Principles of European Tort Law
A Critical Examination
Ken Oliphant (Cardiff Law School)
BIICL, 23 November 2005
1. Why Principles of European Tort Law?
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Full harmonisation (a European Civil Code)

Other “hard” harmonisation

“Soft” harmonisation

Development of a distinct EC Tort Law

An exercise in comparative law
2. Structure of the Principles
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The Basic Norm
The Three Bases of Liability
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The Other General Conditions of Liability
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Fault
Abnormally dangerous activities (strict liability)
Auxiliaries (vicarious liability)
Damage
Causation
Defences, remedies, etc.
Cf. Structure of Study Group’s draft
“A person who suffers legally relevant
damage has a right to reparation from
a person who caused the damage
either intentionally or negligently or is
otherwise accountable for the
causation of the damage.”
Comparison with Other Codes:
(i) Three-part structure

The Principles

French Civil Code

Fault

Fault (art. 1382)

Abnormally dangerous
activities

Liability for things (art.
1384)

Auxiliaries

Liability for others (art.
1384)
Comparison with Other Codes:
(ii) Protected interests

French law of delict

No specification of
protected interests

BGB § 823 (1)

List of protected
interests: covered/not

The Principles

A hierarchy of protected
interests, with varying
protection
3. The Flexible System

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“Protection of pure economic interests… may
[or may not] be more limited in scope.”
“an interest may [or may not] receive more
extensive protection against intentional harm
than in other cases…”
“The required standard of conduct… may [or
may not] be adjusted when due to age…
[etc.] the person cannot be expected to
conform to it.”
4. Specific principles
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Negligence
Intentional harm
Strict liability (abnormally dangerous
activities)
Vicarious liability (auxiliaries)
Causation (inc. proportionate liability)
Defences acting to reduce liability
The general reduction clause
5. Concluding Thoughts: A Common
Lawyer’s Perspective

The value of the enterprise
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Opening the door to the civilian law of tort
(cf. Fairchild)
A common and neutral framework to make sense
of other legal systems
The value of these principles
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“The best” selected ahead of “the rest”
Reflecting accumulated practical experience
Specific proposals an aid to the further
development of the common law