The Boundaries of Strict Liability in European Tort Law (original) (raw)

For the transnational lawyer the present European situation is equivalent to that of a traveler compelled to cross legal Europe using a number of different local maps. To assist lawyers in the journey beyond their own locality the Common Core project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger. The aim of this collective enterprise is to unearth what is already common to the legal systems of European Union member states. Case studies widely circulated and discussed between lawyers of different traditions are employed to draw at least the main lines of a reliable map of the law of Europe. Contents About the editors xix Relevant statutory and codified provisions xxi Table of abbreviations xlv Part I • Background 1 Strict liability in European tort law: an introduction 3 I. Features and justifications of strict liability rules 5 A. Strict liability versus liability for fault 5 1. Points of contact between strict liability and fault liability 5 2. Defining strict liability through delimitation from liability for fault 7 a. The standard of care in negligence law 8 b. Strict liability as a negative notion 9 c. Strict liability as a positive notion i. An inelastic concept of liability ii. A preference for factual tests of causation iii. A narrow definition of available defenses B. Controversies about the role of strict liability rules 1. Strict liability and the defendant's sphere of freedom 2. Internalising the cost of accidents through strict liability 3. Strict liability as a means of creating reciprocity of risks a. The concept of ultra-hazardous risks b. Strict liability as a requirement of commutative justice c. The vagueness of the concept of ultra-hazardous risks 4. The concept of respondeat superior a. Liability for the tort of another b. The creation of enterprise liability C. Alternative compensation schemes and the role of private insurance 1. The discussion about no-fault compensation schemes 2. The impact on tort compensation in Europe 3. Consequences for the parties' conduct II. Sources of strict liability in Europe A. German, Austrian and Greek law B. Spanish, Portuguese and Italian law C. French law vii D. English and Scots law E. Scandinavian systems and Dutch law F. The importance of harmonised law 1. Legislative measures 2. Judicial harmonisation of tort law 2 Strict liability versus negligence: an economic analysis 1. Introduction 2. Unilateral accidents 3. Rule of no liability 4. Negligence 5. Relaxing assumptions 6. Strict liability 7. Relaxing assumptions 8. Bilateral accidents 9. The 'cheapest cost avoider' 10. Rule of no liability 11. Negligence Simple negligence Negligence with the defense of contributory negligence Comparative negligence rule 12. Strict liability Simple strict liability Strict division of losses Strict liability with the defense of contributory negligence Strict liability with the defence of relative negligence 13. Relaxing assumptions 14. Comparing strict liability and negligence 15. Strict liability under the disguise of negligence and negligence under the disguise of strict liability in product liability 16. Liability caps in strict liability regimes 17. Multiple tortfeasors 18. Risk aversion, liability law and insurance 19. Liability and uncertain legal standards Literature Other References Cases viii contents Part II • The comparative evidence: case responses and editors' comparative remarks 3 The case studies 69 I. Methods and objectives of this project 69 A. Some remarks on the history and methodology 69 B.