development has changed the “law of torts” into “tort law,” but the field of tort law
still exhibits the traces of the old situation in which there were separate rules for the
different torts.
Does this mean that tort law in the common law tradition is very different from
that in the civil law tradition? Not really. In the common law tradition, there are, as
a starting point, different kinds of torts, but the doctrine of negligence has now
created a tendency to treat these different kinds of torts more similarly.
Civil Law In the civil law tradition, there are not as many kinds of torts as far as
legislation is concerned. However, theapplicationof the relatively few rules has
been differentiated between different kinds of wrongful acts by means of judicial
decisions in which the relatively uniform tort law has been interpreted.
For instance, in the case of wilful causation of damage such as physical mistreatment,
liability is more easily assumed than in case of an accident. The liability for inherently
dangerous activities tends also to be greater than for events which cause damage by way of
coincidence. These distinctions could not be found originally in legislation, but were based
on case law. However, relatively recently, some of these developments from case law have
been codified. We return to this point in Sect.6.7.
Since the relatively uniform rules have been interpreted differently for different
kinds of wrongful acts, the case law in the civil law tradition created a greater
differentiation than appears to be the case on the basis of legislation only. The result
is thatthe difference between the civil law and the common law tradition is mainly
one of style.
6.2 The Functions of Tort Law and the Grounds of Tort
Liability
6.2.1 Functions of Tort Law
The rules of tort law can, to some extent, be explained by the fact that tort law
fulfills several functions, which sometimes overlap. These functions include
- the realization of compensatory justice,
- the realization of a distribution of damage over society that is both fair and
efficient, - the granting of compensation to people for damage caused by someone else,
- the prevention of damage.
6.2.1.1 Fault Liability
If one person does something wrong and thereby causes damage to another person,
compensatory justice(also called “retributive justice”) requires that the wrongdoer
compensates the damage. This kind of compensation makes sense only when the
person who caused the damage was at fault (did something wrong for which he can
be blamed), and therefore this kind of liability is called “fault liability.”
6 Tort Law 103