6.2.2 The Grounds for Tort Liability
What are the grounds if a tortfeasor (a person who has committed a tort) has to pay
for the victim’s damage? The answer to this question traditionally mentions three
categories of cases:
- cases in which a tortfeasor acted wrongfully and has to compensate for the
damage that resulted from his wrongful behavior (liability for one’s own fault); - cases in which someone is liable for the damage that was wrongfully caused by a
tortfeasor (liability for a tortfeasor’s fault); - cases in which a tortfeasor is liable for the damage caused by an animal or by an
object for which he is responsible (strict liability).
This division of cases of liability into three categories suggests more of an order
than there actually is. The three categories define so-called ideal types, typical
situations on which variations are possible. The variations on grounds of liability
mean that the three mentioned categories fade into each other.
6.2.3 Fault Liability and Strict Liability
One important distinction in most contemporary tort law systems is between
liability based on fault and strict liability.
6.2.3.1 Fault Liability
In the nineteenth century, tort law was mostly based on the idea of fault. A fault is,
in this connection:
- a wrongful act
- for which the agent can be blamed.
In Germany, legal scholars like Von Jhering thought that the principle of “no
liability without fault” was unquestionable: “Nicht der Schaden sondern die Schuld
verpflichtet zum Schadenersatz.” (It is not the damage which obligates compensa-
tion, but the fault.)
6.2.3.2 Movement Towards Strict Liability
In the twentieth and twenty-first centuries, we see a tendency towards a more severe
and stricter liability regime. This is frequently pithily summed up as a development
away from liability based on fault towards strict liability. In other words, human
fault no longer forms the point of departure, as was still the case in the first half of
the twentieth century, but the question whether the sustained damage falls within
the injured party’s own sphere of risk or within that of someone else.
However, before adopting this view that there is a movement from fault liability
towards strict liability, it is important to bear in mind that “fault” and “risk” (risk is
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