Breach of Duty The basic idea is that a balance must be struck between the costs
of precautionary measures and the costs of accidents. The costs of accidents are the
product of the costs of a “normal” accident and the probability that such an accident
will occur. If the costs of a precautionary measure are less than the expected costs of
the accident, this precautionary measure is required and a breach of duty exists if
such a measure is not taken.
Learned Hand formula Judge Learned Hand has become a legend because he did
not confine himself to this clear analysis of what lawyers generally do—intui-
tively—when answering liability questions but rather because he went further and
gave it a “scientific” twist by summarizing it in the economic formula: “if the
probability be called P;the injury L;and the burden B;liability depends upon
whether B is less likely than L multiplied by P:i.e. whether B is less than PL.” This
formula has become known as the “Learned Hand formula.”
6.4 Liability for One’s Own Fault: The Civil Law Approach
The civil law approach to torts differs from the common law approach in that the
basic rules for tort liability are formulated in statutes and that these rules appear to
be relatively uniform. However, because statutory rules are complemented by case
law, the actual situation is not so very different from that of the common law. In
general, the following conditions hold for the existence of fault liability in the civil
law tradition:
- there must be an act or an omission that unlawfully violated a legally protected
interest; - the unlawful act or omission must have caused damage of a type that qualifies for
compensation.
In theory there is still a third requirement for fault liability, namely that the tortfeasor is
blameworthy. That would, for instance, not be the case with people who acted under the
influence of a physical or mental handicap. The practical relevance of this third requirement
is rather limited, though, because blameworthiness is usually assumed if the behavior did
not match the standards which a reasonable person would apply.
6.4.1 Unlawfulness
The various civil law jurisdictions differ in the manner in which they specify what
counts as an unlawful violation of a legally protected interest. The FrenchCode
Civilkeeps it simple, with two provisions:
108 G.E. van Maanen and J. Hage