measure the fault of a person who could and
should have realised that his conduct created (unnecessary) risks for other
people, but where it is turned into an aspect of causation and a general
principle of unlawfulness. On this basis, the judge could then retrospec-
tively take it as granted that all proper measures to prevent the damage ±
and therefore the required conduct ± have not been adopted because, if
this had been the case, the damage would not have occurred. This reflec-
tion is, of course, logically irrebuttable, but it corrupts the judgement on
fault and, simultaneously, it blurs dangerously the borderline and distorts
the dialectic relationship 26 between fault-based and strict liability.
In some legal systems 27, the liability of specialists is regulated in a particular 9
way, and it can be discussed whether this is an even more severe applica-
tion of an objective yardstick or, on the contrary, the expression of a sub-
jective valuation which ± at least above the ordinary level of the reasonable
every- or nobody ± takes into account the special capacities of the indivi-
dual wrongdoer.
24
See infra Art. 7:101 and the comments thereto.
25
See e.g. for Swiss law: K. Oftinger/E. Stark, Schweizerisches Haftpflichtrecht, Allgemeiner Teil,
(5th ed. 1996) § 3 no. 54 et seq.; P. Widmer, Gefahren des Gefahrensatzes, in 106 [1970] ZBJV
(Zeitschrift des Bernischen Juristenvereins), 289 et seq., 307 et seq.; in the opposite sense
recently: M. Jaun, Gefahrensatz ± Gefahr oder Chance, [2003] ZBJV 139, 141 et seq.
26
See supra Art. 4:101 no. 11.
27
See in particular Austria, § 1299 ABGB.
Widmer 77
Art. 4:102 Title III. Bases of Liability
28
See supra Art. 4:101 no. 9 and fn. 8.
29
Infra no. 14 et seq.
30
See supra Art. 2:102 para. 4 and the comments thereto.
31
Supra no. 9.
78 Widmer
Chapter 4. Liability Based on Fault Art. 4:102
be aware of the dangers which his activity involves for third persons, should
choose, as far as possible and reasonable, the less dangerous way. This is an
application of the general principles of good faith (ªschonende Rechtsaus-
uÈbungº) and of proportionality.
Somewhat less evident is the other factor, namely that of the (excessive)
costs of such measures and methods. The question is if, and to which
extent, one can invoke as a defence the fact that appropriate precautions
would have been too expensive and that he therefore was not obliged to
adopt them. There is a tendency, under the influence of the ªEconomic
Analysisº (but already induced by the Learned Hand formula) 32, to admit
that costs of precautionary measures become ªunreasonableº from the
moment in which they exceed the expenses which would be caused either
by the direct compensation of damage or by paying insurance premiums
for a corresponding coverage. It seems doubtful, however, that, at a practi-
cal level, a pure cost-benefit analysis can be of great help to courts in reach-
ing their decisions: apart from anything else, it may be extremely difficult, if
not impossible, to determine what are the costs on each side of the equa-
tion. It may also be, on the other side, that the legislature decides in a par-
ticular area that an activity should bear all of its inevitable accident costs
via a regime of strict liability.
b) Adaptation of the Ordinary Standard to Extraordinary Circumstances
(Para. 2)
As already indicated 33, the Principles reserve the possibility, in para. 2 of 14
Art. 4:102, though only for a particular type of wrongdoers and for ªextra-
ordinary circumstancesº, that the objectivated notion of fault ± based on
the objective standard of conduct ± may be tempered in order to avoid an
excessive ªhardshipº in the evaluation of a person's effective possibilities
to behave as the standard would have required. In other words: extra-
ordinary circumstances can be admitted, where sticking to the objective
standard would turn fault-based liability into strict liability.
In the first place, the provision mentions expressly the age of the tortfeasor 15
and the fact that he suffers from some mental or physical disability. This is
a defence which is so to say implied in the notion of fault and does there-
fore not appear as a separate and autonomous concept in the frame of the
chapter on ªDefencesº 34.
In this respect, it is important to note that the Principles ± contrary to cer-
tain legal systems 35 ± do not fix a determined (or presumed) limit of age,
32
M. Faure, Economic Analysis, PETL Fault, no. 11 et seq.
33
Supra no. 11 and Introduction no. 3 and 8.
34
Infra Chapter 7, Art. 7:101 et seq.
35
Austria, Germany, the Netherlands; see P. Widmer, Comparative Report, PETL Fault, no. 29;
see also Art. 3:103 para. 2 of the Draft Articles on Tort Law of the Working Team on Extra-
Contractual Obligations of the Study Group on a European Civil Code (see supra General
Introduction no. 40).
Widmer 79
Art. 4:102 Title III. Bases of Liability
below which a person cannot be held liable. This means that ± in this
respect, too ± we adopt a flexible system, and that the question whether
or not a person had sufficient insight and control of his or her behaviour,
has to be answered from case to case, according to the concrete mental
development of that person. There are situations ± like e.g. playing with
matches or fireworks or other dangerous toys (such as ªsoftgunsº or even
handmade bows and arrows) or the manner in which one has to behave
on streets and places open to the traffic ± where even relatively young
children are normally aware of the risk and able to act in consequence of
such insight.
Avoiding a fixed limit of age also has the advantage that the exception-
clause can be applied in the reverse case to persons whose competences
and capacities are diminished as a consequence of high age. This is consis-
tent with the fact that the provision mentions mental and/or physical dis-
abilities as other possible factors to be taken into account, independently
from the age.
16 It is not possible to indicate in an exhaustive way the circumstances which
may be considered in the frame of Art. 4:102 para. 2. That is the reason
why the Principles adopt, here again, a flexible concept, speaking generally
of ªextraordinary circumstancesº. Lacking a specific rule on capacity (of
discernment) and in conformity with the flexible approach chosen, one
can imagine certain (exceptional) cases, where it would even be justified
to take into account individualised personal circumstances. One example
which was discussed (in a controversial way) within the Group under this
perspective is the case of a young assistant doctor who, after having been
forced to work at the hospital during more than sixty hours without any
serious interruption, coming across a traffic accident on his way home,
provides first aid to the victims and, because of his state of overfatigue,
makes a mistake which causes additional harm to the persons assisted 36. It
seems arguable, in such a case, that this additional accident is due to a
kind of fate which belongs to the own sphere of risk of the injured person
and should not be attributed and imputed to the doctor ± even if, in a radi-
cally objective perspective, an ªU È bernahmeverschuldenº 37 could perhaps
be established against him .38
17 Among the more subjective factors which may play a role in ªextraordinary
casesº, one can also think of those elements which are sometimes described
as ªgrounds of justificationº and, in the Principles, are mentioned in Art.
7:101 para. 1 under the heading ªDefencesº. In those legal systems which
distinguish between wrongfulness and fault, these grounds would be taken
36
See infra the illustration in no. 25.
37
Supra no. 9.
38
The question could seriously be posed, however, if one could not admit the responsibility of
the hospital (according to Art. 4:202 ªEnterprise Liabilityº) which was not organized in a
proper way, so as to prevent its personnel from prolonging their work over the prescribed lim-
its. Cf. Art. 4:202 no. 5.
80 Widmer
Chapter 4. Liability Based on Fault Art. 4:102
into account under the former aspect, and the establishment of liability
would consequently stop at that stage already. According to the approach
chosen by the Principles, which leads to merge wrongfulness with fault 39,
such justification grounds automatically become also reasons for ªexculpa-
tionº 40.
Of course, all the elements which can play a role for the valuation of a 18
person's (damaging) conduct are to be weighed according to the general
rule of Art. 3:201 (ªwhether and to which extent damage may be attributed
to a person depends . . .º). This means that the fault of a person in respect
of a certain damaging event cannot simply be retained or not, and that it
is not only black or white, but that a whole range of nuances are possible.
Insofar, the so-called ªdegrees of faultº can still be of a certain impor-
tance 41.
c) Statutory Duties as Indication for Fault (Para. 3)
A separate paragraph expressly states that, in establishing the ªrequired 19
standard of conductº, attention has to be paid to norms containing a speci-
fic injunction or interdiction, prescribing or forbidding a certain conduct,
such as e.g. the provisions on road traffic, those applying to construction
activities or contained in regulations on the prevention of (work-) acci-
dents.
At first glance, this seems self-evident 42. However, the apparently plain
principle has to be shaded in different respects. First of all, one has to
examine if the prescription or interdiction in question has the character of
a protective statute (ªSchutzgesetzº) in the sense that it is effectively ±
exclusively or alternatively ± aimed at protecting the right that was inter-
fered with by the person whose fault is at stake 43. In systems which distin-
guish between wrongfulness and fault, this question is normally addressed
under the aspect of the ªconnection of unlawfulness (Rechtswidrigkeitszu-
sammenhang)º, i.e. the relation between the damage and the norm trans-
gressed. Where, however, fault and wrongfulness form one indistinct
requirement, as is the case in the Principles, the same question has to be
posed related to fault: one has to examine the ªconnection of fault
(Verschuldenszusammenhang)º.
The question whether the protective aim of the norm restricts its scope of
application under the aspect of the standard of conduct and of the fault
committed by its non-fulfilment is controversial 44. According to some sys-
tems and the proper jurisprudence, the transgression of a norm which was
39
See also P. Widmer, Comparative Report, PETL Fault, no. 18.
40
See also supra no. 7 and Art. 2:102 para. 4.
41
Introduction no. 4; see also Art. 4:101 no. 16.
42
Supra no. 4.
43
P. Widmer, Switzerland, in H. Koziol (ed.), Unification of Tort Law: Wrongfulness (1998,
hereafter cited as PETL Wrongfulness) 122 et seq.
44
See PETL Fault, Responses to case no. 1 in the Questionnaire.
Widmer 81
Art. 4:102 Title III. Bases of Liability
45
J. Spier/O. Haazen, Comparative Conclusions on Causation, PETL Causation, 132 et seq.
46
See infra Illustrations no. 24.
47
P. Widmer, Switzerland, PETL Wrongfulness 122 et seq.
48
PETL Fault, Comparative Report, no. 45.
49
PETL Fault, Comparative Report, no. 47.
82 Widmer
Chapter 4. Liability Based on Fault Art. 4:102
for the admission of a duty to protect others from damage. Because of the
similarity of the key elements with those envisaged in Art. 5:101 and
5:102, it can be questionable whether it is possible to distinguish in a suffi-
ciently clear way these cases of wrongful behaviour from those to be ruled
by strict ± and that means: no-fault ± liability (see Introduction no. 3 and
fn. 8) 50.
Another link exists with Art. 4:201, because ± here again ± there is a certain 23
overlapping of the key elements. According to this provision, a danger of a
certain gravity authorizes the judge to operate a reversal of the burden of
proof relating to fault. If misunderstood, this could lead to the conclusion
that in every case where a duty to protect other people from damage has
arisen out of the creation or control of a dangerous situation (keeping in
mind that every damage shows that there must have existed a dangerous
situation before), the burden of proof will automatically be shifted to the
disadvantage of the defendant. Such is certainly not the intention of the
Principles; the ªdangerº contemplated in Art. 4:201 is a danger of greater
seriousness compared to the ªnormalº danger of situations ruled by normal
fault-liability but which, on the other side, does not attain the level of extra-
harzardousness required for strict liability according to Art. 5:101 51.
Illustrations
On a sunny day, D drives on a road as straight as an arrow. As there are no 24
other road users in view, no houses nearby and no roads crossing for some
kilometers. D exceeds the speed limit considerably and hits a drunken tramp
who emerges from the roadside ditch. The injured tramp sues D 52.
The question will be whether there is a causal link between D's faulty
excess of speed and the injury suffered by the tramp, respectively if there
is a sufficient ªVerschuldenszusammenhangº 53 between the wrongful beha-
viour of D and the damage caused to the drunken tramp. The answers in
the various jurisdictions are divergent, depending on the position one takes
on the question whether the infringement of a positive rule is an absolute
criterion for fault or not. Art. 4:102, para. 3 does not clearly resolve the
question; however, its formulation points rather towards a differentiating
solution which would also better fit with Art. 2:102 and 3:201. In the
present case, liability could also be denied for other reasons: either ± in
terms of wrongfulness ± because a lawful conduct of D (respect of the
speed limit) would not have prevented the damage (ªrechtmaÈssiges
Alternativverhaltenº), or because the contributory conduct of the drunken
victim appears as the primary cause of the accident.
D is a young assistant doctor who is on his way home by bicycle after having 25
worked 60 hours without interruption in the emergency ward of a hospital
50
See Introduction no. 3 and fn. 8.
51
Infra Chapter 5, no. 16 and 19.
52
PETL Fault, Questionnaire, case no. 1.
53
Supra no. 19.
Widmer 83
Art. 4:102 Title III. Bases of Liability
(because the colleague who should have relieved him fell ill). Shortly before
reaching his home, he comes across a traffic accident and, while administer-
ing first aid to one of the injured persons, he omits to apply a very common
hemostatic measure because of his state of extreme fatigue. Can he be made
liable for malpractice? 54
This case illustrates very clearly the problem of the objective or subjective
concept of fault. On a purely objective basis, one will not be in a position
to exonerate D. The question then is whether the present case can be con-
sidered as falling under para. 2 of Art. 4:102, i.e. as fulfilling the require-
ment of ªextraordinary circumstancesº. If one admits an exoneration under
this provision, one may still envisage a responsibility of the hospital which
employs D (or the public community running it), for not having organised
D's relief in a proper way.
26 D, a housewife who suffers of manic-depressive states, in a stage of deep
depression opens the gas-tap of the stove. Under the influence of the escaped
gas, she loses conscience and dies after a short time. A few minutes later, a
violent explosion causes considerable damage to the building in which D
lived with her family. P, the insurance company which insures (on a manda-
tory basis) the partly destroyed building of X, the landlord of D's family,
introduces a recourse action against the husband and the heirs of D 55.
The solution depends on whether or not one admits that D was in a state of
mental disability when she opened the gas-tap. If the answer is in the
affirmative, some legal systems still offer an (exceptional) possibility to
hold liable even an incapable person, in particular if she is very wealthy
and the victim indigent. Where the plaintiff is an insurance company, it
seems at least doubtful that such an exceptional provision could apply.
The complementary application of national law as such is certainly not
prevented by the Principles.
27 D1, D2 and D3, aged six, nine and fourteen, play with matches and set fire to
a barn 56. Can they be held liable notwithstanding their low age?
Since the Principles do not deal expressly with the question of capacity and
do not fix a specific limit of age, the question has to be examined individu-
ally for each one of the children involved, according to their respective
mental ability. Generally speaking, and in the absence of special disabil-
ities, one can normally assume that a child of fourteen, and even one of
nine years, is capable to realise the danger of playing with matches, while
a six years old child is not. In most legal systems, there will be a primary
or cumulative responsibility of the parents or of the person having the
guardianship over the child.
54
PETL Fault, Questionnaire, case no. 10.
55
DFC 103 (1977) II 330 et seq.
56
PETL Fault, Questionnaire, case no. 2; see also DFC 100 (1974) 332 et seq.; DFC 104 (1978)
II 184 et seq.
84 Widmer
Chapter 4. Liability Based on Fault Art. 4:102
Before going to bed, D wants to drink a bottle of fine wine. But after having 28
drunk the bottle, a friend calls him and asks him to join a party. D decides
not to go to bed and drives by car to the party of his friend. Because of his
drunkenness he causes a bad accident and injures P severely 57.
If D ± after having emptied the bottle ± is still capable of discernment, his
decision to drive by car to the party of his friend is an evident case of gross
negligence, because he knows or ought to have known that he would not be
able to drive safely. If, on the other side, D was drunk after having
absorbed a whole bottle of wine, the question to ask is whether he should
have foreseen that in such a state of drunkenness he could get into a dan-
gerous situation (whether driving a car or otherwise). If so, one could admit
negligence (or even dolus eventualis) in form of a so-called actio libera in
causa. This poses however the difficult problem to decide whether it can
generally be said that it is an irresponsible conduct ± in the sense of a
legally relevant ªfaultº to get drunk at all. It could very well be that, in
particular in countries with an old and strong wine tradition, courts would
hesitate to go thus far.
It should however be kept in mind that, at least in most continental
systems, the fault of the driver of a motor-vehicle (hence his capacity) is
of no relevance in founding (his or the car holder's) liability, because their
liability is a strict one based on the specific risk of such vehicles.
X had been employed by D in his enterprise first as an accountant, later on 29
as a deputy director, responsible for administrative and financial matters. In
this quality, X had defrauded a considerable sum. He was dismissed, but
since X had consented to repay the misappropriated money, D issued a
favourable letter of reference in which he praised X's capacities in financial
management. After some time, X was reengaged by company P which
entrusted him again with the finances of the company, without even control-
ling his work. After 10 months in his new job, X became recidivous and con-
verted some 100,000 francs out of company P's assets to his own use.
The case, decided by the Swiss Federal Court in 1975 58, fits into a category
which has recently become rather frequent and which one could name
ªliability for false information or misrepresentationº. Even more recently,
in Germany and Switzerland, doctrine and jurisprudence have invented a
new type of responsibility, called ªliability based on confidenceº, which
encompasses the misrepresentation cases (infra Art. 4:103 no. 1 at fn. 65).
It seems likely that, under the Principles and more specifically by applica-
tion of Art. 4:101, 4:102 and perhaps 4:103, the first employer D could
also be held liable for the (purely economic) loss of the second employer
P. This would mean to admit a duty of D vis-aÁ-vis P (or any other person
who could be induced in error by the letter of reference) to provide correct
information. Such duty ± apart from flowing from the prescription in crim-
57
PETL Fault, Questionnaire, case no. 4a.
58
DFC 101 (1975) II 101 69 et seq.
Widmer 85
Art. 4:103 Title III. Bases of Liability
inal law which punishes the issue of documents containing false statements ±
may also be deduced from the general principle of good faith. It is contro-
versial, however, if this principle constitutes per se a sufficient reason for
liability; some authors think that it should only come into play where there
was a (pre-existing) ªspecial relationshipº between the parties (as is also
required in Art. 4:103).
Comments
59
Mainly in the field of criminal law, see e.g. Art. 450 of the Dutch Criminal Code; Art. 128 of
the Swiss Penal Code.
60
The Hippocratic Oath (http://www.pbs.org/wgbh/nova/doctors/oath_modern.html) and, as an
example, Art. 7 of the Italian Codice di Deontologia Medica (http://www.fnomceo.it/
art07G.htm).
61
See e.g. Rule 9 of the Rules for Conduct of the International Ski Federation (FIS): http://
www.fis-ski.com/uk/rulesandpublications/fisgeneralrules/10fisrules.html.
62
One may recall the answer of CaõÈn when asked about his brother Abel's fate: ªAm I my
brother's keeper?º (Gen. 4/9). On the question in general, see Ch. von Bar (supra fn. 7),
no. 194 et seq.
63
Which means ± strictly speaking ± that it cannot be a conditio sine qua non.
86 Widmer
Chapter 4. Liability Based on Fault Art. 4:103
2. History
The considerable differences between the legal systems concerning the 2
question of a positive duty to act in the interests of others were also dis-
cussed by the Group; in general, the prevailing opinion was that no general
duty in this sense was admitted, even where this would have been possible
without any risk and inconvenience for the helper himself 67.
However, the Group deemed it suitable to extend the duty to act, or rather:
to prepare the ground for such an extension. It was felt that an appropriate
ponderation of interests, which is a core element of the Principles (Art.
2:102 and 4:102 para. 1) ± could very well serve as starting point for an
opening in this direction.
64
Supra Art. 4:102 no. 29.
65
C.W. Canaris, Die Vertrauenshaftung im deutschen Privatrecht (1971); P. Chappuis/B. Winiger
(eds.), La responsabilite fondeÂe sur la confiance (2001).
66
See Ch. von Bar (supra fn. 7), no. 44/45 and Art. 2:207 of the Draft Articles on Tort Law
(supra fn. 35).
67
Responses to case 10 of the Questionnaire PETL Fault; e.g. W.V.H. Rogers, England, PETL
Fault, 52: ªNegligent acts . . . are generally regarded as legal wrongs; omissions are generally
not.º and the opinion of Lord Hoffmann in Stovin v. Wise quoted there.
68
Supra Art. 4:102 no. 8.
Widmer 87
Art. 4:103 Title III. Bases of Liability
4 The duty to act, respectively the wrongfulness and faulty character of the
ªomissionº to take appropriate safety measures arises as a consequence of
the creation or the maintenance of an (unnecessary) dangerous situation.
It may sometimes be quite difficult to distinguish between the (initial) act
and the (subsequent) omission 69. Normally, the creation of a dangerous
situation is in itself not yet a wrongful act; the delict is only accomplished
if the foreseeable realisation of the risk is not prevented with appropriate
means.
An important element in this context is the ªease of avoiding the damageº,
which constitutes also for itself a factor apt to create a duty to act 70. If the
person who has created a certain risk had the possibility to control it easily
in a way apt to avoid damage to third persons, and if she neglected to do
so, she can effectively be blamed, and the risk then appears as an ªunneces-
saryº one. This ªlack of necessityº adds an essential aspect to the mere
deviation from an objective standard of conduct, in that it gives a strong
indication that the person's behaviour was from the very beginning ªun-
reasonableº and therefore faulty.
5 Another situation in which a duty to act can arise is the existence of a
ªspecial relationshipº between the persons involved. This is self-evident in
the contractual relationship which encompasses a number of implied duties
(relating to the security and the correct information of the partner) result-
ing from the principle of good faith. A ªspecial relationshipº is also widely
recognized between parties who are negotiating a contract. According to
the principle of good faith, they can be held liable for a culpa in contra-
hendo consisting in the omission to disclose certain circumstances or to
inform the partner who is manifestly basing his decision on an erroneous
representation of facts.
According to the Principles, it is however possible to admit a special rela-
tionship even on the mere ground of a factual or social relationship, as it
may exist between people who meet incidentally, but in a situation where
they have good reasons or are even forced to rely on the other. This is
e.g. the case of a hiker in the mountains who asks a local resident to indi-
cate the safe way; or where an information of essential importance and/or
value is requested from a (presumptive) specialist, even without any con-
tractual basis.
6 Finally, a duty to protect others may simply arise from a situation where
somebody is conscious of a danger of certain gravity and where it is easy
for him to take steps in order to prevent others from running such risk.
This can be the case e.g. where a person realizes that another person is
not aware of an imminent danger and where it would be sufficient to shout
or to draw by any other means the second person's attention to the risk, in
order to warn her and prevent her from being injured. The same is true in a
69
See Ch. von Bar (supra fn. 7), no. 195 et seq.
70
Infra no. 6.
88 Widmer
Chapter 4. Liability Based on Fault Art. 4:103
Illustrations
D1 lawfully digs a hole in the public road before his house and fences it 7
securely. After a while, he is informed that vandals have removed the fence;
but he does not react. P falls into the hole.
The case shows the classic picture of the principle according to which who-
ever creates or maintains a dangerous situation (e.g. a hole in the public
road) has a duty to take the necessary measures to prevent the risk from
materializing by causing injury to a third person. Such duty exists of course
not only at the moment where the danger is created, but lasts for the whole
time during which it subsists. The liability of a person who omits to take
such measures and to make sure that they remain effective after a lapse of
time (the more when she is informed about troubles) would already follow
from the basic principle of Art. 4:101 and 4:102. Art. 4:103 only makes
explicit this deduction.
After P has fallen into the hole, D2 passes and hears P's moaning. But 8
because he is late for an appointment, he does not stop and P dies. It can be
established that, if D2 had sent for aid, P would have survived.
This situation differs from the preceding one insofar as D2 is not the person
who has created the dangerous situation or is under a specific duty to keep
the correspondent preventive measures effective, but a simple passer-by. In
this respect, Art. 4:102 brings about a certain novelty in comparison with
those systems which stick to the principle that one is not obliged to inter-
vene in order to safeguard the interests of others 72. The reason for which
such a duty arises here is rather the fact that the situation itself creates a
kind of ªspecial relationshipº between the persons involved and that it is
very easy for the passer-by to offer his help to the injured person or at least
to call for such help.
P is walking alone along the street and sees a blind person approaching an 9
unfenced hole. He abstains from any warning or assistance to the blind per-
son.
The case is very similar to the preceding one.
P, a tourist on a trip in the Alps, asks farmer D, who abominates all these 10
tourists stumbling over his land, for the way to the summit. The grumpy
farmer does not answer, but he realizes that the tourist takes the wrong trail
which leads to a dangerous steep. After a short while, the tourist falls over a
rocky precipice and is seriously injured. Can the farmer D be held liable for
his fatal silence?
71
See infra no. 8 and 9.
72
Supra no. 1 and 2 as well as fn. 62 and 67.
Widmer 89
Art. 4:201 Title III. Bases of Liability
The question is again whether one sticks to the principle that ªI am not my
brothers keeperº or, on the contrary, admits a more or less generalised
duty to prevent others from damage where this is possible without special
efforts. The Principles opt for a stronger commitment in the second sense.
It seems therefore quite obvious that the behaviour of the farmer, which
is essentially motivated by his bad humour, constitutes a breach of this
duty of easy assistance.
(1) The burden of proving fault may be reversed in light of the gravity of
the danger presented by the activity.
Comments
1
See supra Title II.
2
See B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability, no. 154 et seq.;
H. KoÈtz/G. Wagner, Deliktsrecht (10th ed. 2004), no. 260 et seq.; see also infra Introduction
to Chapter 5, no. 2.
90 Widmer
Chapter 4. Liability Based on Fault Art. 4:201
2. Definitions
Gravity of Danger
As explained above 5, the dangerousness contemplated here is one of inter- 3
mediate intensity, between the ªnormalº risk which is inherent to any
human activity and the extraordinary or ªabnormallyº high risk which
triggers strict liability; the idea cannot be that a reversal of the burden of
proof should be admitted in all cases for the simple reason that, immedi-
ately before the damage occurred, there has necessarily always been a
pre-existing danger.
Para. 2 specifies that the situation can be dangerous (enough to justify a 4
reversal of the burden of proof) either if it is apt to lead to rather frequent
harm or if the damage which may occur ± even if this happens not very
often ± can be of quite serious dimensions 6; it goes without saying that a
sufficient gravity of danger is all the more attained if the quantitative and
the qualitative conditions are cumulatively fulfilled.
3
See infra comments to Art. 5:102.
4
Strictly speaking, it is not correct to speak about (reversal of the burden of) ªproving faultº.
The (dis-)qualification ªfaultº is a judgment of value, pronounced by the judge on the basis
of his valuation of (proven) facts or conduct, and can therefore not be proven as such (the
same is true, by the way, for the ascertainment of ªunlawfulnessº).
5
Supra Art. 4:102 no. 8 (see also 4:103 no. 3).
6
See the explanations for the parallel notion of ªabnormal dangerº infra Art. 5:101, no. 19.
Widmer 91
Art. 4:201 Title III. Bases of Liability
ary) danger, while the so-called ªEnterprise Liabilityº is based on the idea
of the ªlengthened armº meaning that, by using auxiliaries and machinery,
the entrepreneur extends his sphere of influence and of risk; it is the corre-
spondent (abstract) ªorganizational riskº which justifies an equation of loss
and profit. But, at the same time, this form of liability remains connected to
a ªdefectº (creating a concrete risk) and therefore to an (extremely objecti-
vated but nevertheless personal) misconduct of the entrepreneur who is
responsible.
7 Similarly, Art. 4:201 builds a bridge between the traditional liability in tort
(Chapter 4) on the one side and the more recent category of strict liability
(Chapter 5) on the other, where fault or any other form of wrongful indivi-
dual behaviour is no longer a prerequisite for responsibility. It is thus a
clear expression of the already mentioned ªunbroken chainº between
both extremities of subjective and objective liability 7.
7
B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability, no. 156.
8
L. Tichy, Czech Republic, PETL Fault, no. 36 et seq.
9
M. Martin-Casals/J. Ribot/J. SoleÂ, Spain, PETL Strict Liability, no. 9 et seq.; in the same sense
M. Martin-Casals/J. SoleÂ, Spain, PETL Fault, no. 8 et seq.
10
See also infra: Art. 6:101 and the comments thereon.
11
H. Koziol, Austria, PETL Fault, no. 7; H. Cousy/D. Droshout, Belgium, PETL Fault, no. 1
and 43±44; P. Widmer, Comparative Report, PETL Fault, no. 64±65; B.A. Koch/H. Koziol,
Austria, PETL Strict Liability, no. 6; H. Cousy/D. Droshout, Belgium, PETL Strict Liability,
no. 9; S. Galand-Carval, France, PETL Strict Liability, no. 2; J. Fedtke/U. Magnus, Germany,
PETL Strict Liability, no. 7; K. Kerameus, Greece, PETL Strict Liability, no. 1 et seq.; I.
Gilead, Israel, PETL Strict Liability, no. 8; F. Busnelli/G. ComandeÂ, Italy, PETL Strict Liabi-
lity, no. 16 et seq. and 83 et seq.; E. du Perron/W. van Boom, Netherlands, PETL Strict Liabi-
lity, no. 5 et seq.; P. Widmer, Switzerland, PETL Strict Liability, no. 2, 3, 6 et seq.; M. Faure,
Economic Analysis, PETL Strict Liability, no. 10 et seq.; B.A. Koch/H. Koziol, Comparative
Conclusions, PETL Strict Liability, no. 2 and 154 et seq.
12
In its practical application, however, this provision is used more like an authentic strict liability
than a liability based on fault with reversed burden of proof; see F. Busnelli/G. ComandeÂ,
Italy, PETL Strict Liability, no. 46 and 85; F. SchluÈchter, Haftung fuÈr gefaÈhrliche TaÈtigkeit
(1990) 4.4.1.2, 116 et seq., 4.4.1.8.6, 164.
92 Widmer
Chapter 4. Liability Based on Fault Art. 4:202
Comments
1. Overview
Enterprise liability under these Principles is not strict liability. This seems 1
to be the most important message in light of the red rag effect that the
Article's heading tends to have, particularly for representatives of industry.
Instead, the Group proposes a fault regime, though with a reversal of the
burden of proving fault 1.
The issue has nevertheless been tackled within the framework of the 2
Group's project on strict liability, where the questionnaire had expressly
asked for special liability regimes for enterprises in the various jurisdic-
tions 2. The first draft principles produced on the basis of this project there-
fore also included rules on enterprise liability, though these were already
then placed into the grey zone between fault and strict liability. As
explained elsewhere 3, the initial proposal for strict liability had been more
flexible, intending to bridge the fault concept on the one side with the no-
fault regime on the other, so that also mixed concepts were covered. The
13
S. Galand-Carval, France, PETL Fault, no. 23; idem, France, PETL Strict Liability, no. 2.
1
The Group thereby seems to be in line with the current debate in the United States, where the
ªbattleº between strict liability and negligence in the field of enterprise liability is currently
shifting towards the fault side again: See, e.g., the leading articles by G. Priest, The Invention
of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort
Law, 14 [1985] Journal of Legal Studies, 461; G. Schwartz, The Beginning and the Possible
End of the Rise of Modern American Tort Law, 26 [1992] Georgia Law Review, 601. See
also the more recent discussion of the Third Restatement, where the fault principle is reaf-
firmed, e.g. G. Keating, The Theory of Enterprise Liability and Common Law Strict Liability,
54 [2001] Vanderbilt Law Review, 1285; J. Henderson, Why Negligence Dominates Tort, 50
[2002] UCLA Law Review, 377.
2
See the questionnaire in B.A. Koch/H. Koziol (eds.), Unification of Tort Law: Strict Liability
(2002, hereafter cited as PETL Strict Liability), 3.
3
See infra Chapter 5 no. 2±3; 5±6.
Widmer/Koch 93
Art. 4:202 Title III. Bases of Liability
solution ultimately adopted by the Group for strict liability (infra Chapter
5) is, however, more narrowly focussed on abnormally dangerous activities,
so that the rules on enterprise liability were ultimately moved to their
proper core context, i.e. fault-based liability and deviations therefrom
(Chapter 4).
3 At the occasion of discussing enterprise and strict liability, the Group
briefly considered adding a specific rule on product liability, but we all
held this to be unnecessary in light of the existing harmonization in this
field as intended (and at least in part achieved) by EC Directive 85/374.
Its regime is certainly not without flaws ± one only needs to look at recent
ECJ case law 4 or some of the statements in the second report on the appli-
cation of this directive 5. Nevertheless, one cannot deny that considerable
efforts have already been put into this field on the European legislative
level, so that it is highly unlikely that any deviation therefrom might be
appealing on the harmonization floors. Art. 4:202 is therefore not meant
to supersede or to deviate from the regime established under the Products
Liability Directive; to the extent it is applicable, it will govern. The solution
proposed here will, however, at least in part fill the gap left open by the
(deserved) failure of the planned Services Directive 6. However, the regime
of these Principles differs considerably from the approach so far taken by
the European legislator, not only because our (narrower) concept is based
on the notion of fault.
4 The major motivation underlying Art. 4:202 is the concern that victims may
not be able to identify the proper cause of their losses although it can be
traced to an enterprise that takes advantage both of human auxiliaries
and/or technical equipment. While an enterprise is of course liable for the
misbehaviour of its auxiliaries under Art. 6:102 and can equally be strictly
liable for abnormally dangerous activities falling under Art. 5:101 or other
dangerous activities covered by Art. 5:102, it may not be easy for a victim
who can prove that the origin of his loss lies within this enterprise to iden-
tify whether it was a human or a technical helper thereof that caused the
harm. In such cases, victims run the risk of pursuing their case on the wrong
track (either via Art. 6:102 or under Chapter 5 of these Principles). Art.
4:202 relieves them of this difficulty at least to some extent: They only
(but as a minimum!) need to prove that the cause lies within the sphere of
the enterprise by showing that it was a defect of such enterprise or of its
output. If they thereby succeed, the ball is in the field of the enterprise,
which then needs to rebut the presumption that this defect established by
the claimant came about because the enterprise failed to exercise all proper
4
Cf. B.A. Koch, European Union, in H. Koziol/B. Steininger (eds.), European Tort Law 2001
(2002) 473 (no. 31 et seq.); idem, European Union, in H. Koziol/B. Steininger (eds.),
European Tort Law 2002 (2003) 432 (no. 55 et seq.).
5
COM(2000) 893 final, where the Commission e.g. admits that even after 15 years, there is
ªstill limited experienceº with the Directive (p. 28).
6
Proposal for a Council Directive on the Liability of Suppliers of Services, COM(1990) 482
final, Official Journal (OJ) C 12, 18.1.1991, 8.
94 Koch
Chapter 4. Liability Based on Fault Art. 4:202
care to prevent the loss, thereby violating the higher standard of conduct
required from such professionals.
Furthermore, Art. 4:202 tackles the problem of flaws in the organization 5
and quality control management: Whereas liability for auxiliaries under
Art. 6:102 starts from a misbehaviour of the auxiliary that is attributed to
his employer, Art. 4:202 does not necessarily presuppose that the auxiliary
has done something wrong: It may well be that harm has been caused by
an auxiliary without any violation of the required standard of care on his
side; nevertheless the enterprise can be held liable under Art. 4:202 if
proper organization could have avoided the negative consequences of
such occurrences 7. While under Art. 6:102 a hospital would not have to
answer for the harm caused by a surgeon who suffers a heart attack while
performing a delicate operation 8, the hospital may still have to indemnify
the patient for its deficiencies in staff administration, for example if the
work schedules excessively and unreasonably overburdened the surgeon,
which presented a health risk to him that ultimately culminated in his heart
attack. If that is the case, the hospital may be liable on the basis of fault;
Art. 4:202 makes the victim's case easier by shifting the burden of proving
such fault to the hospital. However, it is still up to the victim to prove
such defects in the hospital's work schedules, and that these ultimately
were the cause of his loss.
Moreover, this Article emphasizes that enterprises employing machinery 6
and other technical equipment will have to pay specific attention to their
proper functioning and to make sure that all reasonable efforts are made
to prevent such equipment from causing harm. Failure to do so may result
in liability, but for misconduct (and therefore fault) only, not for the mere
risk triggered by the use of the machinery. However, it will ± again ± be
the enterprise's task to prove that such failure was no violation of the
required standard of conduct.
The scope of this Article is therefore narrower than it might appear at first 7
sight: In most cases, liability of an enterprise (if any) will be based on
Art. 4:101 or Art. 6:102, since people running businesses and pursuing
professions for profit as well as their staff will typically have to come up
to an elevated standard of conduct, if only for the expertise to be expected
of a person carrying on such activities (cf. Art. 4:102 para. 1). In a few
cases, if an enterprise pursues an abnormally dangerous activity such as
storing explosives in a residential neighbourhood, liability may also be
directly based on Art. 5:101.
Nevertheless, there may still be cases of the kind described earlier: If a 8
patient, for example, manages to prove that the deterioration of his condi-
tion was not caused by some risk within his own sphere (such as his own
pre-condition), but by something that happened in the sphere of the hospi-
7
Cf. Art. 4:102 no. 25.
8
See infra Art. 6:102 no. 18.
Koch 95
Art. 4:202 Title III. Bases of Liability
tal during the operation, though he cannot identify whether it was one of
the hospital's staff members who did something wrong, or whether the
computers or other operating theatre equipment malfunctioned, he may
still recover damages from the hospital if the latter should fail to prove (a)
that none of its staff violated the required standard of conduct, which is
the highest (but still reasonable) standard of the time (ªall proper careº),
(b) that the organization of the hospital came up to all reasonable expecta-
tions, and (c) that there was no lack of safety with respect to the computers
or the equipment.
9 The novelty brought about by Art. 4:202 is therefore this reversal of the
burden of proving fault under the circumstances of the business pursued
by the enterprise. This may already have happened on the basis of Art.
4:201, if the business activity was so dangerous that the requirements of
Art. 4:201 para. 2 were met. If not, the consequences of Art. 4:201 are
extended to enterprise settings by Art. 4:202 which are not per se as dan-
gerous as required under the former Article. As the standard of conduct
required from enterprises is rather high (e.g. in light of the ªexpertise to
be expectedº from them, Art. 4:102 para. 1), the exculpation required
under Art. 4:202 may be very difficult, so that effectively chances for the
victim to recover may be quite good 9, if only for internal documentation
of the enterprise or other potential evidence that got lost in the course of
time. But again: The minimum requirement for such consequence is that
the victim proves a defect within the sphere of the enterprise that caused
his loss. Uncertainties about such causation have to be solved beforehand
according to the proper rules applicable thereto (Chapter 3), and as to
that point, standard rules of evidence apply.
10 The novelty aforementioned is only one within the framework of these
Principles and therefore necessary to complement them: It is by no means
new to most of the legal systems covered by the Group's research, which
recognize instances of professional behaviour where it is the professional
who has to prove that he conformed to the required standard of conduct,
or which do so indirectly by setting the standard so high that a plaintiff
can easily succeed on this point, leaving the defendant with almost no effec-
tive chance of a rebuttal 10. It is also the case, of course, that even where
there is no formal reversal of the burden of proof, the court may infer fault
from circumstantial evidence such as the nature and circumstances of the
accident. That is not in any real sense a formal principle of tort law and
this Article in no way restricts it.
11 Inspiration for this Article came from the model of the Swiss draft, Art.
49a, which reads:
9
Cf. M. Faure, Economic Analysis of Strict Liability, PETL Strict Liability, 361 (no. 10 et seq.).
10
See, e.g., M. MartõÂn-Casals/J. Sole Feliu, Spain, in P. Widmer (ed.), Unification of Tort Law:
Fault (2005, hereafter cited as PETL Fault), no. 8 et seq.; further supra Art. 4:102 no. 9; Art.
4:202 no. 8±9.
96 Koch
Chapter 4. Liability Based on Fault Art. 4:202
2. Definitions
a) Enterprise
Enterprises obviously include business entities and organizations. How- 14
ever, in addition the state or non-profit organizations can fall under this
term as long as they pursue an economic or professional purpose by their
work (unless it is in pursuance of a governmental or regulatory function).
The same is true for individual professionals who spread the workload for
their profession or other business goal by employing auxiliaries or by using
technical equipment.
The enterprise need not aim to be profitable: What counts is an activity 15
that involves a certain co-ordination of labour or machinery resources,
though not necessarily in a complex way. Nevertheless, gaining profit
from such an activity is a strong indicator towards the enterprise qualifica-
tion.
As the word ªlastingº indicates, the enterprise must be pursued on more 16
than just a temporary basis. This is by and large already expressed by the
reference to the ªeconomic or professional purposeº, which typically
involves more than just a momentary effort. However, this adjective expli-
citly excludes people who undertake a task that seems to be of a business
11
English translation according to the appendix to P. Loser-Krogh, Switzerland, in H. Koziol/B.
Steininger (eds.), European Tort Law 2002 (2003) 405 (426).
The original reads as follows: ªDie Person, die sich zum Betrieb einer Unternehmung mit
wirtschaftlich oder beruflich ausgerichteten TaÈtigkeiten einer oder mehrerer Hilfspersonen
bedient, haftet fuÈr den Schaden, der im Rahmen dieser TaÈtigkeiten verursacht wird, es sei
denn, sie beweise, dass die Organisation der Unternehmung geeignet war, den Schaden zu
verhuÈten.º
12
Supra at fn. 6.
Koch 97
Art. 4:202 Title III. Bases of Liability
nature, but which they only fulfil under rather extraordinary and excep-
tional circumstances, as is the case with people, for example, who have a
certain ± seemingly professional ± expertise which is unrelated to their
work life but is nevertheless shared with others at singular occasions. It
may well be that some DIY lovers form a construction gang of neighbours
helping each other mutually to build a house on the weekends. If such
organisation amounts to something resembling an enterprise in the above-
mentioned sense (which may already be difficult, e.g. for lack of a system
of subordination), it nevertheless will not fall under this Article, if only
because of the fact that their joint effort is not a lasting enterprise. This
would be different, however, if this singular building project would be
repeated elsewhere on a more regular basis.
b) Auxiliaries
17 Auxiliaries are defined infra under Art. 6:102 13.
c) Technical Equipment
18 Technical equipment can be anything from computers to machinery, from
rather simple tools to complex production lines, though it must be used
for purposes of the enterprise in question, thereby forming part of its orga-
nisation.
d) Defect
19 The starting point for the victim's case under Art. 4:202 is a ªdefect of
the enterprise or of its outputº, which must be proven by himself in addi-
tion to the causal links leading from the defect to the harm in question.
Art. 4:202 para. 2 defines the term ªdefectº by pointing at safety stan-
dards which can objectively be expected from enterprises: While the
standard of conduct under Art. 4:102 focuses on the behaviour of the
tortfeasor, the emphasis here lies upon the enterprise as a whole (also
seen as an organization) and the work product of the enterprise. The
expectations towards an enterprise depend upon the circumstances of
the case such as the size of the enterprise in relation to others on the
market: A smaller county hospital will not be expected to be similarly
equipped as a university clinic centre, as long as the requirements for
going into operation at all were fulfilled: It must at least meet the stan-
dards expected from a comparable hospital offering the kinds of medical
services that it does. Those standards may vary over time ± a hospital will
not be liable for failing to provide treatment that only became available
after the damaging event. An airport will not have to account for failure
to use safety gadgets that were either not developed at the time or that
were unreasonably expensive then according to (objectively) reasonable
managerial evaluation.
13
See Art. 6:102 no. 6.
98 Koch
Chapter 4. Liability Based on Fault Art. 4:202
e) Output of an Enterprise
The reference to the enterprise's output makes it clear that the defect in 20
question does not necessarily need to have manifested itself directly within
the enterprise (or as a visible flaw in its structure or organization), but can
also be brought to light indirectly by its products or services. The latter
may be defective or imperfect per se (due to their lack of quality or their
inadequate design) or substandard due to a singular malfunctioning of an
otherwise proper production process or services standard. Both deviations
from standard quality benchmarks point at problems within the enterprise
(be it in its R&D, production or quality control unit).
Illustrations
1. V is shot by a terrorist T on board an airplane. The terrorist boarded the 23
plane at airport X operated by D. While it is proven that the gun came onto
the plane at X, it is unclear whether T carried it along when checking in (in
which case it is equally unsettled whether the staff of D failed to detect it, or
whether the scanners malfunctioned), or whether he managed to hide it on
the plane while it was refuelled.
If V's heirs sue D, they have to show that the airport X failed to perform
their duties properly, but they need not go into details whether the gun
14
See also the citations supra fn. 1. Cf. M. Faure/T. Hartlief, Towards an expanding enterprise
liability in Europe? How to analyze the scope of liability of industrial operations and their
insurers, [1996] Maastricht Journal of European and Comparative Law, 235.
15
Supra Introduction no. 2.
16
Cf. B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability, 395 (no. 154 et
seq.).
Koch 99
Art. 4:202 Title III. Bases of Liability
100 Koch
Chapter 5. Strict Liability Introduction
1. Overview
This Chapter addresses at least parts of those current forms of liability 1
which are not based on fault, but instead shift the focus to additional or
even entirely different aspects such as objective danger. As a result,
compensation can typically be obtained more easily than on the basis of
ordinary fault liability. In that respect this Chapter is building a bridge to
the previous one on fault liability, in particular to its Section 2.
The reason for this rather broad starting point is the fact that all jurisdic- 2
tions show a more or less wide spectrum of liabilities which ± while still
founded upon the idea of fault ± allow claims for compensation more easily
than under the traditional concept, e.g. by shifting the burden of proof or
by increasing the standards of due care 1. The ensuing problem therefore is
that there is no clear-cut concept of strict liability, not even within a single
jurisdiction. As has been rightly said, ªstrict liability and fault liability are
alternatives in terms of convenient classification and exposition, but closer
examination suggests that in terms of substance there is really a continuum
rather than two categoriesº 2.
In light of this fairly fundamental difficulty, the Group has decided to 3
highlight the most extensive variety of strict liability as one end of this
continuum by focussing first on the most extreme types of risk leading to
no-fault liability in the vast majority of countries. This is attempted by
Art. 5:101, which deals with ªabnormally dangerous activitiesº. Even this
end of the chain is not a single link, however: The defences listed in
Chapter 7, in particular those envisaged by Art. 7:102, also have to be
considered, which themselves depend on several additional factors.
Furthermore, national laws already paint a fairly varied picture of causes
of action which depart from the traditional notion of fault liability to the
extent that they should be counted as ªstrict liabilitiesº within the meaning
of the Principles even though these sometimes rather specific instances of
no-fault liability are not uniformly accepted in all jurisdictions.
1
B.A. Koch/H. Koziol, Comparative Conclusions, in B.A. Koch/H. Koziol (eds.), Unification of
Tort Law: Strict Liability (2002, hereafter cited as PETL Strict Liability) 395 (no. 2).
2
W.V.H. Rogers, England, PETL Strict Liability, 101 (no. 1). See also B.A. Koch/H. Koziol,
Comparative Conclusions, PETL Strict Liability, no. 156.
Koch 101
Introduction Title III. Bases of Liability
animate or inanimate objects, but may also apply in cases involving certain
dangerous human activity. Furthermore, it extends beyond current cases of
so-called ªabsolute liabilityº (where no or hardly any defences apply) to
no-fault liability in general, inasmuch as it refers to compensation for
harm caused by the materialization of a certain risk within the defendant's
sphere. However, this Chapter does not cover all cases where the defen-
dant may be liable despite the fact that he himself was not personally at
fault: While some doctrines may call vicarious liability to be ªstrictº as
well, liability for auxiliaries as addressed by Art. 6:102 is considered to fall
into a separate category for the purpose of these Principles 3.
3
See also the Basic Norm, Art. 1:101 no. 17.
4
See supra fn. 1.
102 Koch
Chapter 5. Strict Liability Introduction
5
Sec. 50 reads:
ª(1) The operator who runs a particularly dangerous activity for risk is liable for compensa-
tion of any damage resulting from the realisation of the characteristic risk inherent to this
activity, even if such activity is tolerated by the legal order.
(2) An activity is deemed to be particularly dangerous if, by its nature or by the nature of
substances, instruments or energies used thereto, it is prone to cause frequent or serious
damage, notwithstanding all care which can be expected from a person specialised in this field;
such assumption is justified, in particular, where another statute already provides a special
liability for a comparable risk.
(3) Special provisions governing the liability for a specific characteristic risk are reserved.º
(Translation by P. Widmer, Switzerland, PETL Strict Liability, 323, no. 97.)
6
§ 519 reads:
ª(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the activity, although he has exercised the
utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity
abnormally dangerous.º
7
Citations to the Restatement Third in the following refer to the version current as of Septem-
ber 2004, which ± as far as strict liability is concerned ± stems from the 1st Tentative Draft
published in 2001.
Compare in particular the wording of Art. 5:101 with Restatement (Third) of Torts: Liab.
Physical Harm, § 20, which is headed ªAbnormally Dangerous Activitiesº:
ª(a) A defendant who carries on an abnormally dangerous activity is subject to strict liability
for physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors; and
(2) the activity is not a matter of common usage.º
Note that §§ 21±23 of the Restatement Third include specific rules for animals, which has
been specifically rejected by this Group.
Koch 103
Art. 5:101 Title III. Bases of Liability
lature), German, Italian and Swiss practice so far deny the possibility of
extending their statutory regimes in this way at all 8. French law, on the
other hand, not only has a clause which (at least in today's understanding)
introduces general liability for ªdeeds of the things within one's keepingº
(the famous Art. 1384 al. 1 Code civil 9), courts furthermore seem to be quite
open for an extensive application of other rules (such as the loi Badinter) 10.
This is not only a difference in legislative style, but obviously also affects the
scope of strict liability altogether: A general clause by its nature tends to
allow no-fault liability in more instances than those addressed by singular
pieces of legislation focussing on very specific kinds of risks.
11 The spectrum of risks for which current legislation or case law provides
strict liability is therefore quite diverse in a comparative overview: English
law is very cautious and allows strict liability claims in only a very limited
number of cases (such as accidents with dangerous animals), whereas road
accidents fall under traditional tort law (in particular the law of negli-
gence). On the continent, however, the latter cases are considered to be
typical examples appropriate for strict liability 11. Yet, this widespread
accord when it comes to introducing strict liability for motor vehicles is
not fully reflected when it comes to tailoring the actual rules, which differ
in quite important aspects (such as the availability of defences and the
like). Furthermore, even those jurisdictions which seem to be more pre-
pared to introduce no-fault liability regimes are not proceeding in a coher-
ent manner: Although there is quite some overlap when looking at the
types of risks covered (e.g. animals, aircraft, mains and pipelines), the list
is certainly not identical in all these legal systems 12.
12 The (admittedly narrow) solution found for this Chapter therefore tries to
encompass the lowest common denominator as a minimum standard (Art.
5:101) while at the same time acknowledging existing regimes that already
go beyond (though not necessarily in the same way or extent).
104 Koch
Chapter 5. Strict Liability Art. 5:101
Comments
1. Introduction
This provision is intended to cover situations of extraordinary danger 1
requiring a correspondingly extraordinary allocation of responsibility. It is
therefore one pole of a spectrum of liability, which at the other end covers
intentional wrongful conduct.
Liability for abnormally dangerous activities is not focussing on the actual 2
conduct of the defendant as a cause of the victim's loss. In order to carry
on an activity within the meaning of this Article, it is therefore not neces-
sary to actually show some active or passive behaviour as long as one is in
control of a source of risk whose danger materializes. Liability under this
Article is not based on any sense of fault, no matter how slight it may be.
Even though the defendant may have exercised utmost care under both
objective and subjective standards, he will still be required to compensate
the loss caused by the source of danger within his sphere.
This is even the turning point for bringing the case under this Chapter 3
rather than the previous one: As long as the defendant has violated the
required standard of conduct, he will be liable for fault under Art. 4:101
(which is of course particularly true if the activity is prohibited altogether).
If the defendant engages in some dangerous activity, the level of due care
will be higher according to Art. 4:102, so that it may even be easier for
the plaintiff to succeed on the basis of fault liability.
Strict liability as addressed here steps in if a highly significant risk of harm 4
remains despite all proper precautions taken by the defendant. On the
other hand, failure to exercise reasonable care when pursuing an abnor-
mally dangerous activity within the meaning of this Article may also lead
to an additional basis of liability for the victim under these Principles,
which may even be directed against the same defendant: Not only can the
keeper of a source of abnormal danger be liable under this Article, but
may have to account for his additional fault when dealing with this risk.
An important limit to strict liability is expressed by the second half of the 5
first paragraph of this Article: Only damage ªcharacteristic to the risk pre-
sented by the activity and resulting from itº can be recovered under this
Koch 105
Art. 5:101 Title III. Bases of Liability
rule, which reduces its scope to those cases where the reason for establish-
ing strict liability, i.e. the abnormal risk, is evidenced by the cause of the
harm: If fireworks stored in a warehouse explode, harm is caused by the
particular risk inherent in the fireworks (the danger of unintended explo-
sions and the possible damage ensuing from such blasts). If an employee
negligently drops a box of fireworks onto a passer-by, that person may be
injured, but not because of the abnormal risk inherent in the explosives,
but because of the sheer weight of the box as such (which is not an abnor-
mal risk falling under this rule) 1.
2. Definitions
a) Activity
6 As indicated before, the term ªactivityº is not meant to limit the scope of
this Article to risky behaviour. The very having of certain things may
create a risk of danger to others no matter how much care is taken. On
the other hand, under a system of responsibility there must be some
connection between the thing and the person liable to make compensation:
it must be, as one might say, ªin his sphereº. The Group has decided to
follow the terminology of the Swiss Draft Revision Art. 50 because we
think ªactivityº carries the required sense 2.
b) Abnormal Danger
7 Apart from the fact that an activity in the afore-mentioned sense must not
be a matter of common usage (see infra), it must create a ªforeseeable
and highly significant risk of harm even when all due care is exercised in
its managementº. As indicated by the following explanation, there are two
factors which are most important in weighing the risk in this respect: the
frequency as well as the gravity of the harm it may bring about. To this
extent, the definition resembles § 20 lit. b of the American Restatement
3rd of Torts 3. While the frequency can be determined by way of the theory
of probabilities, the gravity of the harm is not only assessed in light of the
compensation necessary to restore the harmed interests, but equally the
value of such interests within the legal system. Higher-ranking rights such
as life or bodily integrity are also better protected under this rule as is the
case under all jurisdictions in general.
c) Common Usage
8 ªAn activity is plainly of common usage if it is carried on by a large fraction
of the people in the communityº 4, the community thereby being those at
risk under the circumstances. Even though the actual individual might
1
Cf. Restatement (Third) of Torts: Liab. Physical Harm, § 24 cmt. a.
2
See also the broad use of the word ªactivityº in Art. 3:101 (ªactivityº as encompassing ªactiv-
ity or conductº for the purpose of these Principles).
3
See supra fn. 7.
4
Restatement (Third) of Torts: Liability for Physical Harm (Basic Principles), § 20 cmt. j.
106 Koch
Chapter 5. Strict Liability Art. 5:101
have engaged in such activity for his very first time, he can still resort to this
exception as long as his activity is typically carried on by the average
person. This has convincingly been explained by pointing at reciprocity: If
many actors create a significant risk by their activity, such danger is never-
theless ªimposed by the many on each otherº 5.
Therefore, driving a motor car is certainly a matter of common usage and 9
for that reason falls outside the scope of this Article (even though it may
be subject to strict liability under national regimes sustained by Art.
5:102), whereas transporting highly explosive chemicals in a huge tanker
may not be excluded by this provision. Setting off a few pieces of fireworks
on New Year's Eve is a custom practised by a large number of people,
whereas large-scale, long-lasting firework displays with hundreds of rockets
and involving substantial organisation and coordination is not: Only the
prior activity will be a matter of common usage, whereas harm caused in
the course of the latter kind of activity may lead to strict liability. This is
obviously even more so true for companies producing and storing fire-
works. Even though dams are certainly no longer exceptional constructions
per se, most of them will nevertheless be ªabnormally dangerousº
inasmuch as their mere existence constitutes a certain danger which is not
commonly achieved by household water butts.
While an activity pursued by a large number of people will typically be a 10
matter of common usage, the reverse is not necessarily true: Even if only
few people pursue an activity which brings about a highly significant risk
of harm, it may still be of common usage. This is true, for example, for
certain public utilities: Electricity supply is typically provided by only few
companies but will still be considered an everyday activity falling under
Art. 5:101 para. 2 lit. b, apart from the fact that this activity reaches (again)
a large number of people. The comment to § 20 of the American Restate-
ment of Torts, Third, rightly argues that ªthe more common the activity,
the more likely it is that the activity's benefits are distributed widely among
the communityº, and concludes that ªthe appeal of strict liability for an
activity is stronger when its risks are imposed on third parties while its
benefits are concentrated among a few.º 6
The qualification of an activity to be of ªcommon usageº may change over 11
time: A previously exceptional activity may later become popular and
thereby fall out of the scope of Art. 5:101. This was, for example, the case
in the United States with airplanes whose operation previously was con-
sidered to be abnormally dangerous but nowadays no longer falls under
any general strict liability regime in most states 7.
It is important to note that liability under this Article only steps in if both 12
elements constituting ªabnormal dangerº are given. Therefore, even
5
Restatement (Third) of Torts: Liab. Physical Harm, § 20 cmt. j.
6
Restatement (Third) of Torts: Liab. Physical Harm, § 20 cmt. j.
7
Schwartz, USA, PETL Strict Liability, 351 (no. 17).
Koch 107
Art. 5:101 Title III. Bases of Liability
8
B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability, no. 98.
9
B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability, no. 100±102.
10
B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability, no. 75.
108 Koch
Chapter 5. Strict Liability Art. 5:101
Illustrations
Since the scope of this Article was meant to be limited to extreme types of 21
dangers, only few activities will fall under this rule in practice. The vast
majority of situations will be governed in particular by Chapter 4 of these
Principles, as has already been explained above.
A typical example of an ultra-hazardous activity which is not of common 22
usage will be blasting 11, even though the circumstances will certainly play
a decisive role: Whereas the destruction of a building in the middle of a
highly populated area will certainly count as an activity governed by Art.
5:101, explosions performed in a deserted test field may not create the
kind of risks envisaged by para. (2)(a) 12.
11
See Restatement (Third) of Torts: Liab. Physical Harm, § 20 cmt. e and the Reporters' Note
thereto.
12
ª[B]lasting in a developed area of the city creates a highly significant risk in a way that blast-
ing on a deserted mountainside does not.º Restatement (Third) of Torts: Liab. Physical
Harm, § 20 cmt. k.
Koch 109
Art. 5:102 Title III. Bases of Liability
Comments
1. Introduction
1 As indicated in the introduction to this Chapter, its provisions are meant to
define a minimum standard, but shall by no means prevent the expansion
of the notion of strict liability in individual jurisdictions (as is already the
case). Quite the contrary: A gradual expansion may prove to be desirable,
as long as it neither deviates from internal standards of the respective juris-
diction itself nor from external standards (as compiled here) in a way which
overturns the system as a whole.
13
See the inventory by B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict Liability,
no. 4 et seq.
110 Koch
Chapter 5. Strict Liability Art. 5:102
14
Supra at fn. 8.
15
Art. 50 para. 2 defines the dangerousness of an activity necessary to trigger strict liability
under para. 1. It concludes by saying that such dangerousness is particularly given in those
cases where special legislation has already introduced strict liability ªfor comparable risks.º
Koch 111
Introduction Title III. Bases of Liability
1. Overview
1 This chapter addresses issues usually covered under the heading of vicar-
ious liability. As explained below, the generic term ªliability for othersº
has been preferred, since this chapter addresses a variety of situations
which may not fall under a single rule. First comes the liability for acts of
a minor or insane person, where in most jurisdictions, the liability of the
person in charge is based on lack of care, with a simple reversal of the bur-
den of proof. There is a growing tendency to make the person in charge
strictly liable, but the Group agreed to keep with a common denominator
position. Then comes the situation of the principal (in the widest possible
sense of the term) liable for damages caused by his agents, which may be
described, under most systems, as a case of strict liability with limited possi-
bilities of exoneration if any. This position is reflected in the Principles, yet
making clear that this would not apply to the case of the independent con-
tractor.
1
On the terminology issue, see S. Galand-Carval, Comparative Report on Liability for
Damages Caused by Others, in J. Spier (ed.), Unification of Tort Law: Liability for Damage
Caused by Others (2003, hereafter cited as PETL Liability for Others) 289 (no. 1).
112 MoreÂteau
Chapter 6. Liability for Others Art. 6:101
Comments
1. Introduction
A comparative review of the national systems 1 reveals the existence of 1
three different models as far as children are concerned. Under a first
2
Cf. supra Introduction to Chapter 5, no. 4.
1
S. Galand-Carval, Comparative Report, PETL Liability for Others, no. 17.
MoreÂteau 113
Art. 6:101 Title III. Bases of Liability
2. Definitions
a) Person in Charge
4 The term may cover the parent(s) in the case of a minor, or any person or
institution being in charge. This is not meant to apply to a child looked
after for a short period of time. In most jurisdictions, it seems that the
tendency is to make persons temporarily in charge liable on the basis of
negligence only 2. In the case of an adult subject to mental disability, this
may be an individual person or an institution.
b) Minor
5 The question is determined by the relevant national law, the age of major-
ity being 18 in most jurisdictions.
c) Mental Disability
6 The point needs to be decided on a case by case basis, evidence of mental
disability being easier where the person is looked after by a specialised
institution or placed under legal protection. The Principle does not extend
to persons subject to physical disability, covered by Art. 4:102 (2).
2
S. Galand-Carval, Comparative Report, PETL Liability for Others, no. 34.
114 MoreÂteau
Chapter 6. Liability for Others Art. 6:102
3. Scope of Liability
Liability for damage caused by minors or mentally disabled persons may 7
exist whenever the child or the mentally disabled causes it, even in the
absence of fault or negligence. The liability does not stem from a fault or
negligence on the part of the minor or the mentally disabled person but is
based on the duty to supervise.
For instance, an eight-year old child does not cross the street with the 8
necessary speed and causes an accident. The parents of the child did not
prevent this from happening, although they should have intervened. The
parents may be liable even though the child may not be.
Children above a certain age can themselves be liable if they have infringed 9
the standard of care that the law sets for them. 3 This age may not be set in
a fixed way but it is commonly agreed that this may be possible for certain
behaviour of children over the age of seven, for example when they have
reached twelve years of age. The position of French law ruling that even
an infant such as a four year old may be acting in a faulty way does not
meet the standard of conduct as defined at Art. 4:102 of the Principles.
The Group agrees that parents and children can be liable on a solidary 10
basis. Such cases are likely to occur where children are growing near to
the age of majority, in rare cases where the parents fail to meet the burden
of proof.
Comments
1. Introduction
Everyone reading this article will think about the relationship between 1
employer and employee. This article goes beyond the scope of parties
bound by a contract of employment, however, a point which was vividly
discussed. The use of the term auxiliary reveals that the Principle may
apply not only to the business sphere but also to the domestic one, for the
reasons explained in the introduction to this chapter 4. This means that the
auxiliary may be an employee but also anyone willing to help, acting under
the supervision of the liable party. Comparative studies reveal that a major-
3
See Art. 4:102 para. 2 and no. 14 et seq. thereto.
4
Supra Introduction no. 5.
MoreÂteau 115
Art. 6:102 Title III. Bases of Liability
2. Definitions
a) Auxiliaries
6 The term covers the employee acting under a contract of employment, in a
business or domestic context. It includes the regular or occasional helper,
whether acting gratuitously or not. The term implies some form of subordi-
nation or integration or a task fulfilled under the supervision or control of
the party held liable. The use of the plural indicates that the individual
employee need not be identified as long as it is established that it was a
staff member of the employer.
b) Scope of Functions
7 As explained above, this loose term is to be understood in the widest
manner, indicating a linkage between the task or functions and the act in
question.
c) Independent Contractor
8 The term indicates a party bound by a contract to the one the victim wants
to make liable (the defendant) and yet acting in an independent manner
without supervision or control 7.
5
S. Galand-Carval, Comparative Report, PETL Liability for Others, no. 41±42.
6
S. Galand-Carval, Comparative Report, PETL Liability for Others, no. 46.
7
See infra no. 9 et seq.
116 MoreÂteau
Chapter 6. Liability for Others Art. 6:102
3. Scope of Liability
a) Independent Contractors
Art. 6:102 (2) addresses the case of the truly independent contractor. The 9
dividing line between dependent and independent work is indeed not easy
to draw, especially in the building trade. In most jurisdictions, the rule is
that there is no vicarious liability in tort for harm caused by an independent
contractor: ªit would seem unfair to impose liability on a defendant who
exercises no control whatsoever on the wrongdoer and the way he
performs his taskº 8.
Where D engages a chauffeur, the latter is an auxiliary and D is liable for 10
the driving of the chauffeur. Where D takes a taxi, the taxi driver is an
independent contractor, who is in a much better position to insure the risk.
There is no room for liability for the independent contractor under this 11
rule. Fault liability on the part of the principal may, however, arise from
negligent choice (culpa in eligendo), improper supervision or non-delegable
duty wherever applicable under national law.
However, any indication that the so-called independent contractor was 12
acting under the subordination or supervision or control of the defendant
may change this person into an auxiliary, the key-word being proximity.
As a rule, the independent contractor is not integrated into the organisa-
tional structure of the enterprise (when acting in a business sphere) or
into the household activity (when acting in a domestic sphere).
b) Borderline with Contract Liability
When an employee damages goods belonging to one of his employer's 13
clients (e.g. a car left for repairs in the employer's garage), is the
employer's liability to be dealt with in tort or in contract 9? Most legal
systems distinguish vicarious liability in tort and liability in contract. More
often than not, the liability may be more stringent when based on contract.
Few systems have a clear rule like the French one discarding tort liability
wherever a contract action is possible 10. However, even where such a rule
does exist, it does not eliminate the borderline problem, in the sense that
the borderline between tort law and contract law is drawn differently from
system to system.
According to the Principles of European Contract Law, Art. 8.107 (ex art. 14
3.107) ± (Performance Entrusted to Another), ª[a] party who entrusts
performance of the contract to another person remains responsible for
performance.º This provision has the effect to extend contract liability to
situations which may otherwise be covered by tort liability. The Group
8
S. Galand-Carval, Comparative Report, PETL Liability for Others, no. 64.
9
This is question E.3. in the questionnaire to PETL Liability for Others, 5.
10
Strangely enough, this rule is not always applied in the field of vicarious liability, where the
courts frequently apply tort rules rather than the contract ones. See S. Galand-Carval, France,
PETL Liability for Others, 97 (no. 42±43).
MoreÂteau 117
Art. 6:102 Title III. Bases of Liability
does not intend to contradict such a principle. Tort liability for damage
caused by others may sometimes yield to general principles of contract
law, such as those produced by the Lando Commission or, more frequently
than not, to rules pertaining to specific contracts.
15 The following example shows that the borderline is far from being clear. D,
a company, offers cleaning services to commercial customers. X, one of its
employees, is required to clean P's jewellery shop. While on the premises,
X steals 50 Cartier watches 11. D may be sued under the present Principle,
yet with a discussion whether the auxiliary's criminal act was within the
scope of his functions. A claim based on contract would probably be stron-
ger, since there is a clear violation of the cleaning contract.
c) Fault and Liability of the Auxiliary
16 As explained in the introduction to this chapter, liability for damage caused
by others is based on the risk caused by the activity or the benefit derived
from it, risk and profit always falling on the same side.
17 May this justify liability in cases where the auxiliary is not at fault, like in
the case of an employed surgeon suffering a sudden heart attack whilst
performing a delicate operation? The Group agreed that liability for others
may only be justified in situations where the auxiliary should be personally
liable, namely where his conduct is a violation of the required standard of
conduct.
18 This does not mean that the victim will be deprived of any remedy in other
cases. In the surgeon's case, the hospital may be liable in contract or in tort
in a wide array of circumstances, such as situations where there is evidence
that as a consequence of the employer's policy to reduce labour costs, the
employees happen to be unreasonably overworked 12. Any infringement of
labour regulations may indeed corroborate a claim based on negligence.
19 Regarding the auxiliary's personal liability, the Group acknowledged the
existence of the following two options, expressing a preference for the sec-
ond one:
(1) exemption from liability for a damage caused to a third party in case of
slight or medium negligence, which seems to be the view of the major-
ity of legal systems 13;
(2) liability of the auxiliary, making him a potential defendant in a tort suit,
combined with a right of recourse against the employer in case of slight
or medium negligence.
20 However, no specific rule is to be applied to the liability of the auxiliary,
which is fault-based and governed by the default rule under these Princi-
ples.
11
This is case no. 12 in the questionnaire to PETL Liability for Others, 7.
12
See Art. 4:202 no. 5.
13
S. Galand-Carval, Comparative Report, PETL Liability for Others, no. 57.
118 MoreÂteau
Chapter 6. Liability for Others Art. 6:102
MoreÂteau 119
Title IV. Defences
Introduction
1. Overview
1 Title IV covers quite a diverse set of issues, at least from the perspective of
some legal systems. It collects issues which may be raised by the defendant
to repel, in whole or in part, what would otherwise be a basis of liability
established by the plaintiff. It has been said that ª[i]t is practically impossi-
ble to bring these defences within a conceptual framework, which is valid
for the . . . systems under examinationº 1. We have nevertheless tried to
bring them together, though the label under which we placed them may
seem to have a common law connotation.
2. Terminology
2 As at other occasions, for lack of better alternatives the Group has decided
to use an English term which conveys most of the meaning that it is
intended to cover, but may be misunderstood to express its common law
meaning exclusively. The use of the word ªdefencesº as a heading to this
Title was, however, not meant to list only arguments that lead to full
exoneration of the defendant: Art. 7:101 para. 3 and Art. 7:102 also allow
a mere reduction of liability, although only in very limited cases.
3 Furthermore, Title IV is not the only place for the defendant to go if he
seeks to avoid liability: There are, of course, counter-arguments to be
found throughout the Principles: If the plaintiff fails to establish a basic
requirement of liability (whether because he fails to produce the necessary
factual evidence or because the defendant rebuts that evidence), then the
claim fails and defences do not come into play. This is also true if one of
the requirements involves a weighing process: If one of the factors of Art.
2:102, for example, is so weak in a particular case that the interest involved
deserves no protection under these standards, the claimant's case ends. If
the requirements of factual causation are not met, that is equally the end
of the case. This is also true if the tortfeasor does not meet the required
standard of conduct due to his age or disabilities (Art. 4:102 para. 2).
What these latter points have in common, however, is that they are for
1
W. van Gerven et al., Torts (The Common Law of Europe Casebooks, 2000) 356.
120 Koch
Title IV. Defences Introduction
the plaintiff to prove (though the intricacies of the law of evidence need to
be ignored for the time being). The points collected under this Title come
into play when the ball is already within the defendant's field.
2
U. Magnus/M. MartõÂn-Casals (eds.), Unification of Tort Law: Contributory Negligence (2004).
Koch 121
Art. 7:101 Title IV. Defences
Comments
1. Introduction
1 As mentioned before, this Article stems from the Group's exercise on
wrongfulness and includes arguments which a German-speaking lawyer
would call ªRechtfertigungsgruÈndeº ± grounds of justification. Seen from
that perspective, they are strongly tied to our concept of the standard of
conduct (cf. Art. 4:102).
2 It is undisputed that in establishing the violation of a legal duty one also
has to consider whether the actor simply defended his object of legal
protection against an unlawful attack (self-defence) or whether he acted
under necessity, or because the help of the authorities could not be
obtained in time (self-help) or with the approval of the injured person, his
acceptance of the risk, or by virtue of some lawful authority. These grounds
of justification are nothing more than the result of weighing the interests in
some typical situations. This can be seen, for example, when self-defence is
at stake: While the unlawfulness of the attack is certainly a very important
factor, it is not the only one to be considered. It is commonly recognised
that the endangered interests of the person attacked and the interests of
the assailant menaced by the self-defence must be taken into account and,
therefore, in defending property of inferior value one is not allowed to kill
or even wound the attacker seriously. By the same token, consent of a
person does not justify killing him.
3 The Group has also discussed whether we should include further issues, in
particular illegality (ex turpi causa non oritur actio), but we found a good
deal of uncertainty on the scope of that defence in existing systems and
we doubt whether we could formulate any principle on this without further
122 Koch
Chapter 7. Defences in General Art. 7:101
work. Upon weighing the pros and cons, we finally decided to leave that
aspect out, at least for the time being.
The wording of para. 2 requires that the validity of the arguments under 4
the first paragraph have to be considered in light of the reasons why the
tortfeasor is considered to be held liable in the first place ± the circum-
stances of the case have to be looked at comprehensively and not one-
sidedly.
The whole set of defences initially was meant to serve in a weighing of 5
involved interests. This flexible approach is rather limited, however, with
regard to the grounds of justification listed here. As the rule reads now,
any such reason leads to the exclusion of liability, whereas a mere reduc-
tion should only be considered in ªextraordinary casesº (para. 3). A similar
policy is at least in part expressed by Swiss Art. 52 OR, where self-defence
and self-help lead to full exoneration, while necessity falls under a more
flexible approach and leaves it for the judge to decide to what extent the
defendant may go free 1, which is also true for the consent of the victim as
regulated by Art. 44 para. 1 OR 2.
The solution that we have adopted was rather controversial, since some of 6
us were of the opinion that all defences (including these justifications)
could generally be used for reducing liability (though up to 100%, when
liability would be excluded at all). One example discussed in that context
concerned the problem of so-called wrongful self-defence ± someone
attacks another because he erroneously thinks that he himself is being
attacked by that person, which does not really allow a clear-cut answer in
the sense of an all-or-nothing liability. Similar examples may concern cases
where someone negligently puts himself into a state of danger and then
takes advantage of someone else's goods in order to rescue himself ± there
are certainly constellations imaginable where the weighing of the various
elements of these facts may lead to a reduction, but not to an exclusion of
liability. We all agreed, therefore, that there are cases possible where a
mere reduction of liability is the better solution as compared to a complete
exoneration, and Art. 7:101 (3) is meant to serve that goal.
2. Definitions
a) Self-Defence 3
As the wording of Art. 7:101 (1)(a) already indicates, a person may defend 7
his protected interests against illegitimate attacks by others even if he
thereby causes harm to the attackers. He may therefore not be liable for
1
This is also the law in Italy (Art. 2045 Codice civile speaks of an ªequo apprezzamento del
giudiceº in cases of necessity).
2
Art. 46a (which now also mentions what we consider as Art. 7:101 (e) ± ªlawful authorityº)
and Art. 59 of the new Swiss draft retain this duality.
3
See the text complementing the casebook on tort law cited supra in fn. 1 of the Introduction
available at http://www.law.kuleuven.ac.be/casebook/tort/heading3.2.4.B.pdf.
Koch 123
Art. 7:101 Title IV. Defences
4
Infra no. 14±15.
5
See the text complementing the casebook on tort law cited supra in fn. 1 of the Introduction
available at http://www.law.kuleuven.ac.be/casebook/tort/heading3.2.4.C.pdf.
6
The defence of someone else's interests against the attacks of the plaintiff are considered to
be cases of self-defence under many jurisdictions, see, e.g., H. Koziol, OÈ sterreichisches Haft-
pflichtrecht vol. I (3rd ed.1997) no. 4/63.
7
Cf. the wording by Lord Goff in In Re F, [1990] 2 AC 1 (at 74), also cited by the text quoted in
fn. 5:
ªThat there exists in the common law a principle of necessity which may justify action which
would otherwise be unlawful is not in doubt. But historically the principle has been seen to
be restricted to two groups of cases, which have been called cases of public necessity and cases
of private necessity. The former occurred when a man interfered with another man's property
in the public interest ± for example (in the days before we could dial 999 for the fire brigade)
124 Koch
Chapter 7. Defences in General Art. 7:101
the destruction of another man's house to prevent the spread of a catastrophic fire, as indeed
occurred in the Great Fire of London in 1666. The latter cases occurred when a man inter-
fered with another's property to save his own person or property from imminent danger ±
for example, when he entered upon his neighbour's land without his consent, in order to
prevent the spread of fire onto his own land.
ªThere is, however, a third group of cases, which is also properly described as founded upon
the principle of necessity . . . These cases are concerned with action taken as a matter of
necessity to assist another person without his consent. To give a simple example, a man
who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby
saving him from injury or even death, commits no wrong. But there are many emanations
of this principle, to be found scattered through the books. These are concerned not only
with the preservation of the life or health of the assisted person, but also with the preserva-
tion of his property (sometimes an animal, sometimes an ordinary chattel) and even to
certain conduct on his behalf in the administration of his affairs. Where there is a pre-existing
relationship between the parties, the intervenor is usually said to act as an agent of necessity
on behalf of the principal in whose interests he acts, and his action can often, with not too
much artificiality, be referred to the pre-existing relationship between them. Whether the
intervenor may be entitled either to reimbursement or to remuneration raises separate ques-
tions which are not relevant in the present case.º
Koch 125
Art. 7:102 Title IV. Defences
Action justified under Art. 7:101 (1)(c) is therefore limited to fact settings
where official help from the authorities is not available in due time, such
as when the owner of stolen goods accidentally discovers his property in
the hands of someone else who is on the move. Self-help may also be
justified in further instances when the law so provides, though this typically
will only concern very narrow scenarios.
e) Lawful Authority 9
17 If someone causes harm when fulfilling a legal duty imposed upon him, or
if he acts within the limits of some authority or permission to act given to
him by law, the victim's claim for damages in tort must fail unless the
defendant exceeded his lawful authority or otherwise acted in violation
thereof. The most obvious example in this context concerns a police offi-
cer's power to arrest. In modern conditions, an activity may require an offi-
cial permit; whether or not such a permit would fall within this defence may
turn on its proper interpretation.
(1) Strict liability can be excluded or reduced if the injury was caused by an
unforeseeable and irresistible
a) force of nature (force majeure), or
b) conduct of a third party.
8
Consent to damage faces public policy limitations ± it is no defence for a killer that his victim
was suicidal and wanted to be killed.
Most jurisdictions would also mention medical treatment in this context, even though some
(particularly doctors) dispute the fact that it is a harmful activity unless justified by the
patient's consent.
9
See the text complementing the casebook on tort law cited supra in fn. 1 of the Introduction
available at http://www.law.kuleuven.ac.be/casebook/tort/heading3.2.4.A.pdf.
126 Koch
Chapter 7. Defences in General Art. 7:102
(2) Whether strict liability is excluded or reduced, and if so, to what extent,
depends upon the weight of the external influence on the one hand and the
scope of liability (Art. 3:201) on the other.
(3) When reduced according to paragraph (1)(b), strict liability and any
liability of the third party are solidary in accordance with Art. 9:101 (1)(b).
Comments
1. Introduction
The defences listed here basically reflect the common core of most 1
European countries with respect to no-fault liability regimes 10. These
defences only apply to instances of strict liability (supra Chapter 5), but to
all varieties thereof, including those national varieties referred to by Art.
5:102, to the extent they are not limited by law (which is, for example, the
case under some countries' rules governing the impact of nuclear energy 11).
As in the case of the defences falling under Art. 7:101, the ultimate decision 2
whether or not the defences listed here apply depends upon the same kind
of weighing exercise explained earlier 12: The conditions of establishing
strict liability are compared with the type and degree of force majeure or
third-party conduct, so that the higher the risk leading to strict liability,
the less likely such external influence will serve as a defence.
Such external influences can hardly ever supersede the impact of the inher- 3
ent exceptional danger of an object, particularly not in those cases where
the type and extent of the resulting harm were only possible due to innate
features of the object, even though the damage was triggered by some
external source (as is the case with accidents in nuclear power plants 13). It
therefore seems to be highly problematic in such cases to completely ignore
10
Cf. B.A. Koch/H. Koziol, Comparative Conclusions, in B.A. Koch/H. Koziol (eds.), Unifica-
tion of Tort Law: Strict Liability (2002, hereafter cited as PETL Strict Liability) 395 (no. 109
et seq.).
11
This deviation from the Paris Convention is the law, for example, in Austria, Germany and
South Africa. It also extends to ground damage by aircraft falling under §§ 146 et seq. Aus-
trian Luftfahrtgesetz (Aviation Act, LFG); similarly in Spain. It is further important to note
that the French statute on road accidents excludes such defences altogether.
See also § 522 of the American Restatement of Torts Second, which disallows such defences
altogether:
ªOne carrying on an abnormally dangerous activity is subject to strict liability for the resulting
harm although it is caused by the unexpectable
(a) innocent, negligent or reckless conduct of a third person, or
(b) action of an animal, or
(c) operation of a force of nature.º
12
Supra Art. 7:101 no. 5.
13
Many jurisdictions therefore substantially narrow or even exclude the admissibility of
defences against nuclear liability. See B.A. Koch/H. Koziol, Comparative Conclusions,
PETL Strict Liability, no. 109. However, the extent of liability for nuclear power plants is
limited in some jurisdictions: B.A. Koch/H. Koziol, Comparative Conclusions, PETL Strict
Liability, no. 139 fn. 268.
Koch 127
Art. 7:102 Title IV. Defences
the dangerousness of a particular object and to leave the victim with the
damage. The Group thereby intended to follow the motto ªthe higher the
risk, the lower the degree of possible defencesº. Para. 2 of this Article
underlines this concept by referring to the reasons for establishing strict
liability in the particular case at hand (the ªconditionsº of liability thereby
include the general conditions listed in Title II as well as the special
conditions addressed in Chapter 5). The defences listed in this Article will
therefore rarely be admissible in most cases falling under Art. 5:101, e.g. if
damage is caused by blasting 14. Nevertheless, such defences may have to
be considered in cases falling under Art. 5:102.
4 Even though it may be considered a defence procedurally, it goes without
saying that failure to establish strict liability in the first place is not a
ªdefenceº within the meaning of this Article, even though it effectively
bars recovery of damages under these rules. This is particularly true if
harm is caused by an abnormally dangerous object, but not due to its inher-
ent risks (e.g. if harm is caused by the mere weight of a box of a dynamite,
but not due to its inherent risk of an explosion, even though this may lead
to liability for fault) 15.
2. Definitions
a) Force Majeure
5 Probably the most common defence to strict liability is the reference to
some external influence which caused or at least contributed to the harm
with elemental force. The strongest type of such impact is typically referred
to as ªAct of Godº, which commonly relates to natural events, while ªforce
majeureº sometimes seems to be broader and to further include other
substantial external impact. After thorough discussion, also in light of the
various uses in international conventions, we have decided to retain the
term force majeure at least as an explanatory term in brackets, even though
it may be loaded with the kind of information that lawyers in various juris-
dictions attribute to that technical term. While war or terrorism also often
fall under that notion, which is rather conduct of third parties, we reduced
the meaning to natural events of massive impact. It is frequently addressed
in international conventions as an ªexceptional natural phenomenon that is
not avoidable, unpredictable and irresistibleº 16.
6 Force majeure only comes into play as a trigger of the risk attributed to the
defendant, for example if lightning strikes a warehouse storing explosives.
14
Cf. also supra at fn. 11 for nuclear accidents.
15
Cf. Art. 5:101 no. 5.
16
Basel convention on the control of transboundary movements of hazardous wastes and their
disposal, Protocol 1999, Art. 4, 5.b; cf. Art. 8.a of the 1993 Convention on civil liability for
damages resulting from activities dangerous to the environment (Lugano Convention,
ªnatural phenomenon of an exceptional, inevitable and irresistible characterº), furthermore
Art. III.2.a of the 1969 Brussels Convention internationale sur la responsabilite civile pour
les dommages dus aÁ la pollution par les hydrocarbures (ªexceptional, unforeseeable and irre-
sistible natural phenomenaº).
128 Koch
Chapter 7. Defences in General Art. 7:102
17
See W.V.H. Rogers, Comparative Analysis, in W.V.H. Rogers (ed.), Unification of Tort Law:
Multiple Tortfeasors (2004) no. 39.
Koch 129
Art. 8:101 Title IV. Defences
Comments
1. Overview
1 This Article embodies the Principle according to which a victim should not
be entitled to recover damages for those losses that he or she has contribu-
ted to cause and labels it as ªcontributory conduct or activityº. Most coun-
tries regard this as an essential principle not only of tort law, but also of
other areas of law, such as contract law 1, and point out that in practice it
is one of the most widely-used defences.
2 The Article formulates this general principle and two subprinciples:
3 a) The general principle establishes that the exclusion or the reduction of
liability is subject, mutatis mutandi, to the same rules that apply when
establishing liability of the tortfeasor. In this sense, this Article uses the
so-called ªmirror-imageº idea as the most intuitive and all-inclusive way
of formulating the principle.
4 b) The subprinciples (2) and (3) refer to two cases of ªidentificationº, i.e.
cases in which the conduct or the activity of a person other than the person
to whom an award of damages is made is taken into account in order to
exclude or reduce recovery of damages.
2. Terminology
5 The expression ªcontributory conduct or activityº departs from the termi-
nology used in all current legal systems. It aims at overcoming the short-
comings arising not only from a widely diverging terminology (contributory
negligence, comparative negligence, Mitverschulden, concurrencia de
1
See U. Magnus/M. MartõÂn-Casals, Comparative Conclusions, in U. Magnus/M. MartõÂn-Casals
(eds.), Unification of Tort Law: Contributory Negligence (2004, hereafter cited as PETL
Contributory Negligence), no. 2±4 and O. Lando/H. Beale (eds.), Principles of European Con-
tract Law, Part I and II (2000), notes to Articles. 9:504 and 9:505.
130 MartõÂn-Casals
Chapter 8. Contributory Conduct or Activity Art. 8:101
2
See G. Schwartz, United State, PETL Contributory Negligence, no 2 and, in more detail, D.
Dobbs, The Law of Torts (2000) 494 et seq.
MartõÂn-Casals 131
Art. 8:101 Title IV. Defences
3
In this sense, see Principles of European Contract Law (supra fn. 1), Art. 9:504 (Loss Attribu-
table to Aggrieved Party) and Art. 9:505 (Reduction of Loss).
4
See U. Magnus/M. MartõÂn-Casals, Comparative Conclusions, PETL Contributory Negligence,
no. 9 and 45±46.
132 MartõÂn-Casals
Chapter 8. Contributory Conduct or Activity Art. 8:101
upon him or her by anybody, gives rise to the consequence that he or she
will have to face the adverse consequences resulting from his or her
conduct. However, in this case, the same standard of care applicable to
establishing fault of the tortfeasor applies. The Principles of Chapter 4
apply here mutatis mutandis.
A ªspecifically dangerous activityº is one that would give rise to strict liabi- 14
lity of the victim if he or she had been the tortfeasor. Since everyone must
bear the adverse consequences of the acts and events that belong to his or
her sphere of risks, the hazards involved in the dangerous activity
performed by the victim may also qualify as contributory activity if they
contribute to causing the damage or to its aggravation and, therefore, they
may also give rise to reduction. In this sense, the Principles of Chapter 5
apply mutatis mutandis.
Illustration 1. P takes his cat to the veterinary surgeon, D, in a country where
strict liability for animals, even if domestic, applies. Due to D's negligence, P
sustains serious scratches while assisting D by holding the cat. P files a claim
against D but D argues that P is the keeper of the animal and this is a risk
that he has to bear. The judge holds D liable, but reduces damages on the
grounds of contributory activity of P.
If the dangerousness of the activity is such that it would not have submitted 15
the victim (had he been the tortfeasor) to a strict liability regime according
to national courts it may, nevertheless, be taken into account when
establishing the standard of care in the conduct of the victim. The more
dangerous the activity is, the greater care will be required from the victim.
In this sense, Art. 4:201 may also apply mutatis mutandis. In the cases of
ªspecifically dangerous activitiesº however, the victim will not be able to
avoid reduction even though he or she acted with the care required by the
circumstances.
(3) The neglect in self-protection (or the specifically dangerous activity) 16
must have been a cause of the damage suffered by the victim, or failed to
mitigate it. In the framework of contributory conduct or activity the Princi-
ples referred to both Sections of Chapter 3 (Causation, Section 1. Conditio
sine qua non and qualifications, and Section 2. Scope of liability), also
apply mutatis mutandis.
Occasionally other factors may be relevant for either establishing contribu- 17
tory conduct or activity, reducing its impact or even excluding it. Examples
of the first case are, for instance, the provocation of the victim which,
according to the circumstances, may qualify as contributory conduct giving
rise to a reduction in compensation. Or the consent to engage in dangerous
sports activities, which may also amount to contributory negligence when
the damage results from the fact that the average risks involved in the
activity have been exceeded without surpassing, however, the limits of
what is deemed reasonably acceptable. The impact of contributory conduct
or activity may be reduced or even excluded in cases in which the tort-
feasor may be specifically required to prevent the victim from damaging
MartõÂn-Casals 133
Art. 8:101 Title IV. Defences
himself or herself, even if the victim acts intentionally (see infra no. 23). In
other cases the protective purpose of the duty violated by the defendant may
indicate the contrary.
Illustration 2. A train, breaching the regulations, passes through a zone
where traffic is not permitted. When the train passes through this zone, V
throws himself on railway tracks and suffers fatal injuries. His dependants
claim full compensation from the railway company (D). D raises the defence
of contributory conduct, arguing that the duty infringed had no bearing on
the safety of persons and that the accident was solely attributable to V. The
judge finds for D and exonerates it from liability.
c) Consequences
18 The contributory conduct or activity of the victim regularly leads to a
reduction of the sum of damages that would be otherwise awarded if the
victim had not contributed to the damage or to its aggravation. Therefore
the normal apportionment procedure is, first, to fix the victim's full damage
and then to reduce it in proportion to the victim's contribution. This
regularly leads to a certain percentage by which the original amount of
damages is reduced, but the apportionment of damages between the victim
and the tortfeasor may also occasionally result in full compensation or in
the exclusion of the compensation. Therefore it is commonly pointed out
that the reduction can take place on a scale from 0 to 100%. In practice,
however, the reduction is in most cases within the range of 25±75% and,
less frequently, within the range of 10±90%. Smaller fractions than steps
of 5 or 10% are very rarely used.
19 The considerations underlying the establishment of the exact percentage of
apportionment are a sort of amalgam of causation ± in the sense of Chapter
3, Section 2 of these Principles ± and attribution ± in the sense of Art. 1:101
and Chapters 4 and 5 of these Principles, both on the side of the victim and
on the side of the tortfeasor, which lead to a very flexible system of
assessing damages which regularly escapes any possible standardization.
20 However, when situations are recurring ± e.g. the failure of a motor biker
to wear a crash helmet ± courts tend to establish standardized percentages
of contributory conduct or activity.
d) The Role of the Intent of the Tortfeasor and of the Victim
21 The intent both of the tortfeasor and of the victim play an important role in
the assessment of contributory conduct or activity and, in particular, when
it is present on one side but not on the other.
22 When the tortfeasor has acted with intent and the victim has not contri-
buted intentionally to his or her damage, it is generally considered that it
would be unfair and inconsistent with public policy to allow the tortfeasor
to make use of this defence. Accordingly, the tortfeasor is considered liable
in full regardless of the contributory conduct or activity of the victim. A
clear exception to this general principle ± irrelevance of contributory negli-
134 MartõÂn-Casals
Chapter 8. Contributory Conduct or Activity Art. 8:101
gence of the victim when the tortfeasor acts with intent ± is the case of
provocation by the victim. In spite of the fact that provocation as such is
not a defence and does not cause the conduct of the tortfeasor to lose its
tortious character, it has a direct bearing on his or her conduct; in this
sense, it contributes to the damage and, therefore, it can be taken into
account to reduce compensation.
Illustration 3. P enters a pub where D is celebrating the success of his last
novel. P starts laughing at D and disparaging his literary abilities. D is
unable to bear the situation and, since P does not want to leave the premises,
punches him in the mouth and breaks two of his teeth. P claims full compen-
sation from D, D raises the defence of contributory conduct, and the judge
reduces damages accordingly.
When the one who acts with intent is not the tortfeasor but the victim, it is 23
generally considered, on whatever grounds ± good faith, abuse of rights,
breaking of the causal link, etc. ± that it excludes the liability of the negli-
gent tortfeasor. However, a clear exception to this rule can be commonly
found when the tortfeasor may be specifically required to prevent the vic-
tim from damaging himself or herself. This is the case, for instance, when
a person under arrest in a police station or a person admitted to a hospital
hurts himself or herself or commits suicide.
Illustration 4
Example 1. V is arrested by the police (D) and locked in a cell. During the
night V kills himself. His dependants (P) claim full compensation from D
for V's death. D raises the defence of contributory conduct, arguing that V
acted with intent. Although the judge considers that D had the duty to
prevent V from harming himself, damages may be reduced according to the
conduct of V.
Example 2. V suffers a serious nervous breakdown and is admitted to hospi-
tal D. During the night V jumps out of the window and kills herself. Her
dependants (P) claim full compensation from D for V's death. D raises the
defence of contributory conduct, arguing that V acted with intent. Although
the judge considers that D had the duty to prevent V from harming herself,
damages may be reduced according to the conduct of V.
The police have to ensure the safety of the person under arrest and, like- 24
wise, health care institutions that of the patients admitted to hospital, so
that they are prevented from hurting themselves or committing suicide.
Accordingly, the intentional conduct of the person in this situation does
not exclude the liability of the police or of the hospital but it can reduce
compensation, depending on circumstances such as the scope of the duty
of care of the persons or institutions who have to ensure safety of the victim
or the protective purpose of the rule that imposes this duty. If V has to be
considered mentally disabled within the meaning of Art. 4:102 (2),
however, his own conduct might already be disregarded for that very
reason, as this would be a ªmatter relevant to establishº his liability.
MartõÂn-Casals 135
Art. 8:101 Title IV. Defences
MartõÂn-Casals 137
Title V. Multiple Tortfeasors
Introduction
Overview
1 This Title deals with the situation where it is contended that more than
one person is responsible in tort for an injury suffered by the victim. It
has two aspects: (a) the position between the victim and the tortfeasors
(the external aspect) and (b) that between the tortfeasors inter se, in par-
ticular contribution (recourse) rights (the internal aspect). The most
obvious situation in practice is that where the independent acts of two
persons combine in their effect to produce a single harm to the victim
(Art. 9:101 para. 1 lit. b). However, the same principles apply in two
cases even where one person responsible has not made any ªphysicalº
contribution to the event but has participated or instigated in wrong-
doing (Art. 9:101 para. 1 lit. a) or is liable for the act of his auxiliary
(Art. 9:101 para. 1 lit. c). The basic rule adopted by this Title is that
each person to whom the damage is attributable is liable to the victim
for the whole of the damage suffered by him (Art. 9:101) ± as against
the victim liability is not apportioned according to the number of tortfea-
sors or their degree if fault; but as between themselves the tortfeasors
may claim to have the liability apportioned according to their relative
responsibility (Art. 9:102), so that, for example, one who has paid more
than his share has the right of recourse against the other for what the
other should have paid. The first point is especially important where
one tortfeasor is insolvent.
Terminology
a) Solidary
2 This word is used to describe the situation where each of a number of
tortfeasors is individually liable for the whole of the damage suffered by
the victim. It is difficult to find a suitable form of words here. It is essen-
tially the same as the common law expression ªjoint and several liabilityº
but we consider that to be very unclear. We consider ªsolidaryº to be
preferable even though it is used as a term of art in some systems and not
in a wholly consistent manner. For our purposes its meaning is exclusively
as set out in Art. 9:101.
138 Rogers
Title V. Multiple Tortfeasors Introduction
b) Several
This is the ªoppositeº of solidary. Liability is several where one can attri- 3
bute only part of the overall damage to an individual tortfeasor and then
he is liable only for that part. 1
c) Contribution
This is the right which one tortfeasor who is under a solidary liability has to 4
ªpass onº to the others the amount in excess of his share of responsibility
which he has paid or may be required to pay. Although it is a term of art
in the common law systems, it seemed to us to be preferable to ªrecourseº
for two reasons. First, ªrecourseº is used in other contexts where the
parties are not multiple tortfeasors. For example, one may speak of a
subrogated loss insurer having ªrecourseº against the tortfeasor who has
caused damage to the property insured. Secondly, ªrecourseº perhaps
implies that the person seeking it has made a payment which he seeks to
recover. However, in practice the apportionment of liability will often
take place as a side issue attached to the main suit brought by the victim.
d) Indemnification
In some cases the just result may be that although both tortfeasors are 5
liable to the victim, between themselves one of them should bear the whole
loss. In this context the English expression is ªindemnityº but some
members thought that to other readers this might have too much of an
insurance flavour.
e) Auxiliary
This has the same meaning as in Chapter 6 2 and excludes independent 6
contractors.
1
The expression ªproportionate liabilityº is sometimes used.
2
Art. 6:102 no. 6.
3
W.V.H. Rogers (ed.), Unification of Tort Law: Multiple Tortfeasors (2004, hereafter cited as
PETL Multiple Tortfeasors). Country reports were received from Austria (B.A. Koch/P.
Schwarzenegger), Belgium (H. Cousy/D. Droshout), the Czech Republic (L. Tichy), England
(H. Rogers), Gerrmany (U. Magnus), Israel (I. Gilead), Italy (F. Busnelli/G. ComandeÂ/E.
Bargelli), the Netherlands (W. van Boom), Poland (M. Nesterowicz/E. Baginska), Portugal
(J. Sinde Monteiro/A. Pereira), South Africa (J. Neethling), Spain (M. Martin-Casals/J.
SoleÂ), Sweden (B. Dufwa), Switzerland (C. Chappuis/G. Petitpierre/B. Winiger) and the Uni-
ted States of America (M. Green).
4
W.V.H. Rogers, Comparative Report, PETL Multiple Tortfeasors, 271.
Rogers 139
Introduction Title V. Multiple Tortfeasors
majority of the Group readily accepted that the broad structure of solidary
liability which prevails in the systems generally should be continued.
Background Issues
9 At first sight the question of solidary versus several liability does not look
like a central issue in tort law. At present the law in European countries
says that where the acts of D1 and D2 combine to inflict an injury on P
then he can sue either (or of course both) of them for the full amount. If
the law were otherwise and he could only sue each of them for, say, half
his loss (several liability) then he would potentially be put to more trouble
in ªcollectingº all the tortfeasors, whether together or in successive suits;
but if all were solvent and accessible he would still recover his total loss.
If, however, D2 is insolvent or inaccessible then P's position is much worse,
for under a system of several liability the 50 per cent that he recovers from
D1 will be the limit of his recovery, whereas under a system of solidary
liability D1 must pay the full loss and it will be he who bears the risk of
the fact that D2 cannot be sued or is not worth suing. The distinction has
been brought into sharp focus in modern times in some systems by the
development of complex litigation arising out of matters like pollution or
disease where a number of actors may be involved in the causation of the
eventual damage over a period of years. In England it has a particularly
sharp focus because tort law plays a greater role in the compensation of
work injuries than in many European countries. Suppose the victim is
employed over a period of years successively by D1, D2, D3 and D4 in
handling asbestos and criticism can be made of all of them in their obser-
vance of the safety regulations. At the end the victim develops asbestosis
and it may be a reasonable inference that all the employments made a
contribution to this. Leaving aside the complexities which may arise
because of the differing bases upon which liability insurance policies may
be written, it may well be that D4 is the only company still in existence
when the disease comes to light and solidary liability would mean that D4
pays for all the victim's loss, for his undoubted legal right of contribution
140 Rogers
Title V. Multiple Tortfeasors Introduction
against the others will be as worthless as the victim's primary claim against
them; a system of several liability, on the other hand, would require D4 to
pay only his ªshareº, though exactly how that would be worked out might
be a complex matter.
Until recently, solidary liability was regarded as self-evidently correct but it 10
has now come to be questioned. Indeed, in the United States the great
majority of the states have departed from it in the last 20 years, though
rather than going for pure several (or ªproportionateº) liability many of
them have adopted various complex compromise positions. Indeed, the
current Third Restatement of Torts has had to create no less than five
variant ªtrackº systems to accommodate diversity in a legal system which
only a few years ago was almost uniform. 5
5
See M Green, United States, PETL Multiple Tortfeasors, no. 16.
Rogers 141
Art. 9:101±9:102 Title V. Multiple Tortfeasors
damage under this Article; but where it is not possible to enforce a judg-
ment for contribution against one person liable his share is to be reallo-
cated among the other persons liable in proportion to their responsibility.
Comments
1. Overview
As has been explained above, Art. 9:101 deals with the ªexternalº aspect, 1
the position as between the tortfeasors and the victim, and Art. 9:102 with
the position as between the tortfeasors. Both provisions preserve the broad
picture of solidary liability as it now prevails in European systems gener-
ally.
feasors ± the ªinternalº aspect. More important, however, is the fact that
solidary liability is so deeply embedded in the European systems that to
abandon it would amount to a profound shift in the balance of the law.
Nor is it merely a question of whether the victim or the tortfeasors as a
group bear the risk of the insolvency of a member of the group. Even
where everyone is solvent, we believe it is possible seriously to underesti-
mate the practical difficulties of the victim if he had the onus of pursuing
all possible tortfeasors in order to be assured of full recompense for his
loss.
4 We must stress, however, that in proposing the retention of the basic rule
of solidary liability it is assumed that the case is one where indivisible
damage has been caused by the defendants under Chapter 3 (both in the
factual sense under Section 1 and in the sense that the damage may be
attributed to them under Section 2). For example, this Article will not
apply to the situation which we have described under Art. 3:103 (1) as
ªalternative causationº, for then the activity of each defendant is regarded
as a cause of the damage only to the extent corresponding to the likelihood
that it may have caused it ± that is to say, a form of proportionate liability. 1
When damage is indivisible is an issue on which we do not think it is
possible to legislate in detail and must be determined by the courts on a
case to case basis. For example, where a passenger in car D1 is killed in a
collision between it and car D2 it is likely that the damage will be indivisi-
ble because it will be impossible to say that one aspect of it was caused by
D1 and another by D2. However, one aspect of the victim's injury may be
attributable to two tortfeasors and lead to solidary liability, whereas
another aspect of it may be attributable only to one of them. So if D1
inflicts some injury on the victim and because of the consequences of this
the victim suffers some additional injury at the hands of D2, it is possible
(assuming the conditions of Art. 3:201 are fulfilled) that D1 as well as D2
might be liable for the second injury, but only D1 would be liable for the
first. A simple example of where the damage suffered by the victim is
divisible on a causation basis in this way is where D1's vehicle knocks P
off his bicycle on to the road, damages the bicycle but causes no personal
injury to P and then D2's vehicle strikes P while he is recovering himself. 2
The damage to the bicycle is caused only by D1 and he alone is responsible
for that. It is conceivable, however, that both D1 and D2 might be regarded
as being responsible for the personal injury, even though it is directly
inflicted only by D2; if so, as far as P is concerned, the personal injury
would be an indivisible harm falling within Art. 9:101, though there could
be an ultimate apportionment of responsibility between D1 and D2 under
Art. 9:102. Of course there may be cases (for example, successive personal
1
For example, where V contracts mesothelioma (which may be caused by the ingestion of a
single asbestos fibre) after exposure to asbestos in successive periods by the activities of A,
B and C.
2
For this purpose it makes no difference whether the liability is strict or based on fault.
144 Rogers
Chapter 9. Multiple Tortfeasors Art. 9:101±9:102
feasor, though that will no doubt weigh heavily in the scales and there will
be cases in which such a claim is denied on the separate ground of ªpublic
policyº (a matter on which we doubt if any code can legislate in detail).
But ªintentional tortsº vary a good deal in their turpitude (apart from the
difficulty of defining ªintentionº) and it would probably be unwise to put
the court in a strait-jacket.
c) Other Matters
8 The remaining provisions of Art. 9:102 deal with subsidiary issues. Para. 3
ªidentifiesº the employer/principal with the responsibility of his auxiliary.
This seems to follow from the proposition that he is liable to the victim
for the act of the auxiliary. Para. 4 provides the basic rule that among the
tortfeasors the liability is proportional, so that if there are three tortfeasors,
D1, D2 and D3, each equally responsible on the basis of one third and D3
is insolvent, D1, who has paid the full award, cannot say that D2 is liable
to him for the whole of D3's share. However, this is substantially modified
by the provision for reallocation. In such a case, the responsibility of D1
and D2 being equal, D1 can call upon D2 for half of the contribution which
D3 should have made.
9 Our inquiry into local laws considered a number of other aspects of
contribution, for example, successive claims, overlapping liabilities in tort,
contract and unjust enrichment, the effect of settlement by or judgment
suffered by one tortfeasor in a suit by the victim and time limits on claims.
However, we are satisfied that these issues are intimately connected with
procedure and with matters which go far beyond tort law and cannot be
dealt with in a statement of general principle.
Illustrations
10 P is a passenger in a car driven by D1. The car collides with another driven
by D2 and P suffers a broken leg. The conditions for liability for D1 and
D2 are met (whether under a statute imposing strict liability or on the basis
of fault).
D1 and D2 are each liable in full for P's loss under Art. 9:101 (1)(b)
because the broken leg and its consequences are attributable to both of
them. The court may apportion liability as between D1 and D2 under Art.
9:102. If P sues D1 alone procedural rules should provide a mechanism
for D2 to be brought into the suit so that the issue of apportionment may
be decided without further proceedings. If both D1 and D2 are at fault or
are not at fault but incur a strict liability the apportionment is likely to be
equal; but the fact that D1 is at fault and D2 is not does not compel the
court to shift the whole burden to D1.
11 A group of ten protesters resolve to destroy P's genetically modified crop.
Nine of them go into the field to cut down the plants and one of them, D1,
remains outside to watch for the police. While the other nine are in the field
one of them knocks down and injures P.
146 Rogers
Chapter 9. Multiple Tortfeasors Art. 9:101±9:102
D1 is liable along with the others for the damage to the crop under Art.
9:101 (1)(a). Whether D1 and the other eight in the field are liable for the
act of the one who knocked down P depends on the scope of their agree-
ment for concerted action. If they agreed to meet resistance with force
they will be.
P is injured by the combined acts of D1 and D2 and the conditions for liabi- 12
lity of both for the whole injury are met. Since D1 cannot be found, P sues
D2 alone and gets judgment for his whole loss However, D2 only has
sufficient assets to satisfy 80 per cent of the judgment. D1 then appears.
Assuming the local law allows successive actions, P may bring further
proceedings against D1 but may only recover 20 per cent of his loss.
If the responsibility of D1 and D2 was equal, D2 would have a claim for
contribution against D1, prima facie for 30 per cent of the overall loss, since
he has paid 80 and ªshouldº have paid 50.
P suffers a broken neck in a collision between the vehicles of D1 and D2. 13
The conditions for liability of both are met. P is taken to a hospital, where
the proper tests for allergic reactions to a drug are not done and as a result
P becomes blind in one eye. The broken neck and the blindness are separate
injuries. D1 and D2 are each liable in full for the broken neck. The hospital
is not liable for the broken neck since it did not cause it.
D1 and D2 have caused the blindness for the purposes of Section 1 of
Chapter 3; however, whether it is attributable to them will turn on Section
2 of Chapter 3 (it is not a decisive objection that the act of the hospital
took place later than that of D1 and D2). If it is, then D1, D2 and the
hospital are each liable for the blindness, subject to the right to seek
contribution. If it is not, then the hospital alone is liable for the blindness.
Company D1 is engaged in an activity (the storage of dangerous material) 14
which potentially attracts liability without fault under Chapter 5. It engages
Company D2 to design and operate safety systems but an employee of
Company D2 fails to carry out his duty properly (even though D2 could
not have done any more to supervise him) and there is an escape of the
substance which pollutes the land of P.
P successfully sues both D1 and D2 (D2 being liable for the employee
under Art. 6:102). For the purposes of contribution between D1 and D2,
D2 is treated under Art. 9:102 para. 3 as having committed the fault of
the employee. In fact, since D2 was engaged to prevent the risk of escape
it is likely that, under the contract between D1 and D2, D1 will be entitled
to be indemnified in full by D2 (Art. 9:102 para. 1).
P suffers damage for which D1, D2 and D3 are all responsible in full. P 15
successfully sues D1 and recovers his full loss. D1 then brings contribution
proceedings against D2 and D3 and the court concludes that the relative
shares of responsibility were 50 per cent to D1 and 25 per cent each to D2
and D3. D3 is insolvent.
Rogers 147
Art. 9:101±9:102 Title V. Multiple Tortfeasors
Since D2's liability to make contribution is several, the starting point is that
D2 is liable only to pay D1 25 per cent. However, under Art 9:102 (4) D3's
share is reallocated between D1 and D2 in proportion to their responsibil-
ity. Thus D2 must make an additional payment of 8.3 per cent to D1, being
one third of D3's share. Hence in the final accounting D1 bears two thirds
of the loss and D2 bears one third. 3
3
The result would of course be the same if the contribution issue was decided in the main suit.
148 Rogers
Title VI. Remedies
Chapter 10. Damages
Introduction
Title VI. of the Principles deals with the remedies of a party who has been 1
injured through a tort. The most common remedy is a claim for damages
in terms of money (Art. 10:101) but also restoration in kind may be avail-
able where appropriate (Art. 10:104).
Chapter 10 addresses primarily the remedy of damages, which is intended 2
to provide the injured party with an equivalent in money for his or her
loss. The Chapter comprises three sections, the first one dealing with
general questions concerning damages for all types of losses. But it also
includes the remedy of restoration in kind. The two other sections are
specifically concerned with damages for pecuniary loss on the one hand
and non-pecuniary loss on the other.
the wrong complained of had not been committed. Damages also serve the
aim of preventing harm.
Comments
1. Introduction
1 The remedy of damages is the most important tool to compensate an
injured party's loss of what kind so ever. This Article defines the term
damages; it also states the main aims of this part of the law and specifies
in particular what the aim of compensation is intended to mean. In addition
it fixes the yardstick according to which the amount of damages is generally
assessed.
2. Definitions
a) Damages
2 The term ªdamagesº is understood to mean a money payment only. Other
forms of compensation like restoration in kind or similar remedies are not
covered by the term. The term also implies that a sum is to be awarded
which in terms of money equals the loss the injured party has suffered and
which is intended to compensate that loss.
b) Aim of Preventing Harm
3 This notion needs hardly explanation. It means that by the prospect of the
imposition of damages a potential tortfeasor is forced or at least encour-
aged to avoid doing harm to others.
3. Reasons
4 The term ªdamagesº as used in the Principles is familiar to common law
systems but less so to civil law systems. It appears therefore useful to define
the term. It also appears necessary to fix the aims which damages are
intended to serve since there is no full unanimity in this respect among
the different legal systems. By requesting that money, so far as money
can, should restore the victim to his or her non-violated position, the
Article states implicitly that compensation is the primary aim of damages.
On this primary aim all European legal systems agree. 1 Also the aim of
prevention of harm is accepted while a punitive purpose of the law of
damages is implicitly refused by not mentioning it. The borderline between
the aim of prevention and the aim of punishment may be sometimes diffi-
cult to draw. But it is clear that the Principles do not allow punitive
damages which are apparently out of proportion to the actual loss of the
1
See the references in U. Magnus, Comparative Report on the Law of Damages, in: U.
Magnus (ed.), Unification of Tort Law: Damages (2001, hereafter cited as PETL Damages)
no. 1 fn. 1.
150 Magnus
Chapter 10. Damages Art. 10:101
victim and have only the goal to punish the wrongdoer by means of civil
damages 2.
2
See also Art. 24 of the Proposal for a Regulation of the European Parliament and the Council
on the Law Applicable to Non-Contractual Obligations (ªRome IIº), COM(2003) 427 final,
22.7.2003: ªnon-compensatory damages, such as exemplary or punitive damages, . . . contrary
to Community public policyº.
3
See also Art. 10:103 and the comments on Causation (Chapter 3).
4
Art. 9:502 sent. 1 PECL: ªThe general measure of damages is such sum as will put the
aggrieved party as nearly as possible into the position in which it would have been if the con-
tract had been duly performed.º
Magnus 151
Art. 10:101 Title VI. Remedies
8 Besides the aim of compensation the Article allows recognition of the aim
of prevention though the provision does not expressly state how this goal
is to be achieved. It is, however, clear that, subject to Art. 2:104 (which
allows the recovery of reasonable expenditure to prevent threatened
damage) no damages award can be based on preventive purposes alone.
But for instance, in assessing damages the prevention argument can be
taken into account in that it should not be cheaper to cause damage than
to avoid it.
9 The Principles are silent on the possibility of gain-stripping as a means of
compensation because this is mainly the province of the law of unjust
enrichment or restitution. Nonetheless, in some systems this possibility
plays a ± limited ± role in certain areas of tort law, too, for instance when
intellectual property rights are infringed. In these cases and within the gen-
eral limits which the aims of compensation and prevention set also the gain
the tortfeasor made can be taken into account when assessing the amount
of damages.
5
Cf. the following country reports in PETL Damages: W.V.H. Rogers, England, no. 9; S.
Galand-Carval, France, no. 12 et seq.; K. Kerameus, Greece, no. 2; F. Busnelli/G. ComandeÂ,
Italy, no.7; M.H. Wissink/W. van Boom, The Netherlands, no. 19; see also J. Neethling, South
Africa, no. 5.
6
H. Koziol, Austria, PETL Damages, no. 9; H. Cousy/A. Vanderspikken, Belgium, PETL
Damages, no.13 et seq.; U. Magnus, Germany, PETL Damages, no. 9.
7
H. Koziol, Austria, PETL Damages, no. 1; H. Cousy/A. Vanderspikken, Belgium, PETL
Damages, no. 1; W.V.H. Rogers, England, PETL Damages, no. 1; S. Galand-Carval, France,
PETL Damages, no. 1; K. Kerameus, Greece, PETL Damages, no. 1; F. Busnelli/G.
ComandeÂ, Italy, PETL Damages, no. 1; M.H. Wissink/W. van Boom, The Netherlands,
PETL Damages, no. 7; see also J. Neethling, South Africa, PETL Damages, no. 1 et seq.; G.
Schwartz, USA, PETL Damages, no. 1.
152 Magnus
Chapter 10. Damages Art. 10:102
ciple of full restitutio ad integrum at least as the starting point8 though there
are exceptions. 9 In particular, international conventions and some national
statutes ± concerning strict liability ± provide for caps on the amount of
compensation. 10 The views differ, however, whether restitution should be
achieved primarily by restoration in kind or by way of money payment.
The majority of legal systems attributes an accompanying preventive aim 13
and function to the law of damages or accepts prevention at least as a desir-
able side effect 11 while for instance Greek, 12 Italian 13 or Dutch law 14 are
reluctant to recognise such a separate function.
Besides compensation as primary and prevention as further goal several 14
legal systems recognise also other aims and functions of the law of
damages. The most prominent example is a punitive function which is
partly accepted in English, 15 French 16 and especially U.S. law. 17 Few legal
systems acknowledge also the idea that nominal damages must be awarded
when a right has been infringed though no actual damage has been
caused. 18 Another concept which can be eventually found are `restitution-
ary' damages according to which the gain the tortfeasor made influences
the amount of damages. 19
Comments
1. Introduction
As provided by Art. 10:101 damages awards have to be in terms of money. 1
Art. 10:102 addresses the concrete form of a damages award which may
8
See H. Cousy/A. Vanderspikken, Belgium, PETL Damages, no. 11 et seq.; W.V.H. Rogers,
England, PETL Damages, no. 1; S. Galand-Carval, France, PETL Damages, no. 7; K. Kera-
meus, Greece, PETL Damages, no. 1; F. Busnelli/G. ComandeÂ, Italy, PETL Damages, no. 5;
M.H. Wissink/W. van Boom, The Netherlands, PETL Damages, no. 15; see also J. Neethling,
South Africa, PETL Damages, no. 5; G. Schwartz, USA, PETL Damages, no. 1 et seq.
9
An exception can be found in Austria and Switzerland where the extent of compensation
depends on the degree of fault: cf. H. Koziol, Austria, PETL Damages, no. 5.
10
For further details see U. Magnus, Comparative Report, PETL Damages, no. 21 et seq.
11
Compare for details U. Magnus, Comparative Report, PETL Damages, no. 8 et seq.
12
See K. Kerameus, Greece, PETL Damages, no. 1 et seq.
13
F. Busnelli/G. ComandeÂ, Italy, PETL Damages, no. 2.
14
M.H. Wissink/W. van Boom, The Netherlands, PETL Damages, no. 9.
15
W.V.H. Rogers, England, PETL Damages, no. 3.
16
S. Galand-Carval, France, PETL Damages, no. 3 et seq.
17
See G. Schwartz, USA, PETL Damages, no. 3.
18
See W.V.H. Rogers, England, PETL Damages, no. 11; S. Galand-Carval, France, PETL
Damages, no. 15.
19
See thereto U. Magnus, Comparative Report, PETL Damages, no. 16.
Magnus 153
Art. 10:102 Title VI. Remedies
take either the form of a lump sum award or a periodical payment award.
The choice between both depends on the fact which form is more appropri-
ate, in particular with respect to the interests of the victim.
2. Definition
Lump sum
2 A lump sum is a single sum of money whose payment is intended to cover
the injured party's whole present and future loss.
3. Reasons
3 There are considerable differences between the European legal systems
whether and when an injured party is entitled to claim a rent from the tort-
feasor. It appears therefore useful that the Principles address this question
and provide a clear answer.
20
This seems also to be the general rule in many countries: see for instance W.V.H. Rogers,
England, PETL Damages, no. 53; U. Magnus, Germany, PETL Damages, no. 49; F. Bus-
nelli/G. ComandeÂ, Italy, PETL Damages, no. 61; J. Neethling, South Africa, PETL Damages,
no. 19, 28; G. Schwartz, USA, PETL Damages, no. 18.
21
See J. Neethling, South Africa, PETL Damages, no. 19, 28.
154 Magnus
Chapter 10. Damages Art. 10:102
Illustrations
D has destroyed P's house. 9
Damages for the loss will be awarded as a lump sum.
22
See thereto in particular H. Koziol, Austria, PETL Damages, no. 63.
23
See, e.g., § 843 German BGB.
24
See the references in fn. 20.
25
See U. Magnus, Comparative Report, PETL Damages, no. 89 with references.
26
Compare H. Koziol, Austria, PETL Damages, no. 63; U. Magnus, Germany, PETL Damages,
no. 49; K. Kerameus, Greece, PETL Damages, no. 20; F. Busnelli/G. ComandeÂ, Italy, PETL
Damages, no. 61.
27
S. Galand-Carval, France, PETL Damages, no. 57.
28
M.H. Wissink/W. van Boom, The Netherlands, PETL Damages, no. 99 et seq.
29
W.V.H. Rogers, England, PETL Damages, no. 53. At the time of our Comparative Report on
Damages periodical payments were only possible in England by agreement between the par-
ties. However, when the Courts Act 2003 comes into force there will be a general discretion
to make a periodical payment award in personal injury cases.
Magnus 155
Art. 10:103 Title VI. Remedies
Comments
1. Introduction
1 The law of damages aims at full compensation of the injured party. This
implies that the actual loss has to be made good but also that compensation
must not cause an enrichment of the injured party. Therefore, Art. 10:103
states the principle that the determination of the amount of damages has
to take into account, and generally to deduct, benefits which the injured
party gained through the damaging event. Only if this is irreconcilable
with the purpose of the benefit does the injured party's gain not reduce
the amount of damages.
2. Definitions
a) Benefits
2 The term ªbenefitsº includes every kind of property, claim or other
increase of fortune which the injured party received because of the dama-
ging event.
b) Damaging Event
3 The term ªdamaging eventº comprises every damage which gives rise to a
claim for damages and which at the same time has caused the injured par-
ty's gain.
3. Reasons
4 The main reason why advantages which the injured party received through
a wrong should in principle be set off against the amount of damages is sim-
ply the argument that the respective compensation should not enrich this
party. 30 But also the purpose of any collateral benefit has to be considered.
The general principle of compensatio lucri cum damno must not lead to an
unjustified relief of the tortfeasor from liability. 31
30
See in particular F. Busnelli/G. ComandeÂ, Italy, PETL Damages, no. 59; J. Neethling, South
Africa, PETL Damages, no. 26.
31
See U. Magnus, Comparative Report, PETL Damages, no. 84.
156 Magnus
Chapter 10. Damages Art. 10:103
32
See H. Koziol, Austria, PETL Damages, no. 61; H. Cousy/A. Vanderspikken, Belgium, PETL
Damages, no. 56, 58; W.V.H. Rogers, England, PETL Damages, no 49; U. Magnus, Germany,
PETL Damages, no. 47; K. Kerameus, Greece, PETL Damages, no. 18; F. Busnelli/G.
ComandeÂ, Italy, PETL Damages, no. 59; M.H. Wissink/W. van Boom, The Netherlands,
PETL Damages, no. 93.
33
See H. Koziol, Austria, PETL Damages, no. 61; U. Magnus, Germany, PETL Damages,
no. 47; K. Kerameus, Greece, PETL Damages, no. 18; F. Busnelli/G. ComandeÂ, Italy, PETL
Damages, no. 59; M.H. Wissink/W. van Boom, The Netherlands, PETL Damages, no. 93;
also J. Neethling, South Africa, PETL Damages, no. 26.
34
See for instance H. Cousy/A. Vanderspikken, Belgium, PETL Damages, no. 56, 58; W.V.H.
Rogers, England, PETL Damages, no 49; M.H. Wissink/W. van Boom, The Netherlands,
PETL Damages, no. 93.
Magnus 157
Art. 10:103 Title VI. Remedies
Illustrations
12 V is killed in an accident for which D is fully liable. V leaves behind his
widow P and considerable assets.
35
See U. Magnus, Comparative Report, PETL Damages, no. 84 et seq.
36
In favour of deduction see H. Koziol, Austria, PETL Damages, no. 105 et seq.; H. Cousy/A.
Vanderspikken, Belgium, PETL Damages, no. 142; U. Magnus, Germany, PETL Damages,
no. 83; F. Busnelli/G. ComandeÂ, Italy, PETL Damages, no. 22 (in Italy the courts order some-
times deductions in these cases); M.H. Wissink/W. van Boom, The Netherlands, PETL
Damages, no. 129 (though disputed). Against deduction see W.V.H. Rogers, England, PETL
Damages, no. 80; S. Galand-Carval, France, PETL Damages, no. 86; K. Kerameus, Greece,
PETL Damages, no. 37; J. Neethling, South Africa, PETL Damages, no. 50; G. Schwartz,
USA, PETL Damages, no. 36.
37
In favour of deduction though with differing qualifications see for H. Koziol, Austria, PETL
Damages, no. 109 et seq.; U. Magnus, Germany, PETL Damages, no. 87 et seq.; M.H. Wis-
sink/W. van Boom, The Netherlands, PETL Damages, no. 134; J. Neethling, South Africa,
PETL Damages, no. 54. Against deduction see H. Cousy/A. Vanderspikken, Belgium, PETL
Damages, 146, 56 et seq.; W.V.H. Rogers, England, PETL Damages, no. 84; S. Galand-
Carval, France, PETL Damages, no. 90; G. Schwartz, USA, PETL Damages, no. 40; probably
also K. Kerameus, Greece, PETL Damages, no. 40; F. Busnelli/G. ComandeÂ, Italy, PETL
Damages, no. 115 et seq.
158 Magnus
Chapter 10. Damages Art. 10:104
Comments
1. Introduction
This Article allows the victim to claim restoration in kind instead of 1
damages. But this possibility is subject to the qualification firstly that
restoration in kind is still possible and secondly that it is not too onerous
for the debtor.
2. Definition
Restoration in kind
ªRestoration in kindº means that the liable person is obliged to restore ± as 2
far as possible ± the original state without the damaging event.
3. Reasons
Though it is the general aim of the law of damages to restore the injured 3
person as far as possible to the position he or she would have been in with-
out the tort (see Art. 10:101) money will in most cases be an adequate form
of compensation that helps the victim to care for restoration according to
his or her own discretion. Moreover the tortfeasor will in most cases be
neither able nor suited nor willing to restore the damage in kind, for
instance, to cure the injured person or to repair the damaged thing. But
there remain certain cases where money cannot grant adequate compensa-
tion, e.g. in case of defamation when a correcting notice may better restore
38
Many systems recognise this possibility of subrogation; see as examples Austrian and German
law (§ 67 Insurance Contract Act [Versicherungsvertragsgesetz]); for the position under Eng-
lish law compare W.V.H. Rogers, Winfield and Jolowicz on Tort (2002), no. 26.29.
Magnus 159
Art. 10:104 Title VI. Remedies
the injured person's reputation than money would do. For these cases the
present Article reserves the right to claim restoration in kind.
Illustrations
9 In a newspaper D has published an article defaming P.
P may claim restoration in kind in the form of a formal correction and/or
excuse in the same newspaper.
39
See W.V.H. Rogers, England, PETL Damages, no. 9; S. Galand-Carval, France, PETL
Damages, no. 12 et seq.; K. Kerameus, Greece, PETL Damages, no. 2; F. Busnelli/G.
ComandeÂ, Italy, PETL Damages, no. 7; M.H. Wissink/W. van Boom, The Netherlands,
PETL Damages, no. 19; also J. Neethling, South Africa, PETL Damages, no. 5.
40
See H. Koziol, Austria, PETL Damages, no. 9; H. Cousy/A. Vanderspikken, Belgium, PETL
Damages, no. 13 et seq.; U. Magnus, Germany, PETL Damages, no. 9.
160 Magnus
Chapter 10. Damages Art. 10:201
Comments
1. Introduction
The distinction between pecuniary and non-pecuniary damage is well- 1
known in all European tort systems. In practice damages for pecuniary
loss play the most important role in this branch of the law. The Principles
also deal first with damages for pecuniary loss (as to damages for non-
pecuniary loss see Art. 10:301). Art. 10:201 firstly defines pecuniary
damage in general terms as a diminution of the victim's patrimony and
secondly gives guidance how damages for this has to be determined,
namely as concretely as possible.
2. Definitions
a) Recoverable Pecuniary Damage
ªRecoverable pecuniary damageº is the key term of this section and the 2
precondition for any following assessment of damages for such loss. A
recoverable pecuniary loss exists when the victim has suffered a loss which
diminishes the victim's patrimony. But even where the victim suffered
bodily injury the cost for medical care etc is pecuniary damage (see also
Art. 10:202). ªRecoverableº means that the victim must be entitled to
recovery of damage in accordance with Art. 2:101 et seq.
b) Diminution
The term ªdiminutionº expresses that the damaging event must result in a 3
reduction of the victim's patrimony.
c) Victim's Patrimony
The wide expression ªvictim's patrimonyº includes not only the actual 4
tangible and intangible property rights which the victim possesses but also
the capacity to earn money (see also Art. 10:202 para. 1) or the right to
use a thing (Art. 10:203 para. 2).
d) Concretely
The adverb ªconcretelyº refers to a certain method or prevailing assess- 5
ment of damages. Here it means that damages have to be determined
with respect to the specific situation of the actual victim. If, for instance, a
repair has been effected at a cost less than the prevailing market rate, the
Magnus 161
Art. 10:201 Title VI. Remedies
actual expenditure and not the normal market cost of such repair is the
concrete measure.
e) Abstractly
6 The adverb ªabstractlyº stands for the contrary to ªconcretelyº.
f) Market Value
7 The term ªmarket valueº designates the most common abstract yardstick
according to which damages can be assessed. It is the price which generally
has to be paid to third persons for a comparable good or service.
3. Reasons
8 The notion of pecuniary damage is a key term in all tort systems. Never-
theless, one does not find statutory provisions which define it though all
European tort systems use the term. The central meaning of the term is
more or less the same in these systems while for a number of borderline
cases like loss of use etc it is disputed whether they have to be regarded
as pecuniary damage. It thus appears useful that the Principles provide a
definition based on the general understanding of the term. The definition
is then further detailed in the following provisions with respect to damage
to the person (Art. 10:202) and damage to things (Art. 10:203).
9 It appears as useful, too, to indicate also the general method how to deter-
mine the damage. The European tort systems regularly require that the
damage has to be identified and then the corresponding amount of
damages has to be fixed. This is rarely seen as a formal two-step operation.
But yet the damage has first to be determined and this can be done in a
more abstract or more concrete way or by a combination of both ways.
The Principles adopt the concrete method of determination of damage as
the starting point but allow in a rather flexible manner also an abstract
determination of damage where appropriate.
1
See also Commentary to Art. 10:101.
Magnus 163
Art. 10:202 Title VI. Remedies
10:202 and 10:203 leave room. The application of Art 10:201 further
depends on the requirement that the conditions of Art. 2:101 et seq., in
particular of Art. 2:102 are met.
Illustration
18 D has persuaded P's top manager to breach his contract by leaving P's enter-
prise and to enter D's enterprise which competes with P's enterprise. D has
acted with the sole intention to throw P out of the market.
P can claim as damages the diminution in value of his enterprise. The
diminution may be taken from a decrease of profits to the extent other
grounds for such decrease can be excluded.
2
See U. Magnus, Comparative Report, in U. Magnus (ed.), Unification of Tort Law: Damages
(2001, hereafter cited as PETL Damages) no. 64 et seq.
3
H. Koziol, Austria, PETL Damages, no. 40.
4
See in detail W.V.H. Rogers, England, PETL Damages, no. 31 et seq.
5
S. Galand-Carval, France, PETL Damages, no. 33, 36.
6
H. Cousy/A. Vanderspikken, Belgium, PETL Damages, no. 32.
7
U. Magnus, Comparative Report, PETL Damages, no. 34.
164 Magnus
Chapter 10. Damages Art. 10:202
(2) In the case of death, persons such as family members whom the
deceased maintained or would have maintained if death had not occurred
are treated as having suffered recoverable damage to the extent of loss of
that support.
Comments
1. Introduction
The Article provides specific rules for the compensation of the economic 1
consequences of personal injury and death for which a tortfeasor is liable.
2. Definitions
a) Personal Injury
As in Art. 10:301 8 ªpersonal injuryº does not include death because this 2
case is dealt with separately in para. 2. Personal injury includes also injury
to mental health, but only if this kind of impairment is diagnosed as a
recognised illness according to the standards of medical science. If a victim
survives for some time before dying as a result of the tort he or she may
acquire a right to damages under para. 1, whether or not there is a claim
of dependants under para. 2.
b) Loss of Income
ªLoss of incomeº covers the regular income a victim did earn prior to the 3
damaging event and which the victim could expect to earn in future had
not the damage occurred. But it covers cases as well where the victim had
no prior income (for instance due to young age) but could expect to earn
an income in the future.
c) Impairment of Earning Capacity
ªImpairment of earning capacityº means the loss or reduction ± due to the 4
tort ± of the personal ability to earn an income independently of the fact
whether at present or in future the earning capacity is or will be actually
exploited. This is meant by the explanation ªeven if unaccompanied by
any loss of incomeº.
d) Family Members
The Principles do not restrict compensation to ªfamily membersº under- 5
stood as relatives who are entitled to maintenance by legal provisions. It
also includes, for example, persons who had been in a similar position and
had been in fact or would be maintained by the deceased.
3. Reasons
Tortious damage through personal injury or death constitutes one of the 6
most common situations where damages have to be awarded and where
8
Cf. infra Art. 10:301 no. 2.
Magnus 165
Art. 10:202 Title VI. Remedies
9
In some systems, there are no subrogation rights for the health care provider because there is
no liability for payment in the recipient. However, in such systems, the same result is in prac-
tice reached by a direct statutory right.
10
This is the unanimous view held by the European tort systems; see U. Magnus, Comparative
Report, PETL Damages, no. 101 with references.
166 Magnus
Chapter 10. Damages Art. 10:202
In a number of cases the victim did not and will not earn an income (house- 12
wives, pensioners, unpaid workers etc). The European legal systems differ
on the solution of whether a victim whose economically unexploited earning
capacity has been impaired by a tort should be entitled to compensation for
the mere loss or reduction of his or her earning capacity. 11 The Principles
have adopted the solution that such impairment entitles to compensation
since it can hardly be denied that the capacity as such has some economic
worth and can also easily be measured by the cost of a substitute.
In case of death of the victim, Art. 10:202 para. 2 entitles a certain circle of 13
persons to claim their maintenance as damages from the tortfeasor. The
entitled persons are, of course, the relatives of the deceased whom he was
in law obliged to maintain. But the Article also includes those persons
(for instance a non-marital partner) who were actually maintained or
would have been maintained in the future if death had not occurred. The
recoverable damage corresponds to the extent to which maintenance is
lost.
Illustrations
P, a 6 year old child, has been injured in an accident for which D is liable. P 16
must stay in hospital some weeks in another town.
P is entitled to compensation of the cost of medical treatment but also to
the costs of regular visits of his parents (e.g. travel expenses) since a
reasonable number of such visits serves a therapeutic purpose.
11
For instance Austrian law accepts such compensation: see H. Koziol, Austria, PETL
Damages, no. 81 et seq. The same is true for the USA: G. Schwartz, USA, PETL Damages,
no. 25. On the contrary England (W.V.H. Rogers, England, PETL Damages, no. 63), France
(S. Galand-Carval, France, PETL Damages, no. 68), Germany (U. Magnus, Germany,
PETL Damages, no. 62), Greece (K. Kerameus, Greece, PETL Damages, no. 27), the Nether-
lands (M.H. Wissink/W. van Boom, The Netherlands, PETL Damages, no. 110) and South
Africa (J. Neethling, South Africa, PETL Damages, no. 35) deny compensation in such cases.
12
See already the references cited supra Art. 10:104 no. 8 and Art. 10:201 no. 17.
13
See in particular W.V.H. Rogers, England, PETL Damages, no. 31 et seq.; S. Galand-Carval,
France, PETL Damages, no. 33, 36.
14
See U. Magnus, Comparative Report, PETL Damages, no. 90 et seq.
15
Compare the references in fn. 45.
Magnus 167
Art. 10:203 Title VI. Remedies
Comments
1. Introduction
1 The Article concerns compensation for damage of any kind to corporeal
things. It states certain specific rules for these cases. In practice cases invol-
ving tortious liability for damage to things constitute ± besides the personal
injury cases ± another very significant group of cases where problems of the
law of damages play an important role. Para. 1 of the Article states the
basic rule that the diminution in value is the general measure of damages
but that higher costs for replacement or repair may be claimed where
such way of recovery is reasonable. Para. 2 of the Article addresses the spe-
cial problem of loss of use.
2. Definitions
a) Thing
2 The term ªthingº means a corporeal movable or immovable object. It does
not include rights and intangible goods (for their compensation see Art.
10:201).
b) Value of the Thing
3 The ªvalue of the thingº is regularly represented by the market price
which would be paid for this or a comparable thing by independent third
persons.
168 Magnus
Chapter 10. Damages Art. 10:203
3. Reasons
Since damage to things is very frequent and is in fact a mass phenomenon 4
in modern society it is necessary ± not the least also for practical reasons ±
to establish fair and clear rules concerning compensation in these cases.
16
See, e.g., H. Koziol, Austria, PETL Damages, no. 40, 95; W.V.H. Rogers, England, PETL
Damages, no. 33 et seq.; M.H. Wissink/W. van Boom, The Netherlands, PETL Damages, no.
70.
Magnus 169
Art. 10:203 Title VI. Remedies
17
See the survey by . Magnus, Comparative Report, PETL Damages, no. 64 et seq.
18
See W.V.H. Rogers, England, PETL Damages, no. 40.
19
S. Galand-Carval, France, PETL Damages, no. 39.
20
U. Magnus, Comparative Report, PETL Damages, no. 35 et seq.
21
K. Kerameus, Greece, PETL Damages, no. 13.
22
H. Cousy/A. Vanderspikken, Belgium, PETL Damages, no. 124 et seq. Also South Africa (J.
Neethling, South Africa, PETL Damages, no. 21) and the USA (G. Schwartz, USA, PETL
Damages, no. 12) follow the approach to compensate the pure loss of use.
23
See H. Koziol, Austria, PETL Damages, no. 46.
24
F. Busnelli/G. ComandeÂ, Italy, PETL Damages, no. 47.
25
Compare the references cited in Art. 10:202 no. 15.
26
Austrian law disallows such kind of fictitious damage (see H. Koziol, Austria, PETL
Damages, no. 50) while the other countries allow it (see the references in U. Magnus, Com-
parative Report, PETL Damages, no. 71 fn. 129 et seq.).
170 Magnus
Chapter 10. Damages Art. 10:301
that the victim must chose the cheaper way of restoration unless there are
reasonable grounds to decide otherwise. 27
Illustrations
P's car has been reparably damaged in an accident for which D is liable. The 10
estimated pre-accident value of the car is ¨ 8,000; its value after the accident
is ¨ 6,000; the cost of repair is ¨ 2,000. A comparable car would cost ¨ 8,000.
P can chose either to buy another car and sell the old one or to have it
repaired. In either case the amount of damages is ¨ 2,000.
If the cost of repair would be ¨ 5,000 instead of ¨ 2,000 then according to
Art. 10:203 para. 1 sent. 2 P could claim only the cost of the cheaper way
of restoration. That means he had to buy another car and could claim
¨ 2,000 from D.
P's house has been damaged due to D's negligence. During repair (6 months) 11
P lives in a caravan.
In addition to the cost of repair of the house P can claim compensation for
the temporarily lost use of the house. The amount of damages can be
oriented at the rental costs of a comparable house.
27
Partly diminution in (market) value is regarded as the upper limit of compensation if costs of
repair exceed this amount: see H. Koziol, Austria, PETL Damages, no. 103; K. Kerameus,
Greece, PETL Damages, no. 36; M.H. Wissink/W. van Boom, The Netherlands, PETL
Damages, no. 126, also J. Neethling, South Africa, PETL Damages, no. 48; G. Schwartz,
USA, PETL Damages, no. 34. Other legal systems do not draw this line strictly: see H.
Cousy/A. Vanderspikken, Belgium, PETL Damages, no. 140; U. Magnus, Germany, PETL
Damages, no. 81 (allowance up to 130 %).
Magnus/Rogers 171
Art. 10:301 Title VI. Remedies
Comments
1. Introduction
1 Non-pecuniary damage is damage which does not involve a diminution of
the victim's patrimony (see Art. 10:201). All European tort systems make
provision for compensation of this type of loss, though the scope and
details of the regimes vary considerably.
2. Definitions
a) Personal Injury
2 ªPersonal injuryº in legal terminology often includes death. However, in
the context of this Article it covers only injury (including injury to mental
health amounting to a recognized illness 1) short of death, since specific
provision is made for fatal cases, any claim for damages for non-pecuniary
loss then lying in favour of relatives of the deceased. Of course, where the
victim survives for some time before dying as a result of the tort there
may be separate claims on his behalf and that of relatives.
b) Grievance
3 For practical purposes this is synonymous with ªdamageº or ªharmº. How-
ever, this Article covers a very wide range of liabilities and there is little in
common between, for example, personal injury cases and those where a
ªdignitaryº wrong is in issue. It seemed better to use a more neutral term.
1
See Art. 10:202 no. 2.
172 Rogers
Chapter 10. Damages Art. 10:301
these damages, but it would be wrong to take that course. These are real
losses, even if it is difficult to assess them and to put a figure on the result.
It is significant that Germany has recently removed the former restriction
on recovery of such losses in cases of strict liability. 2 Nor do we agree that
such damages are arbitrary, though we accept that they are inevitably
ªconventionalº since there is no market against which they may be
measured.
The case for awarding damages for non-pecuniary loss to relatives of direct 5
victims is perhaps less clear. 3 The majority of systems allow such damages
in fatal cases; some (for example France and Belgium) do so in non-fatal
cases. It can be argued that awards here are more open to the charge of
arbitrariness than in personal injury cases: a leg may be regarded as having
something akin to an objective value in terms of the ability to carry on a
normal life, but who can assess the grief suffered by a person at the loss
of a loved one? Furthermore, some bereavement is a universal human
experience which does not call for compensation in the same way as an
injury to one's body. On the other hand, the loss of a bereaved spouse or
parent is perhaps as ªrealº as the unhappiness of an accident victim. We
doubt if this can be solved by a purely philosophical approach, one has to
accept that opinions differ. However, here again we have to take account
of political realities. In those majority jurisdictions where the right to such
damages is established it would be extremely difficult to take it away and
it is perhaps significant that in England, where such damages were
admitted to the law for the first time in 1981, even those who oppose
them on principle accept that they are now firmly embedded in the law. 4
The existence of these damages in fatal cases was never seriously
challenged in our discussions. There was more controversy about such
awards to relatives in non-fatal cases, mainly because of the greater
practical difficulties. 5 However, the majority view was that they should be
accepted.
Outside the area of personal injury and death, damages for non-pecuniary 6
loss may be available in a very diverse range of situations ± for example
for interference with liberty, honour, reputation or privacy. Although it is
not possible to formulate any hard and fast rule, there is a certain reluc-
tance in many systems to award them in cases of damage to property or
for breach of contract. 6 Thus the buyer of goods is not likely to have
2
See J. Fedtke, Germany, in H. Koziol/B. Steininger (eds.), European Tort Law 2001 (2002)
232 et seq.
3
It must be stressed that the award of damages for loss of support from a deceased person is an
entirely separate issue. That is pecuniary loss falling under Art. 10:202 and compensation for
it would be universally seen as a necessity.
4
See Law Commission, Claims for Wrongful Death (1999) § 9.2.
5
See W.V.H. Rogers, Comparative Report, in W.V.H Rogers (ed), Damages for Non-Pecuni-
ary Loss in a Comparative Perspective (2001, hereafter cited as Rogers, Non-Pecuniary Loss)
262 et seq.
6
Except where the purpose of the contract is the provision of enjoyment ± e.g. a holiday.
Rogers 173
Art. 10:301 Title VI. Remedies
7
Or at least tort sanctions would be. Of course, in some jurisdictions the criminal law plays a
significant role in relation to the infringement of some of these interest; but in others it plays
little or none.
174 Rogers
Chapter 10. Damages Art. 10:301
cases mentioned: for example, we think that the wording is wide enough to
allow a court to refuse such damages in a case of trivial personal injury with
no ongoing effects. We are aware that ªpersonality rightsº has no univer-
sally accepted meaning (indeed to a common lawyer it might mean nothing
at all) but in the context we believe it is clear enough to indicate in a
general way the scope of the interests concerned ± autonomy, privacy,
dignity, reputation and so on. It is not possible to be more precise because
in this area above all local laws are diverse: for example, some systems
have an express right of privacy and to control the use of one's name and
image; others do not but frequently reach much the same result indirectly
by manipulation of other legal concepts.
b) Persons Related to Accident Victims
The third sentence of Art 10:301 para. 3 specifically deals with this. We do 8
not attempt to provide a fixed list of persons who may claim nor to define
what is a ªvery serious personal injuryº. Neither seems to fit into a state-
ment of general principle. For example, we are satisfied that a de facto
cohabitation comparable to that of husband and wife would nowadays
clearly attract such damages; it may be the same is true of a comparable
same-sex relationship but it is not for us to make definitive statements on
this type of issue. However, we should say that what we have in mind is a
relationship which bears at least some resemblance to a ªfamilyº one.
c) Circumstances and Conduct
We think it is important that there should be a degree of comparability in 9
the treatment of essentially similar cases 8. However, it is plainly impossible
to draw up a rigid tariff of awards, especially in non-personal injury/death
cases. Typically, the gravity, duration and consequences of the grievance
will be the central issues in determining an appropriate sum so we have
specifically drawn attention to these in para. 2. However, in the last resort
all the circumstances of the case must be taken into account. The question
of how far the decision of a trial court may be challenged is a matter for
procedural law, including the question whether there may be an appeal or
only cassation. Some explanation is necessary of the relevance of the tort-
feasor's fault. 9 A few systems allow punitive or exemplary damages; most
do not and they are excluded by Art 10:101. However, even among the
majority group there is a discernible tendency to take account of the
conduct of the tortfeasor in determining what is just ªsatisfactionº by way
of damages for non-pecuniary loss. While that may often be legitimate, it
arguably involves a ªdriftº towards a punitive element. In our view the
way to take conduct into account but remain faithful to the principle of
compensation is to provide that the conduct of the tortfeasor only comes
into the picture when it contributes to the grievance of the victim. For
example, we take the view that the grievance of a person whose privacy
8
See infra no. 11.
9
The contributory conduct or activity of the victim will be governed by Chapter 8.
Rogers 175
Art. 10:301 Title VI. Remedies
10
Assuming that it is in fact so. If of course he is so thick-skinned that he does not mind, that is
another case, but that is a matter of proof not of law.
11
Although that was in effect the position in Germany until recently.
12
See generally Rogers, Non-Pecuniary Loss (supra fn. 5).
13
Rogers, Non-Pecuniary Loss (supra fn. 5), at 257 et seq.
176 Rogers
Chapter 10. Damages Art. 10:301
14
Art. 2:101 no. 4±5.
15
E. Karner/H. Koziol, Austria; H. Cousy/D. Droshout, Belgium; W.V.H. Rogers, England; S.
Galand-Carval, France; U. Magnus/J. Fedtke, Germany; K.D. Kerameus, Greece; F.D. Bus-
nelli/G. ComandeÂ, Italy; M.H. Wissink/W.H. van Boom, The Netherlands; M. Nesterowicz/
E. Baginska, Poland; M. Martin-Casals/J. Ribot/J. SoleÂ, Spain. There is also information on
Israeli (I. Gilead) and Swiss (P. Tercier) law.
Rogers 177
Art. 10:301 Title VI. Remedies
Illustrations
14 1. P suffers personal injury in an accident and the conditions for liability on
the part of D are met.
P is entitled to damages for loss of income and expenses under Art 10:202
para. 1 but whether or not there is any such loss, P is entitled to damages
for impairment of his health and the suffering undergone.
15 2. As in case 1, but P is rendered permanently comatose by the accident.
The fact that P is not conscious of what has happened to him does not
preclude an award of damages for the injury to his health.
16 3. V is killed in an accident and the conditions of liability on the part of D are
met. V leaves X, with whom he has been cohabiting for ten years, and Y and
Z, the children of that union. V is also survived by A, to whom V was still
married but with whom he had had no contact for some years, and B, V's
business partner and close friend.
In addition to damages for loss of support (if any) under Art 10:202 para. 2,
X, Y and Z may receive damages for their bereavement. A is probably not
entitled to damages under this Article because there is no longer a close
relationship. Nor is B entitled: neither a business relationship nor mere
friendship falls within the scope of the Article. Assuming that there was
no appreciable interval between the accident and the death 16 V's estate is
not entitled to damages for non-pecuniary loss.
17 4. A tabloid newspaper reveals, in circumstances which amount to an action-
able wrong, details of P's medical treatment and this causes great anxiety and
embarrassment to P. This is made worse by the way in which the newspaper
refuses any apology and mounts a defence of ªpublic interestº which it
knows is spurious.
If P's anxiety was so acute that it amounted to a recognized illness it would
be ªpersonal injuryº but even if it did not P is entitled to damages for the
distress he has suffered and the conduct of the newspaper may be taken
into account in the assessment of the damages.
18 5. P's car is damaged by D in circumstances in which the conditions for the
liability of D are met. P has some difficulty getting the car repaired promptly
and suffers so much annoyance that it spoils his holiday.
P is entitled to the cost of repairs and expenses under Art 10:203 but he is
not entitled to damages for his annoyance.
16
If there was an appreciable interval between injury and death we envisage that a claim for
non-pecuniary loss during that period would survive for the benefit of the estate, though that
is really a matter of procedural law.
178 Rogers
Chapter 10. Damages Art. 10:401
Comments
1. Overview
This article allows the court to mitigate liability in exceptional situations 1
where full compensation would be an oppressive burden to the defendant,
such as in the case of a 14 year old that burns down a house and may not
have the resources to indemnify the owner thereof. This issue is addressed
in some national legal systems 1 and it appears that in others, judges tend
to mitigate without doing so expressly. The recognition of a reduction
clause invites judges to act carefully and more openly, taking into account
among other things the financial situation of the parties, the basis of liabi-
lity, the scope of protection of the interest and the magnitude of the
damage. The fact that the victim benefits from insurance coverage is
usually taken into account. This reduction clause does not interfere with
insolvency law and may be disregarded wherever insolvency law leads to
a similar solution.
1
E.g. in Denmark (§ 19 Erstatningsanvarsloven), Finland (Chap. 2 § 1 para. 2 Vahingonkor-
vauslaki), the Netherlands (Art. 6:109 Nieuw Burgerlijk Wetboek), Norway (§ 5-2 Skadeser-
statningsloven), Poland (Art. 440 Kodeks cywilny), Portugal (Art. 494 CoÂdigo civil), Spain
(Art. 1103 CoÂdigo civil), Sweden (Chap. 6 § 2 SkadestdÅndslagen), Switzerland (Art. 43 sec. 1,
Art. 44 Obligationenrecht, see also Art. 52 of the Draft Revision of Swiss Tort Law).
MoreÂteau 179
Art. 10:401 Title VI. Remedies
4. Illustrations
D, the fourteen years old son of an unemployed couple, participates in a ski- 10
camp organised by his college. One morning, he runs downhill, following his
teacher and the other pupils, on a rather steep slope. At a certain moment, on
a hard frozen spot, he loses control over his skis and crashes into multi-
billionaire rock star P who stands on a little hill on the edge of the track.
The collision is violent, P suffers bruises in his face. He will not be able to
perform on a special gala concert that night for which he would have earned
¨ 2 million. 2
In this case, compensating the full loss would truly be an oppressive burden
to D when comparing his own financial situation with that of P, taking into
account the low degree of fault and the direct consequences of his conduct
under the circumstances.
Due to economic growth in the region, air traffic develops and at one point, 11
the local airport happens to exceed the level of noise allowed under existing
regulations, though only momentarily.
Dozens or hundreds of thousands of people may have a claim for this clear,
but singular violation of a norm, which has a protective purpose. If they all
could bring a claim and collect damages compensating the whole loss, the
airport may have to be shut down, which would lead to negative conse-
quences for the airport itself, its staff and the economic situation of the
whole region. Reduced damages may be a reasonable remedy in such a
case.
Likewise, in a major company with thousands of employees, one of them
by slight negligence may cause a trivial loss (yet not personal injury) to a
large number of individuals. The reduction clause may be applied where
the aggregated amount of damages would ruin the company as a whole.
2
This is a modified version of a hypothetical already used supra Art. 4:101 no. 21.
MoreÂteau 181
Translations of the
Principles of European Tort Law
Please note that only the English version of the Principles of European
Tort Law (p. 3 et seq.) has been authorized by the European Group on
Tort Law.
Catalan Translation
by Miquel MartõÂn-Casals and Albert Ruda GonzaÂlez
(4) Aquest article no s'aplica a una a) en defensa d'un intereÁs protegit propi
activitat subjecta especõÂficament a contra un atac antijurõÂdic (legõÂtima
responsabilitat objectiva per qualsevol defensa),
altra disposicio d'aquests Principis o per b) per estat de necessitat,
qualsevol legislacio nacional o c) perqueÁ no va poder obtenir l'ajuda de
convencio internacional. les autoritats a temps (auto-ajuda),
Art. 5:102. Altres supoÁsits de d) amb el consentiment de la võÂctima, o
responsabilitat objectiva si aquesta va assumir el risc de resultar
danyada, o
(1) Les lleis nacionals poden establir e) en virtut d'una autoritzacio legõÂtima,
altres supoÁsits de responsabilitat com ara la lliceÁncia.
objectiva per la praÁctica d'activitats (2) Que la exoneracio sigui total o no
perilloses, malgrat que aquestes depeÁn, d'una part, de la importaÁncia
activitats no siguin anormalment d'aquestes causes de justificacio i, de
perilloses. l'altra, dels pressupoÁsits de la
(2) Llevat que la llei nacional disposi responsabilitat.
altrament, els supoÁsits addicionals de (3) En casos extraordinaris, la
responsabilitat objectiva poden responsabilitat podraÁ ser simplement
establir-se per analogia amb d'altres que reduõÈda.
originin un risc semblant de dany.
Art. 7:102. Causes d'exoneracio en
CapõÂtol 6. Responsabilitat per altres casos de responsabilitat objectiva
Art. 6:101. Responsabilitat pels menors
(1) La responsabilitat objectiva pot ser
o per discapacitats psõÂquics
objecte d'exoneracio total o parcial si el
La persona que te al seu caÁrrec a una dany va ser causat per una imprevisible i
altra que eÂs menor o pateix discapacitat irresistible
psõÂquica respon pel dany causat per a) forcËa de la natura (forcËa major), o
aquesta altra persona llevat que b) conducta d'un tercer.
demostri que ella mateixa va complir (2) Que l'exoneracio de responsabilitat
amb l'estaÁndard de conducta que li era objectiva sigui total o parcial i, en cas de
exigible a l'hora de supervisar-la. reduccioÂ, la seva extensioÂ, depeÁn, d'una
Art. 6:102. Responsabilitat pels auxiliars banda, de la importaÁncia de la influeÁncia
externa i, de l'altra, de l'abast de la
(1) Una persona respon pel dany causat responsabilitat (article 3:201).
pels seus auxiliars en l'exercici de les (3) En el cas de la reduccio prevista en
seves funcions sempre que hagin violat l'apartat (1)(b), la responsabilitat
l'estaÁndard de conducta exigible. objectiva i qualsevol tipus de
(2) El contractista independent no es responsabilitat del tercer soÂn solidaÁries
considera auxiliar als efectes d'aquest conforme a alloÁ que disposa l'article
article. 9:101 (1)(b).
TIÂTOL IV. CAUSES CapõÂtol 8. Conducta o activitat
D'EXONERACIO Â
concurrent
CapõÂtol 7. Causes d'exoneracio en Art. 8:101. Conducta o activitat
general concurrent de la võÂctima
Art. 7:101. Causes de justificacioÂ
(1) Pot excloure's o reduir-se la
(1) Pot excloure's la responsabilitat de responsabilitat en la mesura en queÁ es
qui ha actuat legõÂtimament en la mesura consideri just atesa la culpa concurrent
en queÁ ho hagi fet: de la võÂctima i qualssevol altres
intereÁs pot justificar la compensacio del (incloses les que corresponguin a les
dany no patrimonial. Aquest eÂs el cas, persones properes a la võÂctima que ha
en especial, si la võÂctima ha sofert un mort o que ha sofert lesions greus)
dany corporal o un dany a la dignitat s'hauran de concedir sumes
humana, a la llibertat o a altres drets de indemnitzatoÁries similars per aquelles
la personalitat. Tambe pot rescabalar-se peÁrdues que siguin objectivament
el dany no patrimonial d'aquelles similars.
persones properes a la võÂctima d'un
accident mortal o d'una lesio molt greu. Seccio 4. Reduccio de la indemnitzacioÂ
(2) En general, per quantificar aquests Art. 10:401. Reduccio de la
danys hom tindraÁ en compte totes les indemnitzacioÂ
circumstaÁncies del cas, incloent la
gravetat, durada i consequÈeÁncies del En casos excepcionals, pot reduir-se la
dany. Hom tindraÁ en compte el grau de indemnitzacio si la compensacio õÂntegra
culpa del causant del dany nomeÂs si comporta una caÁrrega opressiva per al
contribueix al dany de la võÂctima de demandat atesa la situacio econoÁmica de
manera significativa. les parts. Per determinar si escau
(3) En els casos de dany corporal, el aquesta reduccioÂ, hom hauraÁ de tenir en
dany no patrimonial correspon al compte, de manera especial, el fonament
sofriment de la võÂctima i al perjudici de de la responsabilitat (article 1:101),
la seva salut fõÂsica o psõÂquica. En la l'abast de la proteccio de l'intereÁs
quantificacio de les indemnitzacions (article 2:102) i la magnitud del dany.
Czech Translation
by JirÏõÂ HraÂdek and LubosÏ TichyÂ
* Version francËaise reÂaliseÂe sous la direction du Professeur Olivier MoreÂteau par l'eÂquipe de
recherche de l'Institut de droit compare Edouard Lambert (Universite Jean Moulin Lyon 3)
en novembre 2003 aÁ l'occasion de la reÂunion aÁ Lyon du European Group on Tort Law (13 au
15 novembre 2003) et reÂviseÂe le 31 deÂcembre 2004.
moment que cette cause se trouve dans eÃtre attendu de la personne engageÂe
sa spheÁre d'influence. dans cette activiteÂ, de la preÂvisibilite du
dommage, de la relation de proximiteÂ
Section 2. Etendue de la responsabiliteÂ
ou de confiance particulieÁre entre les
Art. 3:201. Etendue de la responsabilite personnes impliqueÂes, ainsi que de la
Lorsqu'une activite est une cause au disponibilite et du couÃt des mesures de
sens de la section 1 du preÂsent chapitre, protection ou meÂthodes alternatives.
la question de savoir si le dommage (2) Le standard preÂcite peut eÃtre ajusteÂ
peut eÃtre impute aÁ une personne et aÁ lorsqu'en raison de l'aÃge, du handicap
quelle hauteur il peut l'eÃtre deÂpend de mental ou physique ou lorsqu'en raison
facteurs tels que: de circonstances extraordinaires, il n'est
a) la preÂvisibilite du dommage par une pas possible d'exiger d'une personne
personne raisonnable au moment de qu'elle s'y conforme.
l'activiteÂ, eu eÂgard notamment aÁ la (3) Les reÁgles prescrivant ou prohibant
proximite dans le temps ou l'espace de certaines conduites doivent eÃtre prises
l'activite dommageable et de ses en consideÂration afin d'eÂtablir le
conseÂquences, ou de l'importance du standard de conduite requis.
dommage face aux conseÂquences Art. 4:103. Devoir de proteÂger autrui
normales d'une telle activiteÂ; d'un dommage
b) la nature ou la valeurs de l'inteÂreÃt
Un devoir d'agir positivement pour
proteÂge (Art. 2:102);
proteÂger autrui d'un dommage peut
c) le fondement de la responsabiliteÂ
exister lorsque la loi le preÂvoit ou
(Art. 1:101);
lorsque l'auteur creÂe ou controÃle une
d) l'eÂtendue des risques ordinaires de la
situation dangereuse ou lorsque les
vie; et
parties entretiennent des relations
e) l'objectif de protection assigne aÁ la particulieÁres ou lorsque le caracteÁre
reÁgle qui a eÂte violeÂe. seÂrieux du dommage d'une part et le fait
qu'il eut eÂte aise de l'eÂviter d'autre part,
TITRE III. Les fondements de la induit une telle obligation.
responsabiliteÂ
Section 2. Renversement de la charge de
Chapitre 4. La responsabilite pour faute la preuve de la faute
Section 1. Les conditions de la Art. 4:201. Renversement de la charge
responsabilite pour faute de la preuve de la faute, geÂneÂraliteÂs
Art. 4:101. Faute (1) La charge de rapporter la preuve
Toute personne qui viole intentionelle- d'une faute pourra eÃtre renverseÂe aÁ la
ment ou par negligence, le standard de lumieÁre de la gravite du danger preÂsenteÂ
conduite requis, engage sa par l'activiteÂ.
responsabilite pour faute. (2) La gravite du danger se deÂtermine
en fonction du seÂrieux d'un dommage
Art. 4:102. Standard de conduite requis
potentiel dans de telles circonstances,
(1) Le standard de conduite requis est ainsi que de la probabilite qu'un tel
celui qu'aurait adopte une personne dommage ne survienne effectivement.
raisonnable, placeÂe dans les meÃmes
Art. 4:202. Responsabilite du fait de
circonstances, et deÂpend, notamment,
l'entreprise
de la nature et de la valeur de l'inteÂreÃt
proteÂge en question, de la dangerosite (1) Toute personne poursuivant une
de l'activiteÂ, du savoir-faire qui pouvait activite durable dans un but
Art. 2:105. Beweis des Schadens kehrbar herbeigefuÈhrt hat, wird eine
Der Schaden ist gemaÈû den prozessua- nachfolgende AktivitaÈt, die fuÈr sich
denselben Schaden herbeigefuÈhrt haÈtte,
len Regeln zu beweisen. Das Gericht
nicht beruÈcksichtigt.
darf den Umfang des Schadens schaÈtzen,
wenn der Beweis des genauen Betrages (2) Eine nachfolgende AktivitaÈt wird
zu schwierig oder kostspielig waÈre. allerdings dann beruÈcksichtigt, wenn sie
zu einem zusaÈtzlichen oder einem
Kapitel 3. Verursachung schwereren Schaden fuÈhrte.
Abschnitt 1. Notwendige Bedingung (3) Wenn die erste AktivitaÈt zu einem
und EinschraÈnkungen fortlaufend eintretenden Schaden fuÈhrte
und die nachfolgende AktivitaÈt den
Art. 3:101. Notwendige Bedingung
Schaden zu einem spaÈteren Zeitpunkt
(conditio sine qua non)
ebenso herbeigefuÈhrt haÈtte, werden ab
Ein Geschehen oder Verhalten (im Fol- diesem spaÈteren Zeitpunkt beide Akti-
genden: AktivitaÈt) ist dann Ursache des vitaÈten als Ursache dieses fortlaufend
beim GeschaÈdigten eingetretenen Scha- eintretenden Schadens betrachtet.
dens, wenn ohne diese AktivitaÈt der
Art. 3:105. Unbestimmte anteilige
Schaden nicht eingetreten waÈre.
KausalitaÈt
Art. 3:102. Konkurrierende Ursachen
Ist sicher, dass von mehreren AktivitaÈ-
HaÈtte von mehreren AktivitaÈten jede ten keine den gesamten Schaden oder
allein den Schaden zur selben Zeit her- zumindest einen bestimmbaren Teil
beigefuÈhrt, so wird jede als Ursache davon herbeigefuÈhrt hat, so ist davon
angesehen. auszugehen, dass all jene, die wahr-
Art. 3:103. Alternative Ursachen scheinlich geringfuÈgig zum Schaden bei-
getragen haben, dies zu gleichen Teilen
(1) WaÈre von mehreren AktivitaÈten getan haben.
jede einzelne in der Lage gewesen, den
Schaden herbeizufuÈhren, ist es jedoch Art. 3:106. Unsichere Ursachen in der
ungewiû, welche von ihnen den Schaden SphaÈre des GeschaÈdigten
tatsaÈchlich verursacht hat, so wird jede Der GeschaÈdigte hat seinen Schaden
AktivitaÈt entsprechend der Wahrschein- entsprechend der Wahrscheinlichkeit,
lichkeit ihrer UrsaÈchlichkeit fuÈr den dass der Schaden moÈglicherweise von
Schaden als Ursache angesehen. einer AktivitaÈt, einem Ereignis oder
(2) Wenn es in FaÈllen mehrerer anderen UmstaÈnden in seiner eigenen
GeschaÈdigter ungewiû bleibt, ob der SphaÈre verursacht wurde, selbst zu tra-
Schaden eines bestimmten GeschaÈdig- gen.
ten durch eine AktivitaÈt verursacht
wurde, und es wahrscheinlich ist, dass Abschnitt 2. Haftungsumfang
diese nicht die SchaÈden aller GeschaÈ- Art. 3:201. Haftungsumfang
digten verursachte, dann wird die Akti-
vitaÈt in jenem Ausmaûe als Ursache der Wenn eine AktivitaÈt eine Ursache im
SchaÈden aller GeschaÈdigten angesehen, Sinne des Abschnitts 1 ist, so haÈngt es
das der Wahrscheinlichkeit der Verur- von Faktoren wie den folgenden ab, ob
sachung des Schadens eines bestimmten und in welchem Umfang SchaÈden einer
GeschaÈdigten entspricht. Person zugerechnet werden koÈnnen
a) die Vorhersehbarkeit des Schadens
Art. 3:104. Potentielle Ursachen
fuÈr eine vernuÈnftige Person zum Zeit-
(1) Wenn eine AktivitaÈt den Schaden punkt der AktivitaÈt, wobei insbesondere
des GeschaÈdigten endguÈltig und unum- die zeitliche und raÈumliche NaÈhe
schulden fuÈr jene SchaÈden, die von der Art. 6:102. Haftung fuÈr Hilfspersonen
AktivitaÈt verursacht werden und fuÈr das
(1) Soweit Hilfspersonen im Rahmen
von ihr ausgehende Risiko charakteris-
ihres Aufgabenbereiches taÈtig werden,
tisch sind.
dabei aber den erforderlichen Sorgfalts-
(2) Eine AktivitaÈt ist auûergewoÈhnlich maûstab (Art. 4:102) verletzen, haftet
gefaÈhrlich wenn ihr GeschaÈftsherr fuÈr den dadurch ver-
(a) sie eine vorhersehbare und hoÈchst ursachten Schaden.
signifikante Schadensgefahr schafft, (2) Ein selbstaÈndiger Unternehmer ist
selbst wenn jedwede gebotene Sorgfalt keine Hilfsperson im Sinne dieses Arti-
bei ihrer AusfuÈhrung gewahrt wird, und kels.
(b) sie nicht allgemein gebraÈuchlich ist. IV. TITEL. Einreden
(3) Eine Schadensgefahr kann unter
Kapitel 7. Einreden im allgemeinen
BeruÈcksichtigung der Schwere und der
Wahrscheinlichkeit eines Schadens sig- Art. 7:101. RechtfertigungsgruÈnde
nifikant sein. (1) Die Haftung kann ausgeschlossen
(4) Dieser Artikel ist nicht auf solche werden, wenn und soweit der Han-
AktivitaÈten anwendbar, die anderweitig delnde rechtmaÈûig
einer verschuldensunabhaÈngigen Haf- a) seine eigenen geschuÈtzten Interessen
tung unterstellt wurden, sei es durch gegen einen rechtswidrigen Angriff ver-
eine andere Bestimmung dieser Grund- teidigte (Notwehr),
saÈtze oder durch nationale oder inter- b) im Notstand handelte,
nationale Rechtsvorschriften. c) behoÈrdliche Hilfe nicht rechtzeitig in
Art. 5:102. Andere GefaÈhrdungs- Anspruch nehmen konnte (Selbsthilfe),
haftungen d) mit der Zustimmung des Opfers han-
delte, oder wenn dieses die Gefahr,
(1) Nationales Recht kann weitere geschaÈdigt zu werden, in Kauf genom-
Kategorien verschuldensunabhaÈngiger men hat, oder
Haftung fuÈr gefaÈhrliche AktivitaÈten e) auf der Grundlage einer gesetzmaÈûi-
vorsehen, selbst wenn diese nicht gen Berechtigung, zum Beispiel einer
auûergewoÈhnlich gefaÈhrlich sind. Bewilligung, handelte.
(2) Soweit nationales Recht dem nicht (2) Ob die Haftung ausgeschlossen wird,
entgegensteht, koÈnnen weitere Kategor- haÈngt vom Gewicht dieser Rechtferti-
ien verschuldensunabhaÈngiger Haftung gungsgruÈnde einerseits und den Vor-
in Analogie zu anderen Quellen einer aussetzungen der Haftung andererseits
vergleichbaren Schadensgefahr geschaf- ab.
fen werden. (3) In auûergewoÈhnlichen FaÈllen kann
die Haftung auch beschraÈnkt werden.
Kapitel 6. Haftung fuÈr andere
Art. 7:102. Einreden gegen GefaÈhr-
Art. 6:101. Haftung fuÈr MinderjaÈhrige dungshaftung
oder geistig Behinderte
(1) Eine GefaÈhrdungshaftung kann aus-
Wer fuÈr einen MinderjaÈhrigen oder geschlossen oder beschraÈnkt werden,
geistig Behinderten verantwortlich ist, wenn der Schaden verursacht wurde
haftet fuÈr den von diesem verursachten durch ein unvorhersehbares und unab-
Schaden, soweit er nicht nachweist, dass wendbares
er bei der Beaufsichtigung gemaÈû dem a) auûergewoÈhnliches Naturereignis
erforderlichen Sorgfaltsmaûstab gehan- (force majeure), oder ein
delt hat. b) Verhalten eines Dritten.
weiteren, fuÈr die BegruÈndung oder Be- je nachdem welche Form unter beson-
schraÈnkung der Haftung bedeutsamen derer BeruÈcksichtigung der Interessen
UmstaÈnde zu beruÈcksichtigen sind. Der des GeschaÈdigten angemessen ist.
Ausgleichsbeitrag kann den Umfang der
Art. 10:103. Durch das Schadensereignis
vollen EntschaÈdigung erreichen. LaÈsst
erlangte Vorteile
sich die jeweilige Verantwortlichkeit der
haftbaren Personen nicht bestimmen, Bei der Bemessung des Ersatzumfangs
dann sind sie als in gleicher Weise ver- sind Vorteile, die die verletzte Partei
antwortlich zu behandeln. durch das schaÈdigende Ereignis erlangt,
(3) Wenn eine Person gemaÈû Art. 9:101 zu beruÈcksichtigen, es sei denn, das ist
fuÈr einen Schaden haftbar ist, den eine mit dem Zweck des Vorteils unverein-
Hilfsperson verursacht hat, dann hat die bar.
Person auch den Verantwortungsteil zu
Art. 10:104. Wiederherstellung in Natur
tragen, der der Hilfsperson zuzurechnen
ist, soweit es um die Ausgleichung An Stelle von Geldersatz kann die ver-
gegenuÈber einem anderen SchaÈdiger als letzte Partei Wiederherstellung in Natur
der Hilfsperson geht. verlangen, soweit dies moÈglich und nicht
(4) Die Verpflichtung, einen Aus- zu belastend fuÈr die andere Partei ist.
gleichsbeitrag zu leisten, ist eine Teil- Abschnitt 2. VermoÈgensschaden
schuld: der Verpflichtete haftet nur fuÈr
seinen Verantwortungsanteil an dem Art. 10:201. Art und Bemessung des
Schaden nach diesem Artikel. Sofern VermoÈgensschadens
sich ein Urteil auf einen Ausgleichsbei- Die durch das schaÈdigende Ereignis
trag gegen einen Haftpflichtigen nicht verursachte Minderung des VermoÈgens
vollstrecken laÈsst, ist sein Anteil unter des GeschaÈdigten stellt den ersatzfaÈhi-
den uÈbrigen Haftpflichtigen entspe- gen VermoÈgensschaden dar. Dieser
chend ihrem jeweiligen Verantwortung- Schaden ist grundsaÈtzlich so konkret wie
steil zu verteilen. moÈglich zu bestimmen; in geeigneten
VI. TITEL. Rechtsbehelfe FaÈllen kann er auch abstrakt bestimmt
werden, z.B. durch RuÈckgriff auf den
Kapitel 10. Schadensersatz Marktwert.
Abschnitt 1. Allgemeine Regeln Art. 10:202. Personenschaden und Tod
Art. 10:101. Art und Zweck des (1) Im Fall eines Personenschadens, der
Schadensersatzes Verletzungen der koÈrperlichen Gesund-
Schadensersatz ist als Geldzahlung an heit und, soweit sie zu einer anerkann-
den GeschaÈdigten zu leisten, um seinen ten Krankheit fuÈhren, der geistigen
Schaden auszugleichen und ihn, soweit Gesundheit umfasst, schlieût der Ver-
das durch die Geldzahlung zu erreichen moÈgensschaden einen Einkommensver-
ist, so zustellen, wie er gestanden haÈtte, lust, die Minderung der ErwerbsfaÈhig-
wenn das schaÈdigende Ereignis nicht keit (auch wenn sie nicht von einem
eingetreten waÈre. Schadensersatz dient Einkommensverlust begleitet wird)
auch dem Ziel, SchaÈdigungen vorzu- sowie angemessene Ausgaben, ein-
beugen. schlieûlich der Kosten fuÈr medizinische
Behandlung ein.
Art. 10:102. Kapitalabfindung oder
(2) Im Fall des Todes einer Person
Geldrente
haben Personen, die wie insbesondere
Schadensersatz ist entweder als Kapital- Familienmitglieder vom GetoÈteten
abfindung oder als Geldrente zu leisten, unterhalten wurden oder ohne seinen
(1) Soweit das Ausmaû seines Schutzes Wenn in einem auûergewoÈhnlichen Fall
das rechtfertigt (Art. 2:102), kann die im Hinblick auf die finanzielle Lage der
Verletzung eines Interesses den Aus- Parteien die volle Ersatzpflicht eine
gleich eines NichtvermoÈgensschadens erdruÈckende Belastung fuÈr den Beklag-
rechtfertigen. Das ist insbesondere der ten bedeuten wuÈrde, kann der Umfang
Fall, wenn der GeschaÈdigte einen Per- der Schadensersatzpflicht herabgesetzt
sonenschaden erlitten hat oder seine werden. Bei der Entscheidung daruÈber
menschliche WuÈrde, Freiheit oder ein sind insbesondere der Grund der Haf-
anderes PersoÈnlichkeitsrecht verletzt tung (Art. 1:101), das Ausmaû des
worden ist. Ausgleich ihres Nichtver- Schutzes des Interesses (Art. 2:102) und
moÈgensschadens koÈnnen auch Personen die GroÈûe des Schadens zu beruÈcksich-
verlangen, die in einer engen Beziehung tigen.
èAqh. 2:104. Dapaème| pqo| pqoè kgwg sg| dqarsgqioèsgsa atsgè hexqeiè sai aisiè a sg|
fgliè a| fgliè a| pot eèvotm tporseiè oèka sa htèlasa
amaèkoca le sgm pihamoèsgsa ma eèvei
Dapaème| pqo| pqoèkgwg apeikotèlemg|
pqojakeèrei sg fgliè a emoè|
fgliè a| apojahiè rsamsai rso bahloè pot
eiè mai etèkoce|. rtcjejqileèmot htèlaso|.
èAqh. 2:105. Apoèdeing sg| fgliè a| èAqh. 3:104. Epajokothotè re| aisiè e|
(1) Am lia dqarsgqioèsgsa eèvei oqirsijaè
G fgliè a pqeèpei ma apodeijmtè esai
jai lg amarsqeè wila pqojakeè rei fgliè a
rtèluxma le sot| rtmgèhei| dijomolijotè |
rso htè la, epajokothotèra
jamoème|. So dijarsgèqio lpoqeiè ma
dqarsgqioèsgsa g opoiè a atsosekxè| ha
ejsilgèrei sgm eè jsarg sg| fgliè a| oèsam g
lpoqotè re ma eiè ve pqojakeèrei sgm iè dia
apoèdeing sot ajqibotè| porotè ha gèsam
fgliè a dem kalbaèmesai tpoèwg.
enaiqesija dtè rjokg gè enaiqesija
dapamgqgè. (2) Epajokothotèra dqarsgqioèsgsa
kalbaèmesai tpoèwg loèmo am eè vei
Jeuaèkaio 3. Aisixèdg| rtèmderlo| odgcgèrei re epipqoèrhesg gè episaheiè ra
Emoè sgsa 1. Amacjaiè o| oèqo| (conditio sine fgliè a.
qua non) jai diajqiè rei| (3) Am g pqxèsg dqarsgqioèsgsa
pqojaèkere rtmevifoèlemg fgliè a sgm
èAqh. 3:101. Conditio sine qua non
opoiè a ha eiè ve pqojakeè rei epiè rg| jai g
Lia dqarsgqioèsgsa gè rtlpeqiuoqaè epajokothotè ra dqarsgqioèsgsa, euengè|
(euengè| dqarsgqioèsgsa) eiè mai g aisiè a jai oi dtè o dqarsgqioèsgse| hexqotèmsai
sg| fgliè a| sot htèlaso| am, lg aisiè e| atsgè| sg| rtmevifoèlemg| fgliè a|.
tpaqvotèrg| sg| dqarsgqioèsgsa| atsgè|,
g fgliè a de ha epeqvoèsam. èAqh. 3:105. Abeè baig leqijgè aisioèsgsa
Re peqiè psxrg pkeioèmxm
èAqh. 3:102. Rtmsqeè votre| aisiè e|
dqarsgqiosgèsxm, oèsam eiè mai beèbaio oèsi
Re peqiè psxrg pkeioèmxm jaliè a apoè atseè| dem pqojaèkere
dqarsgqiosgèsxm, apoè si| opoiè e| jaheliè a okoèjkgqg sg fgliè a gè jaèpoio oqirsoè
loèmg sg| ha eiè ve pqojakeèrei sg fgliè a slgèla sg|, atseè| pot eiè mai pihamoèm ma
jasaè som iè dio vqoèmo, jaèhe eèvotm ekaèvirsa rtlbaèkei rsg fgliè a
dqarsgqioèsgsa hexqeiè sai aisiè a sg| sejlaiè qomsai oèsi eèvotm pqojakeè rei iè ra
fgliè a| sot htèlaso|. slgèlasaè sg|.
èAqh. 3:103. Diafetjsijeè | aisiè e| èAqh. 3:106. Abeè baie| aisiè e| emsarroèleme|
(1) Re peqiè psxrg pkeioèmxm rsg ruaiè qa sot htèlaso|
dqarsgqiosgèsxm, apoè si| opoiè e| jaheliè a So htèla pqeè pei ma tpoleiè mei sg fgliè a sot
loèmg sg| ha aqjotè re cia ma pqojakeè rei rso bahloè pot amsapojqiè mesai rsgm
sg fgliè a, akkaè paqaleèmei abeè baio poia pihamoèsgsa ma eè vei pqojkgheiè apoè
pqaèclasi sgm pqojaèkere, jaèhe dqarsgqioèsgsa, rtlbaèm gè aèkkg
dqarsgqioèsgsa hexqeiè sai aisiè a eaèm eiè mai peqiè rsarg pot emsaèrresai rsgm dijgè sot
pihamoè ma eè vei pqojakeè rei sg fgliè a sot ruaiè qa.
htèlaso|.
Emoè sgsa 2. è Ejsarg sg| ethtè mg|
(2) Am, re peqiè psxrg pkeioèmxm htlaèsxm,
paqaleè mei abeèbaio am emoè| èAqh. 3:201. è Ejsarg sg| ethtèmg|
rtcjejqileèmot htèlaso| g fgliè a eèvei è Oam lia dqarsgqioèsgsa aposekeiè aisiè a
pqojkgheiè apoè lia dqarsgqioèsgsa, emxè jasaè sgm eè mmoia sg| emoèsgsa| 1 atsotè sot
eiè mai pihamoè g rtcjejqileèmg jeuakaiè ot, so am jai re poia eèjsarg g
dqarsgqioèsgsa ma lgm eè vei pqojakeè rei fgliè a lpoqeiè ma jasakocirheiè re eè ma
sg fgliè a oèkxm sxm htlaèsxm, g pqoèrxpo enaqsaèsai apoè paqaècomse| oèpx|
a) amxseè qa biè a (force majeure), gè pqoèrxpa. G ethtè mg eiè mai ei| okoèjkgqom
b) rtlpeqiuoqaè sqiè sot pqorxèpot. oèsam:
(2) So am g amsijeilemijgè ethtèmg ha a) eè ma pqoèrxpo em cmxèrei sot
apojkeirheiè gè ha peqioqirseiè , jai am mai rtlleseèvei gè tpojimeiè gè paqosqtè mei sgm
re poia eèjsarg, enaqsaèsai apoè so baèqo| seèkerg adijopqaniè a| apoè aèkkot| g
sg| enxseqijgè| epiqqogè| apoè sg lia opoiè a pqojakeiè fgliè a rso htè laÍ gè
pketqaè jai sgm eèjsarg sg| ethtèmg| b) g amenaèqsgsg rtlpeqiuoqaè gè
(aèqhqo 3:201) apoè sgm aèkkg. dqarsgqioèsgsa emoè| pqorxèpot pqojakeiè
(3) Re peqiè psxrg peqioqirlotè rtèluxma fgliè a rso htèla jai g iè dia fgliè a lpoqeiè
le sgm paqaècqauo (1)(b), g epiè rg| ma jasakocirheiè jai re aèkko
amsijeilemijgè ethtèmg jai opoiadgèpose pqoèrxpo.
ethtèmg sot sqiè sot pqorxèpot eiè mai ei| c) eè ma pqoèrxpo ethtèmesai cia sg fgliè a
okoèjkgqom rtè luxma le so aèqhqo 9:101 pot pqojkgèhgje apoè som pqorsgheèmsa
(1)(b). re rtmhgèje| pot jahirsotèm jai som
Jeuakaiè o 8. Rtmsqeè votra dqarsgqioèsgsa pqorsgheèmsa epiè rg| tpetè htmo.
gè rtlpeqiuoqaè (2) è Osam peqirroèseqoi tpeèvotm ethtèmg
ei| okoèjkgqom, so htèla lpoqeiè ma
èAqh. 8:101. Rtmsqeè votra dqarsgqioèsgsa
apaisgèrei pkgèqg apofgliè xrg apoè
gè rtlpeqiuoqaè sot htè laso|
opoiomdgèpose gè opoiotrdgèpose apoè
(1) G ethtèmg lpoqeiè ma apojkeirheiè gè ma atsotè|, tpoè sgm pqotçpoèherg oèsi so htèla
peqioqirseiè rso bahloè pot hexqeiè sai dem lpoqeiè ma kaèbei peqirroèseqa apoè so
diè jaio kalbamoleè mxm tpoèwg sot rtmokijoè poroè sg| fgliè a| pot tpeèrsg.
rtmsqeèvomso| psaiè rlaso| sot htè laso| (3) G fgliè a eiè mai g iè dia fgliè a cia sot|
jai opoixmdgèpose aèkkxm fgsglaèsxm rjopotè| sg| paqacqaèuot (1)(b) amxseè qx
rvesijxèm le sgm jahieèqxrg gè som oèsam dem tpaèqvei kocijgè baèrg pqo|
peqioqirloè sg| ethtèmg| sot htè laso| am jasakocirloè loèmo leèqot| sg| re jaheèma
gèsam atsoè o fglixèra|. apoè sa ethtmoèlema apeè mamsi rso htèla
(2) è Osam anixèmesai apofgliè xrg pqoèrxpa. Cia so rjopoè atsoè so pqoèrxpo
amauoqijaè le so haèmaso pqorxèpot, g pot irvtqiè fesai oèsi g fgliè a dem eiè mai g
rtlpeqiuoqaè gè g dqarsgqioèsgsaè sot iè dia oueiè kei ma apodeiè nei oèsi dem eiè mai.
apojkeiè ei gè peqioqiè fei sgm ethtèmg è Oam tpaèqvei seè soia baèrg, g ethtèmg eiè mai
rtèluxma le sgm paqaècqauo 1. diaiqesgè, dgkadgè jaèhe pqoèrxpo
(3) G rtmsqeèvotra dqarsgqioèsgsa gè ethtèmesai apeè mamsi rso htèla loèmo cia so
rtlpeqiuoqaè sot pqorsgheè mso| sot leèqo| sg| fgliè a| pot jasakociè fesai re
htèlaso| apojkeiè ei gè peqioqiè fei sgm atsoè.
apofgliè xrg sot htèlaso| rtè luxma le
èAqh. 9:102. Rveè rg lesantè sxm pqorxèpxm
sgm paqaècqauo 1.
pot ethtèmomsai ei| okoèjkgqom
SISKOR V. Fgliè a apoè peqirroseè qot|
(1) Pqoèrxpo pot ethtèmesai ei|
Jeuaèkaio 9. Fgliè a apoè peqirroseè qot| okoèjkgqom eèvei dijaiè xla amacxcgè|
eèmamsi opoiotdgèpose aèkkot pqorxèpot
èAqh. 9:101. Ei| okoèjkgqom jai diaiqesgè
pot ethtè mesai apeèmamsi rso htèla
ethtè mg: rveè rg lesantè htè laso| jai
amauoqijaè le sgm iè dia fgliè a. Atsoè so
peqirroè seqxm fglixraèmsxm
dijaiè xla dem epgqeaèfei opoiadgèpose
(1) G ethtèmg eiè mai ei| okoèjkgqom oèsam lesantè sot| rtèlbarg g opoiè a
okoèjkgqg gè eèma diajqisoè leèqo| sg| pqordioqiè fei sgm jasamolgè sg| fgliè a| gè
fgliè a| pot eèvei tporseiè so htèla lpoqeiè opoiadgèpose molohesijgè diaèsang gè
ma jasakocirheiè re dtèo gè peqirroèseqa opoiodgèpose dijaiè xla amacxcgè|
Art. 2:105. Prova del danno medesimo danno non deve essere
considerata.
Il danno deve essere provato secondo i
(2) Un'attivitaÁ successiva eÁ presa in
normali standard. La corte puoÁ valutare
considerazione se ha comportato danni
la misura del danno ove la prova del suo
ulteriori o piuÁ gravi.
preciso ammontare sia troppo difficile o
troppo costosa. (3) Se una prima attivitaÁ ha causato un
danno continuato e anche un'attivitaÁ
Capo 3. CausalitaÁ successiva lo avrebbe causato da un
Sezione 1. Conditio sine qua non e momento successivo, da quel momento
limitazioni in poi entrambe sono considerate come
causa di quel danno continuato.
Art. 3:101. Conditio sine qua non
Art. 3:105. CausalitaÁ incerta parziale
Un'attivitaÁ o condotta (da ora in avanti:
In caso di attivitaÁ molteplici, quando eÁ
attivitaÁ) eÁ causa del danno subito dalla
certo che nessuna di esse ha causato
vittima se, in assenza di tale attivitaÁ, il
l'intero danno o alcuna parte
danno non si sarebbe realizzato.
determinabile dello stesso, tutte quelle
Art. 3:102. Cause concorrenti che probabilmente hanno contribuito
[anche in modo minimo] a causare il
In caso di molteplici attivitaÁ, ove
danno si presume lo abbiano causato in
ciascuna di esse da sola avrebbe causato
ugual misura.
il danno nello stesso tempo, ciascuna
attivitaÁ eÁ considerata causa del danno Art. 3:106. Cause incerte nella sfera di
subito dalla vittima. influenza del danneggiato
Art. 3:103. Cause alternative La vittima deve sopportare il danno
nella misura corrispondente alla
(1) In caso di molteplici attivitaÁ, ove
possibile incidenza di un'attivitaÁ, evento
ciascuna sarebbe stata sufficiente a
o altre circostanze riferibili alla propria
causare il danno, ma rimane incerto
sfera di influenza.
quale di esse lo abbia in realtaÁ causato,
ciascuna attivitaÁ eÁ considerata causa del Sezione 2. Ambito della responsabilitaÁ
danno in proporzione al suo contributo
Art. 3:201. Ambito della responsabilitaÁ
probabile al verificarsi del danno subito
dalla vittima. Quando una attivitaÁ eÁ causa del danno
(2) In caso di molteplici vittime, qualora ai sensi della sezione 1 di questo capo,
rimanga incerto se il danno di una se e entro che limiti il danno possa
particolare vittima sia stato causato da essere attribuito ad una persona
una specifica attivitaÁ, mentre eÁ dipende da fattori quali:
probabile che essa non abbia causato il a) la prevedibilitaÁ del danno da parte di
danno di tutte le vittime, questa eÁ persona ragionevole al momento dello
considerata causa del danno sofferto da svolgimento dell'attivitaÁ, tenendo in
tutte le vittime in proporzione al suo considerazione in particolare la
contributo probabile al verificarsi del contiguitaÁ nel tempo o nello spazio tra
danno subito da quella vittima. l'attivitaÁ dannosa e le sue conseguenze,
ovvero l'entitaÁ del danno in relazione
Art. 3:104. Cause potenziali alle normali conseguenze di tale attivitaÁ.
(1) Se un'attivitaÁ ha comportato che una b) la natura e il valore dell'interesse
vittima subisca un danno in modo certo protetto (Articolo 2:102);
e irreversibile, una successiva attivitaÁ c) la fonte della responsabilitaÁ (Articolo
che da sola avrebbe potuto causare il 1:101);
d) i limiti dei rischi ordinari della vita; e o quando la serietaÁ della lesione da un
e) lo scopo di protezione della norma lato e la facilitaÁ di evitare il danno,
violata. dall'altro, implicano un tale dovere.
TITOLO III. Fonte della responsabilitaÁ Sezione 2. Inversione dell'onere di
provare la colpa
Capo 4. ResponsabilitaÁ fondata sulla
colpa Art. 4:201. Inversione dell'onere di
Sezione 1. Presupposti della provare la colpa in generale
responsabilitaÁ fondata sulla colpa (1) L'onere di provare la colpa puoÁ
Art. 4:101. Colpa essere invertito alla luce della gravitaÁ
del pericolo presentato dall'attivitaÁ.
Un soggetto che dolosamente o per
(2) La gravitaÁ del pericolo eÁ
negligenza viola lo standard di condotta
determinata in base alla serietaÁ di un
richiesto eÁ responsabile per colpa.
possibile danno in simili casi cosõÁ come
Art. 4:102. Standard di condotta in ragione della probabilitaÁ che tale
richiesto danno possa effettivamente verificarsi
(1) Lo standard di condotta richiesto eÁ Art. 4:202. ResponsabilitaÁ di impresa
quello di una persona ragionevole nelle
(1) Una persona che esercita in modo
circostanze del caso concreto e dipende,
durevole una impresa per scopi di lucro
in particolare, dalla natura e valore
o professionali avvalendosi di ausiliari o
dell'interesse protetto, dalla pericolositaÁ
di apparecchiature tecniche eÁ responsa-
dell'attivitaÁ, dalla perizia che ci si
bile per ogni danno causato da un
aspetta da una persona che la esercita,
difetto di tale impresa o della sua
dalla prevedibilitaÁ del danno, dalla
produzione salvo che provi di avere
relazione di prossimitaÁ o di specifico
adottato lo standard di condotta
affidamento tra i soggetti coinvolti, cosõÁ
richiesto
come dalla disponibilitaÁ e dal costo delle
(2) ¹Difettoª eÁ ogni deviazione dagli
misure di prevenzione o dei metodi
standard che possono ragionevolmente
alternativi.
pretendersi dall'impresa o dai suoi
(2) Il suddetto standard puoÁ essere
prodotti o servizi.
corretto ove richiesto quando in ragione
della etaÁ, della disabilitaÁ fisica o psichica Capo 5. ResponsabilitaÁ oggettiva
o in relazione a circostanze straordinarie Art. 5:101. AttivitaÁ straordinariamente
non eÁ esigibile una condotta ad esso pericolose
conforme.
(3) Regole che prescrivono o (1) Chiunque eserciti un'attivitaÁ
proibiscono determinate condotte straordinariamente pericolosa eÁ
devono essere prese in considerazione oggettivamente responsabile per il
nello stabilire lo standard di condotta danno caratteristico del rischio
richiesto. presentato dall'attivitaÁ e risultante dal
medesimo.
Art. 4:103. Dovere di proteggere altri da (2) Un'attivitaÁ eÁ straordinariamente
un danno pericolosa se
Un dovere di agire positivamente per a) crea un rischio particolarmente
proteggere altri da un danno puoÁ significativo e prevedibile di danno
sussistere se previsto dalla legge, o se il anche quando sono esercitate tutte le
soggetto agente crea o controlla una attenzioni nel suo esercizio e
situazione pericolosa o quando tra le b) non corrisponda a pratiche di uso
parti intercorra una specifica relazione, comune.
(3) Un rischio di danno puoÁ essere a) in difesa dei propri interessi protetti
significativo con riferimento alla serietaÁ contro una aggressione ingiustificata
o alla probabilitaÁ dello stesso. (legittima difesa)
(4) Questo articolo non si applica ad b) in stato di necessitaÁ
un'attivitaÁ se eÁ specificamente c) perche l'intervento delle autoritaÁ non
sottoposta a responsabilitaÁ oggettiva da poteva essere ottenuto in tempo (auto-
altre previsioni di questi Principi ovvero tutela)
da una legge nazionale o da una d) con il consenso del danneggiato, o nel
convenzione internazionale. caso in cui quest'ultimo abbia assunto il
Art. 5:102. Altre fattispecie di rischio di essere danneggiato, o
responsabilitaÁ oggettiva e) in virtuÁ di un provvedimento
legittimo, come in caso di una
(1) Il diritto nazionale puoÁ prevedere
autorizzazione.
altre ipotesi di responsabilitaÁ oggettiva
(2) L'esclusione della responsabilitaÁ
per attivitaÁ pericolose anche se l'attivitaÁ
dipende dal peso di queste
non eÁ straordinariamente pericolosa.
giustificazioni, da un lato e, dall'altro,
(2) Salvo che il diritto nazionale non
dalle condizioni della responsabilitaÁ.
preveda diversamente, ipotesi ulteriori
(3) In casi straordinari, la responsabilitaÁ
di responsabilitaÁ oggettiva possono
puoÁ essere anche soltanto ridotta.
essere individuate in analogia con altre
fonti di rischio di danno comparabili. Art. 7:102. Cause di esonero dalla
responsabilitaÁ oggettiva
Capo 6. ResponsabilitaÁ per fatto altrui
Art. 6:101. ResponsabilitaÁ per minori o (1) La responsabilitaÁ oggettiva puoÁ
incapaci psichici essere esclusa o ridotta se la lesione eÁ
stata causata da una irresistibile e
Chiunque sia tenuto alla sorveglianza di
imprevedibile
un minore o di un soggetto affetto da dis-
a) causa di forza maggiore, o
abilitaÁ psichica eÁ responsabile per il danno
b) condotta di un terzo.
causato da questi, salvo che non provi di
(2) L'esclusione o la riduzione, ed in tal
avere osservato lo standard di condotta
caso anche il limite della riduzione della
richiesto nella sorveglianza.
responsabilitaÁ oggettiva dipendono dal
Art. 6:102. ResponsabilitaÁ per fatto peso dell'influenza esterna, da un lato,
degli ausiliari e, dall'altro, dall'ambito della
(1) Chiunque eÁ responsabile per il responsabilitaÁ (Articolo 3:201).
danno causato dai propri ausiliari, che (3) Se ridotta in base al paragrafo
agiscono nell'ambito delle proprie (1)(b), la responsabilitaÁ oggettiva e ogni
funzioni, in violazione dello standard di responsabilitaÁ del terzo sono solidali a
condotta richiesto. norma dell'articolo Articolo 9:101 (1)(b)
(2) Un collaboratore autonomo non eÁ Capo 8. Concorso di condotta o attivitaÁ
considerato ausiliare ai fini del presente
articolo. Art. 8:101. Concorso di condotta o
attivitaÁ del danneggiato
TITOLO IV. Cause di esclusione o
limitazione della responsabilitaÁ (1) La responsabilitaÁ puoÁ essere esclusa
o ridotta nei limiti ritenuti giusti con
Capo 7. Cause generali
riferimento al concorso di colpa del
Art. 7:101. Cause di giustificazione danneggiato e a ogni altro elemento che
(1) La responsabilitaÁ puoÁ essere esclusa sarebbe rilevante nel determinare o
se e nei limiti in cui il soggetto abbia ridurre la responsabilitaÁ del danneggiato
agito legittimamente: se questi fosse il danneggiante.
(2) Nel caso in cui siano chiesti i danni ossia ciascun danneggiante eÁ
con riferimento alla morte di una responsabile solo per la parte del danno
persona, la condotta o attivitaÁ di ad esso imputabile.
quest'ultimo esclude o riduce la
responsabilitaÁ in base al comma 1. Art 9:102 Rapporti tra i soggetti
(3) La condotta o attivitaÁ concorrente di solidalmente responsabili
un ausiliare del danneggiato esclude o
(1) Un soggetto solidalmente
riduce i danni a questi risarcibili in base
responsabile ha diritto di ottenere
al comma 1.
regresso in via di contributo da ogni
TITOLO V. PluralitaÁ di danneggianti altro soggetto responsabile verso la
vittima per il medesimo danno.
Capo 9. PluralitaÁ di danneggianti
Questo diritto non pregiudica alcun
Art 9:101 ResponsabilitaÁ solidale e eventuale contratto tra di essi per
parziaria: rapporti tra il danneggiato e determinare la ripartizione della
una pluralitaÁ di danneggianti perdita ne un'eventuale previsione
di legge o un altro diritto di
(1) La responsabilitaÁ eÁ solidale quando
recupero per surrogazione o sulla
l'intero danno sofferto dalla vittima o
base di un'azione per ingiustificato
una parte distinguibile dello stesso sia
arricchimento.
imputabile a due o piuÁ soggetti. La
responsabilitaÁ eÁ solidale quando: (2) Alle condizioni di cui al comma 3 di
a) un soggetto partecipa questo articolo, la quota di contributo eÁ
consapevolmente o istiga o incoraggia quella ritenuta giusta alla luce della
l'illecito di altri che causa danno al relativa responsabilitaÁ per il danno,
danneggiato; o avendo riguardo ai rispettivi concorsi di
colpa e ad ogni altro elemento rilevante
b) il comportamento o l'attivitaÁ
per stabilire o ridurre la responsabilitaÁ
indipendenti di un soggetto causa un
di ciascuno. L'importo del regresso puoÁ
danno alla vittima e il medesimo danno
coincidere con l'intero risarcimento. Se
eÁ imputabile anche ad un altro; o
non eÁ possibile determinare la
c) un soggetto eÁ responsabile per il
responsabilitaÁ relativa di ciascuno le
danno causato da un ausiliare nelle
responsabilitaÁ si presumono uguali.
circostanze in cui anche l'ausiliario eÁ
responsabile. (3) Un soggetto responsabile per il
(2) Qualora piuÁ soggetti siano danno causato da un ausiliare ai sensi
solidalmente responsabili, la vittima puoÁ dell'articolo 9:101 si considera
chiedere l'intero risarcimento a uno o responsabile per l'intera parte
piuÁ di loro, a condizione che il attribuibile all'ausiliare quando vi sia
danneggiato non riceva piuÁ dell'intero responsabilitaÁ solidale tra costui e altri
danno sofferto. responsabili diversi dall'ausiliare.
(3) Il danno eÁ considerato come il (4) L'obbligazione di contribuire eÁ
medesimo danno ai fini del comma parziaria, cioeÁ ciascun soggetto eÁ
(1)(b) quando non vi sia altro responsabile solo per la parte di
ragionevole fondamento per attribuire responsabilitaÁ che gli eÁ attribuita in
solo una parte del danno a ciascuno o ad base al presente articolo; tuttavia ove
alcuni dei soggetti responsabili verso il la condanna di regresso contro un
danneggiato. A tale scopo eÁ onere di chi danneggiante non possa essere
afferma che il danno non sia il eseguita, la sua quota eÁ riallocata tra i
medesimo di darne la prova. Quando responsabili solidali in proporzione
cioÁ avvenga la responsabilitaÁ eÁ parziaria, della loro responsabilitaÁ.
Art. 10:101. Natura e scopo del risarci- (1) In caso di danno alla persona, che
mento dei danni postula la lesione dell'integritaÁ
psicofisica comportante una malattia
Il risarcimento dei danni consiste nel accertata, il danno patrimoniale
pagamento di una somma di denaro per comprende il lucro cessante, il
rimettere il danneggiato nei limiti in cui deterioramento della capacitaÁ di
il denaro possa, nella posizione che guadagno (anche se non accompagnata
avrebbe occupato se l'illecito non fosse da alcuna perdita di guadagno), e le
stato commesso. Il risarcimento dei spese ragionevoli comprensive delle
danni han anche per scopo la spese mediche.
prevenzione del danno. (2) In caso di morte, persone come i
Art. 10:102. Somma capitale o familiari mantenuti o che sarebbero stati
pagamenti periodici mantenuti del defunto se non si fosse
verificata la morte sono considerati
I danni sono liquidati in somma capitale
come aventi diritto al risarcimento del
o con pagamenti periodici quando cioÂ
danno nei limiti della perdita di tale
appaia piuÁ appropriato con particolare
sostegno.
riguardo all'interesse del danneggiato.
Art. 10:203. Perdita, distruzione e
Art. 10:103. Vantaggi derivati
danno a cose
dall'evento dannoso
Nel determinare l'ammontare dei danni (1) Quando una cosa eÁ perduta,
i vantaggi ottenuti dal danneggiato a distrutta o danneggiata il valore base dei
causa dell'evento dannoso devono danni eÁ il valore della cosa o la
essere presi in considerazione salvo che diminuzione nel suo valore e per tale
cioÁ non sia conciliabile con lo scopo dei scopo eÁ irrilevante che la vittima
vantaggi. intenda ripararla o sostituirla. Tuttavia,
se la vittima la ha sostituita o riparata (o
Art. 10:104. Riparazione in forma intende fare cioÁ), puoÁ ottenere il valore
specifica piuÁ alto se eÁ ragionevole fare cioÁ.
La riparazione in forma specifica puoÁ (2) Danni possono essere risarcite anche
essere richiesta dal danneggiato al posto per la perdita dell'uso della cosa,
dei danni nei limiti in cui sia possibile e comprese le perdite conseguenti come la
non eccessivamente onerosa per l'altra perdita di attivitaÁ professionale.
parte. Sezione 3. Danno non patrimoniale
Sezione 2. Danno patrimoniale Art. 10:301. Danno non patrimoniale
Art. 10:201. Natura e quantificazione
(1) La lesione di un interesse puoÁ
del danno patrimoniale
giustificare il risarcimento del danno
Il danno patrimoniale risarcibile eÁ una non patrimoniale in considerazione
diminuzione del patrimonio del dell'ambito della sua tutela (Articolo
danneggiato causato dall'evento 2:102). In particolare questo eÁ il caso in
dannoso. Tale danno eÁ generalmente cui il danneggiato ha sofferto un danno
determinato in modo il piuÁ concreto alla persona, o una lesione della dignitaÁ
possibile ma puoÁ essere determinato in umana, della libertaÁ, o di altri diritti
astratto ove risulti piuÁ appropriato, per della personalitaÁ. Il danno non patrimo-
!"#$%&$'()
consideradas dano ressarcõÂvel, desde que uma actividade posterior que, por si soÂ,
a realizacËaÄo dessas despesas se revele poderia ter causado o mesmo dano naÄo
razoaÂvel. deve ser tomada em consideracËaÄo.
Art. 2:105. Prova do dano (2) Uma actividade posterior deve,
contudo, ser tomada em consideracËaÄo se
O dano deve ser provado de acordo provocou um dano adicional ou se
com as regras processuais gerais. O agravou o dano inicial.
tribunal pode calcular o dano por
(3) Se a primeira actividade causou um
estimativa quando a prova exacta se
dano contõÂnuo e a actividade posterior
revele demasiado difõÂcil ou onerosa.
teria causado o mesmo dano, ambas
CapõÂtulo 3. Causalidade seraÄo consideradas como causa do dano
SeccËaÄo 1. Conditio sine qua non e contõÂnuo a partir deste segundo
outros encadeamentos causais momento.
Art. 3:101. Conditio sine qua non Art. 3:105. Causalidade parcial incerta
Uma actividade ou conduta (doravante: No caso de existirem vaÂrias actividades,
`actividade') e causa do dano se, na sendo certo que nenhuma delas causou
auseÃncia dessa actividade, este naÄo o dano por inteiro ou uma parte
tivesse ocorrido. determinaÂvel deste, presume-se uma
Art. 3:102. Causas concorrentes contribuicËaÄo em quotas-partes iguais
daquelas actividades que provavelmente
No caso de existirem vaÂrias actividades contribuõÂram, ainda que de forma
e se cada uma delas, por si soÂ, teria mõÂnima, para a ocorreÃncia do dano.
causado o dano simultaneamente, cada
uma delas sera considerada como causa Art. 3:106. Causas incertas no aÃmbito da
do dano. esfera do lesado
(3) Quando houver lugar aÁ reducËaÄo, nos c. uma pessoa responde pelo dano
termos do paraÂgrafo (1) (b), a causado por um auxiliar, sendo este
responsabilidade objectiva e a igualmente responsaÂvel.
responsabilidade de terceiro saÄo (2) No caso de responsabilidade
solidaÂrias, nos termos do artigo 9:101 (1) solidaÂria, o lesado pode demandar pela
(b). totalidade qualquer um ou vaÂrios dos
CapõÂtulo 8. Conduta ou actividade responsaÂveis, desde que naÄo receba um
concorrente montante superior ao total dos danos
sofridos.
Art. 8:101. Conduta ou actividade
(3) O dano e ªo mesmoº para efeitos do
concorrente do lesado
(1) (b) deste artigo, quando naÄo haja um
(1) A responsabilidade pode ser fundamento razoaÂvel para imputar
excluõÂda ou reduzida, tomando em somente parte do dano a cada um ou a
consideracËaÄo a culpa do lesado ou alguns dos responsaÂveis; incumbe
quaisquer outras circunstaÃncias que aÁquele que alega que o dano naÄo e ªo
seriam relevantes para estabelecer ou mesmoº a prova desse facto. Quando
reduzir a responsabilidade do lesado na existir um fundamento razoaÂvel, a
producËaÄo do dano se fosse ele o lesante. responsabilidade e conjunta, isto eÂ, cada
(2) No caso de indemnizacËaÄo por morte um responde apenas pela quota-parte
de uma pessoa, a conduta ou actividade do dano que lhe e imputaÂvel.
desta exclui ou reduz a responsabilidade
de acordo com o disposto no paraÂgrafo Art. 9:102. RelacËaÄo entre os devedores
(1). solidaÂrios
(3) A conduta ou actividade (1) O devedor sujeito a
concorrente de um auxiliar do lesado responsabilidade solidaÂria tem direito
exclui ou reduz o montante da de regresso contra qualquer outra
indemnizacËaÄo a que este tem direito de pessoa que responda face ao lesado pelo
acordo com o disposto no paraÂgrafo (1). mesmo dano. Este direito naÄo prejudica
TõÂtulo V. Pluralidade de ResponsaÂveis qualquer contrato entre os
condevedores estabelecendo a
CapõÂtulo 9. Pluralidade de ResponsaÂveis distribuicËaÄo dos prejuõÂzos, uma
disposicËaÄo legal em contraÂrio, ou
Art. 9:101. Responsabilidade SolidaÂria e
qualquer direito de reembolso com
Conjunta: relacËaÄo entre o lesado e os
fundamento em sub-rogacËaÄo (cessio
vaÂrios responsaÂveis
legis) ou no enriquecimento sem causa.
(1) A responsabilidade e solidaÂria (2) Salvo o disposto no paraÂgrafo (3)
quando todo ou uma parte determinada deste artigo, a prestacËaÄo a que os
do dano sofrido pelo lesado e imputaÂvel condevedores estaÄo adstritos deve
a duas ou mais pessoas. Em particular, a corresponder ao que for considerado
responsabilidade e solidaÂria quando: justo em funcËaÄo da contribuicËaÄo de cada
a. uma pessoa participa consciente- um para os danos, tendo em conta a
mente ou instiga ou encoraja gravidade das culpas e outras
comportamentos ilõÂcitos de terceiros que circunstaÃncias que sejam consideradas
causam danos ao lesado; ou relevantes para estabelecer ou reduzir a
b. o comportamento ou actividade sua responsabilidade. Esta prestacËaÄo
independente de uma pessoa causa pode corresponder ao montante total da
dano ao lesado e o mesmo dano e indemnizacËaÄo. Se naÄo for possõÂvel
tambeÂm imputaÂvel a outra pessoa; determinar a responsabilidade relativa
279
The Principles of European Tort Law Series
Volume 1: The Limits of Liability: Keeping the Floodgates Shut. Edited by
Jaap Spier. Kluwer Law International, The Hague. ISBN 90-411-0169-1.
1996, 162 pp.
Volume 2: The Limits of Expanding Liability. Eight Fundamental Cases in a
Comparative Perspective. Edited by Jaap Spier. Kluwer Law International,
The Hague. ISBN 90-411-0581-6. 1998, 244 pp.
Volume 3: Unification of Tort Law: Wrongfulness. Edited by Helmut
Koziol. Kluwer Law International, The Hague. ISBN 90-411-1019-4. 1998,
144 pp.
Volume 4: Unification of Tort Law: Causation. Edited by Jaap Spier.
Kluwer Law International, The Hague. ISBN 90-411-1325-8. 2000, 161 pp.
Volume 5: Unification of Tort Law: Damages. Edited by Ulrich Magnus.
Kluwer Law International, The Hague. ISBN 90-411-1481-5. 2001, 255 pp.
Volume 6: Unification of Tort Law: Strict Liability. Edited by Bernhard A.
Koch and Helmut Koziol. Kluwer Law International, The Hague. ISBN
90-411-1705-9. 2002, 444 pp.
Volume 7: Unification of Tort Law: Liability for Damage Caused by Others
Edited by Jaap Spier. Kluwer Law International, The Hague. ISBN 90-411-
2185-4. 2003, 335 pp.
Volume 8: Unification of Tort Law: Contributory Negligence. Edited by
Ulrich Magnus and Miquel MartõÂn-Casals. Kluwer Law International, The
Hague. ISBN 90-411-2220-6. 2004, 300 pp.
Volume 9: Unification of Tort Law: Multiple Tortfeasors. Edited by W.V.
Horton Rogers. Kluwer Law International, The Hague. ISBN 90-411-
2319-9. 2004, 313 pp.
Volume 10: Unification of Tort Law: Fault. Edited by Pierre Widmer.
Kluwer Law International, The Hague. ISBN 90-411-2098-X. Forthcoming
2005.
280
The Tort and Insurance Law Series
Volume 1: Cases on Medical Malpractice in a Comparative Perspective. Edi-
ted by Michael Faure and Helmut Koziol. Springer, Vienna/New York.
ISBN 3-211-83595-4. 2001, 331 pp.
Volume 2: Damages for Non-Pecuniary Loss in a Comparative Perspective.
Edited by W.V. Horton Rogers. Springer, Vienna/New York. ISBN 3-211-
83602-0. 2001, 318 pp.
Volume 3: The Impact of Social Security on Tort Law. Edited by Ulrich
Magnus. Springer, Vienna/New York. ISBN 3-211-83795-7. 2003, 312 pp.
Volume 4: Compensation for Personal Injury in a Comparative Perspective.
Edited by Bernhard A. Koch and Helmut Koziol. Springer, Vienna/New
York. ISBN 3-211-83791-4. 2003, 501 pp.
Volume 5: Deterrence, Insurability and Compensation in Environmental
Liability. Future Developments in the European Union. Edited by Michael
Faure. Springer, Vienna/New York. ISBN 3-211-83863-5. 2003, 405 pp.
Volume 6: Der Ersatz frustrierter Aufwendungen. VermoÈgens- und Nicht-
vermoÈgensschaden im oÈsterreichischen und deutschen Recht. By Thomas
Schobel. Springer, Vienna/New York. ISBN 3-211-83877-5. 2003, 342 pp.
Volume 7: Liability for and Insurability of Biomedical Research with
Human Subjects in a Comparative Perspective. Edited by Jos Dute, Michael
G. Faure and Helmut Koziol. Springer, Vienna/New York. ISBN 3-211-
20098-3. 2004, 445 pp.
Volume 9: Pure Economic Loss. Edited by Willem H. van Boom, Helmut
Koziol and Christian Witting. Springer, Vienna/New York. ISBN 3-211-
00514-5. 2003, 214 pp.
Volume 10: Liber Amicorum Pierre Widmer. Edited by Helmut Koziol and
Jaap Spier. Springer, Vienna/New York. ISBN 3-211-00522-6. 2003, 376 pp.
Volume 11: Terrorism, Tort Law and Insurance. A Comparative Survey.
Edited by Bernhard A. Koch. Springer, Vienna/New York. ISBN 3-211-
01867-0. 2004, 313 pp.
Volume 12: AbschlusspruÈfer. Haftung und Versicherung. Edited by Helmut
Koziol and Walter Doralt. Springer, Vienna/New York. ISBN 3-211-20800-
3. 2004, 180 pp.
281
Volume 13: PersoÈnlichkeitsschutz gegenuÈber Massenmedien / The Protec-
tion of Personality Rights against Invasions by Mass Media. Edited by Hel-
mut Koziol and Alexander Warzilek. Springer, Vienna/New York. ISBN
3-211-23835-2. 2005. Approx. 700 pp.
Volume 14: Financial Compensation for Victims of Catastrophes. Edited by
Michael Faure and Ton Hartlief. Springer, Vienna/New York. ISBN 3-211-
24481-6. 2005. Approx. 400 pp.
Volume 15: Children in Tort Law. Part I: Children as Tortfeasors. Edited by
Miquel MartõÂn-Casals. 3-211-24480-8. 2005. Approx. 600 pp.
Volume 16: Liability in Tort and Liability Insurance. Edited by Gerhard
Wagner. 3-211-24482-4. 2005. Approx. 400 pp.
282