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

Liability across Jurisdictions: A cross-border assessment

In the following paper I am going to analyze the two main tort liability regimes: fault liability and strict liability. In the ascertainment of both regimes I am going to take a look upon the development of both systems and relevant cases will be taken into consideration.

Foundation and Development of Strict Liability in Continental Europe

The aim of the present paper is to discuss the origins and the development of strict liability, one of the standards used in order to assess liability deriving from torts (namely, liability stemming from the causation of damages to third parties due to a subject’s conduct) and object of much debate. After looking at both its philosophical and economic foundation, attention will be paid to the main peculiarities characterizing the relevant discipline in some jurisdictions of Continental Europe, deemed to share part of the dynamics underlying the development of the discussed criterion for assessing tort liability, and precisely France, Spain, Italy and Germany. In light of the evidence thus gathered, it will be concluded that, notwithstanding the controversial nature of such standard, strict liability may be said to be an instrument that aspires both at encouraging efficiency and at achieving a shareable balance of the interests and values involved, hence responding to the evolution of society, in terms of progress and modifications of priorities and needs.

3. Strict Liability versus Negligence

1987

The purpose of this chapter is to compare negligence rules and strict liability rules and to examine the allocative effects resulting from the application of different liability regimes. It first discusses unilateral accidents, while the more complicated bilateral cases follow afterwards. Each section starts with a discussion of the rule of no liability before moving on to various forms of negligence and ending with various strict liability rules. At the end of each section, there is a discussion on how results change when relaxing specific assumptions. The various aspects are summarised focusing on the question of whether the outcome under a specific liability regime is efficient or not. We also discuss several more specific topics of interest, for example, the information generating consequence of negligence, the allocative effects of various liability rules when agents enter into a contractual relationship, product liability, cases of 'joint liability', the impact of uncertain legal standards, and the interaction between liability law and insurance.

The Equivalence of Strict Liability and Negligence Rule: A « Trompe l'œil » Perspective

2012

This paper analyzes the difficulties of comparing the respective effectiveness of two among the most important liability regimes in tort law: rule of negligence and strict liability. Starting from the standard Shavellian unilateral accident scheme, I show that matching up liability regime on their capacity to provide the highest level of safety is ineffective. This demonstration lies on two components. The first one gathers some results drawn from literature that introduces uncertainty. The second one takes into consideration the beliefs of agents and their aversion to ambiguity. The model applies uncertainty to the level of maximum damage. This demonstration reinforces the previous result. Hence, both regimes apply on specific tort question and comparing their individual efficiency needs to call for other components as the transaction costs associated to the burden of evidence, the fairness between victims and injurers, etc.

Strict Liability in Contemporary European Codification: Torn between Objects, Activities, and Their Risks

Many national legislative frameworks in Europe limit the scope of strict liability to the specific sources of danger listed by statute. This in itself causes disparate treatment of seemingly similar dangers, since legislatively mandated instances cover some inherently dangerous situations but not others. Hence, European scholars call for the introduction of a "general clause" in the area of strict liability. A balance is sought between two opposites: restricting the application of statutory sources of strict liability on the one hand, and allowing unrestricted judicial policymaking to shape strict liability by referring to a "general clause" on the other hand. This Article aims to determine an adequate balance, taking into account fundamental prerequisites such as legal certainty, foreseeability (and therefore insurability), and equal treatment of equal sources of danger. It also addresses the scope of application of such rules. Should they be limited to the pursuit of abnormally dangerous activities, as many drafts propose, or to the control of abnormally hazardous objects? This Article argues that an ideal solution would be based on a legal standard that takes "object" rather than "activity" as the central criterion.

G. Alpa - General Remarks on Civil Liability in the European Context

This article considers the evolution of the civil liability system in Europe from the perspective of the establishment and application of rules deriving from regulations and directives that define special types of torts. Neither the EU rules nor the principles developed by the Court of Justice always identify all the necessary components of the tortious act. There are cases in which certain elements are prescribed, and others which are left to the national courts to establish. Furthermore, there are instances in which the case configured by the EU rules is complete but where the national legislators are accorded a certain leeway to fill in the regulatory gaps. National rules are not always uniform and, thus, are not without ambiguity. For this reason, attempts have been made to standardise the governance of civil liability, and the models proposed to break the impasse are still relevant. But time moves on, and the standardisation process is lagging behind the ever-increasing pace of change in EU law.

3100 Strict Liability versus Negligence 623

2000

The purpose of this chapter is to compare negligence rules and strict liability rules and to examine the allocative effects resulting from the application of different liability regimes. It first discusses unilateral accidents, while the more complicated bilateral cases follow afterwards. Each section starts with a discussion of the rule of no liability before moving on to various forms of negligence and ending with various strict liability rules. At the end of each section, there is a discussion on how results change when relaxing specific assumptions. The various aspects are summarised focusing on the question of whether the outcome under a specific liability regime is efficient or not. We also discuss a few more specific topics of interest, for example, the allocative effects of various liability rules when agents enter into a contractual relationship, cases of ‘joint liability’, the impact of uncertain legal standards, and the interaction between liability law and insurance. JEL...

Liability for Unknown Risks: A Common Law Perspective

Journal of European Tort Law, 2016

In this article, I address the issue of liability for unknown risks from a Common Law perspective. My observations are made principally with English law in mind, but there is also reference to the (mixed) legal system of Scotland as well as to US Common Law (in relation to product liability). In order to set the scene, and in particular to explain the concept of unknown risks, some recitation of basic tort law principles is desirable.