- Why should the damage that a victim suffered under certain circumstances be
shifted to a different person at all? - What are the conditions under which a victim’s damage must be compensated by
another person? - If damage is to be compensated, which damage qualifies for compensation?
These three questions will be answered in Sects.6.2,6.3–6.6, and6.7, respec-
tively. But first, two preliminary issues need to be dealt with.
6.1.1 Contract Law and Penal Law
Tort law must be distinguished from both contract law and criminal law. Unlike
contract law, tort law deals with situations where there is no preexisting contractual
relationship. If such a contractual relationship does exist, compensation of damage
is usually dealt with by the law of contract.
Moreover, unlike criminal law, tort law does not aim at punishing wrongful
behavior, but seeks for ways to compensate the damage that is often caused by
wrongful acts. So tort law differs from criminal law in that it does not focus on
punishment but on the compensation of damage, and it differs from contract law in
that it does not deal with the damage that results from the nonperformance of contracts.
6.1.2 Tort and Torts
The expression “tort law” suggests that tort law is a homogeneous field of law, with a
few rules that regulate compensation for all kinds of damage. To some extent, this
suggestion is correct, but not completely.Tort lawcan be appliedto very heterogeneous
topics, such as bodily harm, manslaughter, insult, libel, infringement of privacy,
trespass on one’s property or into one’s home, damage to one’s goods, violation of
copyright, unlawful competition, collapsing buildings, unhealthy food, and so on. What
all these situations have in common is that an event caused damage to a victim and that
there may be reason to let someone else compensate this damage. For the rest, however,
there seems to be little similarity concerning the above-mentioned situations.
Law of Torts It would therefore be quite possible to develop rules for each of
them, and these rules could be fine-tuned to the various cases and the differences
between them. Actually, this is what happened in common law. It has developed
rules for several kinds of torts. For this reason, the rules about the different
situations were originally called thelaw of torts(plural).
Negligence However, with theDonoghue v. Stevensoncase, a development has
started in common law in which one particular tort, the tort of negligence, has come
to dominate an important part of the field. Negligence as a tort is assumed if
someone breached a legal duty to take care towards other persons and their interests
and this breach resulted in damage to someone towards whom care was due. This
102 G.E. van Maanen and J. Hage