Basic Questions of Tort Law

The study "The Basic Questions of Tort Law" is based on the German, Austrian and Swiss legal systems, but in addition frequent comparative references are made to other jurisdictions as well as to the Principles of European Tort Law. It begins with a sweeping introduction of the law of tort, which dates far back, and in so doing recalls its basic ideas, develops these further, calls into question familiar argumentations, stimulates the reconsideration of seemingly watertight considerations which were thought convincing at one point and strives to make conscious associations between these. Accordingly, attention is paid to the old, reasonable, but nowadays neglected principle that everyone must bear the losses he suffers himself (casum sentit dominus). Further the fundamental question of whether tortuous liability should be replaced by insurance is discussed. The analysis of the - especially German - tendency of drawing strict borderlines and rigid provisions in comparison to the advantages of accepting no clear cut dividing lines and flexible rules is an essential consideration. One of the pivotal goals of this study is to approach tort law`s position from the perspective of the overall body of systems designed for the protection of legal interests in combination with an attempt to carve out more sharply the fundamental ideas and the functions of each of these other remedies; the blurred boundaries between tort law and its neighbouring fields are thus identified, deliberated upon and necessary improvements advanced. Discussed are, for example, the relationship between claims for compensation based on tort law on the one hand and injunctions and unjust enrichment claims on the other. In addition recognised intermediate areas e.g. "punitive damages" which sit on the borderline between criminal law and private law and the difficulties these pose are considered; so too is the allocation of tasks between tort law and social security law. The insights gained from all these discussions are then called upon in elaborating the functions of tort law. Apart from the compensatory function, the preventive function and the sanctionative function regard is had to the increasingly emphasised economic function of tort law. As to the latter idea, its problematic starting point and its irreconcilability with Continental concepts of tortuous liability are examined. The study does not end with such general considerations but it attempts to utilise the findings in discussing more general or concrete questions. Nevertheless, it does not strive to give an overall description of tort law; rather the emphasis is on particularly contentious issues and new approaches to solving problems. Therefore, not only is the relationship between the violation of a contract and a delict examined, but also the basic requirements of a claim for damages - damage and causation - are analysed. An extensive chapter is devoted to the conditions for attributing damage and establishing liability. Apart from wrongfulness and fault other shortcomings in the sphere of the defendant, the financial situation of the parties, the notion of insurability of the risk by a wider community are explored as well as modern tends in accepting special enterprise liability. Great importance is attached to working out the interplay of all these elements given its relevance for the entire system of establishing liability. The question of attribution of damage - or a part thereof - to the victim, i.e. in the case of contributory negligence, is re- visited by taking regard of the basic ideas, following which an approach differing from prevailing ones is recommended. After discussing the limitations of liability, in particular through the notions of adequacy and the protective purpose of the rule, the extent of compensation and the reduction of damages, in light of the weight of the factors for establishing liability and the financial situation of the parties, are at stake. The closing chapter is dedicated to limitation periods. The rules in the three relevant legal systems differ to a great extent; an attempt is made to identify the considerations which may be relevant value judgements and thus indispensible for a reasonable solution to the problem.