Contract and tort law
Private law is mainly national law
- predominantly national law
- exceptions are treaties
- two big families in private law
o civil law
origins in Central Europe
o common law
has origins in England
Restatements – when law differs, they are used
What is tort?
- tort in French means wrong
- key question in tort law: you have caused damage for somebody, do you have to pay
compensation?
- are you liable?
- there is a big dividing line between intentionally caused damages and not intentionally
caused ones
- examples:
- injury caused by traffic accident
- injury caused by faulty products
- injury caused by physical abuse, stalking
- economic loss caused by unfair competition, patent infringement
- violation to privacy, injury to reputation
- nuisance
- crimes, human rights violation
- type of loss:
- just financial
expenses – out of pocket losses
lost profits
- personal loss – like pain or suffering (also compensable)
- violation of privacy (nuisance/’annoying’, but not pain and not financial loss)
Two categories
1. Intentional torts
a. for example: crimes
2. Negligence (carelessness) (art.VI.-3:102)
a. violation of statutory law (for example: speeding)
i. in principle people are liable for this
ii. causality (question of causality)
1
, b. unwritten rules of social conduct
i. Article VI.-3102 (b) DCFR
ii. Conduct which does not amount to such care as could be expected from
a reasonably careful person in the circumstances of the case
iii. court decisions (case law)
What is negligent?
- What level of care is required?
- Germany: Reichsgericht 23 February 1903
- On an evening in 1901, the plaintiff fell on steps of municipality open to public
use
- Steps were slippery because of snow. Also, they were in a very neglected state
and unlit.
- Is the municipality liable?
yes, because
owner has control over the state and quality of the steps
steps are open to public
counter arguments can be made, which can lead to the reduction of the
compensation given/awarded
here: liability of the state
- Lettuce leaf (OLG Hamm 1981)
- plaintiff fell in shop because he slipped on a lettuce leaf
- is the shopkeeper liable?
the shop must prove that the leaf was only there for a shorter period of
time
customer must take care especially in the vegetable and fruit
department
shop liable, but 1/3 reduction because of the contributory negligence
of victim
- it can be argued, that the shopkeeper is liable on the basis of contract law as
well --› customer has entered into contract with the shop once they step inside
- but it’s a tort case as well
- weighing factors:
- nature and extent of potential loss (purely financial, physical injury) = L
- probability of loss = P
- costs of preventive measures = C
- Negligence is when L x P › C
L – could fall (physical injury)
P – likely
C – not expensive
Negligence: liability for intentional tort of somebody else
- if somebody else commits a crime (or causes damages) intentionally can you be held
liable?
2
,Negligent or not?
- What level of care is required?
- France: L’Olympique v. Fuster, Cour d’appel de Lyon 16 December 1988, JCP
1990.II.21510
- 21-year old Serge Fuster dies during a football match when a hooligan causes
an explosion
- His parents, brothers and sisters claim compensation from organizer of the
game, the football club
- Is the football club liable?
case of emotional loss
Organizer of a sporting event is under a duty to take adequate security
measures
There were 33.000 spectators
There were strong indications of violent incidents
No inspection to prevent spectators from carrying objects which could
cause injury
Supporters of both teams were not seated at safe distance from each
other
Conclusion: football club is liable
- Smith v. Littlewoods Organisation Ltd (1987)
- Vandals make fire on premises (old movie theatre) of Littlewoods
- Fire causes damage to neighbor Smith
- Is Littlewoods liable to Smith because he failed to take preventive measures?
- Court:
- No liability for pure omissions
- Special circumstances are required, where the defendant negligently permits or
creates a source of danger
- Topp v. London Country Bus (South West) Ltd. [1993] 1 WLR 976, Court of Appeal
- Defendant’s minibus was left overnight near a pub, unlocked & with keys left
in ignition
- The driver who was expected to pick it up did not show up for his shift
- Thieves stole the bus, knocked a woman off her bike, she subsequently died
- Husband brought action for damages against bus company
- Is bus company liable?
no, because it’s a
- Osman v. Ferguson (1993)
- 15 year old Ahmet Osman is harassed by teacher Paul Paget-Lewis (PPL)
- Despite several incidents PPL is not arrested
- He kills the father of Ahmet and wounds him
- Ahmet + his mother sue the police force for not doing anything
- Court of Appeal: police can rely on immunity
- ECtHR: violation art. 6 ECHR (access to justice)
says that immunity should never be absolute
court shall always look if it is appropriate to apply immunity
and court did not do it
3
, Duty of care
- common law
- ‘to limit liability’
- Is there a duty of care?
- do you need to take the possibility into account?
- do you need to take somebody’s interest into account?
- Example: When I am driving do I owe a duty of care to people who do not drive on
the road?
- Donoghue v. Stevenson case
- did the Manufacturer owe a duty of care towards Donoghue?
- test to establish duty of care:
- Lord Atkin – neighbour principle:
The rule that you are to love your neighbour becomes in law: ‘You
must not injure your neighbour, and the lawyer’s question: Who is my
neighbour? receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbour’
- Caparo v Dickman case
- Accountant Dickman audited Fidelity and stated that F had made a profit of
1,300,000 pounds
- Based on this C bought 100,000 shares in F
- Very bad bargain because F had made a loss of 400,000 pounds
- Did accountant Dickman have a duty of care towards investor C?
- Lord Bridge:
“in addition to foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there should exist between
the party owning the duty and the party to whom it is owned a
relationship characterized by the law a one of ‘proximity’ or
‘neighbourhood’ and that the situation should one in which the court
considers it fair, just and reasonable that the law should impose a
duty (…).”
three elements:
foreseeability of damage
relationship/proximity: for example, there was a contract
between them, or the one who owes the duty of care should
know that they will rely on his work ect.
fair, just and reasonable to impose
- in this case there is no duty of care
- Hedley Byrne v Heller
- HB are advertisement agents
- Customer Easipower put in large orde
- HB asked their bank to get info about creditworthiness from bank of
Easipower, Heller
- Heller stated that E was “considered good for its ordinary business
engagements”
- E went bankrupt and HB lost 17,000 pounds
- Is H liable to HB?
Here the court held Heller liable for incorrect statement;
4
Private law is mainly national law
- predominantly national law
- exceptions are treaties
- two big families in private law
o civil law
origins in Central Europe
o common law
has origins in England
Restatements – when law differs, they are used
What is tort?
- tort in French means wrong
- key question in tort law: you have caused damage for somebody, do you have to pay
compensation?
- are you liable?
- there is a big dividing line between intentionally caused damages and not intentionally
caused ones
- examples:
- injury caused by traffic accident
- injury caused by faulty products
- injury caused by physical abuse, stalking
- economic loss caused by unfair competition, patent infringement
- violation to privacy, injury to reputation
- nuisance
- crimes, human rights violation
- type of loss:
- just financial
expenses – out of pocket losses
lost profits
- personal loss – like pain or suffering (also compensable)
- violation of privacy (nuisance/’annoying’, but not pain and not financial loss)
Two categories
1. Intentional torts
a. for example: crimes
2. Negligence (carelessness) (art.VI.-3:102)
a. violation of statutory law (for example: speeding)
i. in principle people are liable for this
ii. causality (question of causality)
1
, b. unwritten rules of social conduct
i. Article VI.-3102 (b) DCFR
ii. Conduct which does not amount to such care as could be expected from
a reasonably careful person in the circumstances of the case
iii. court decisions (case law)
What is negligent?
- What level of care is required?
- Germany: Reichsgericht 23 February 1903
- On an evening in 1901, the plaintiff fell on steps of municipality open to public
use
- Steps were slippery because of snow. Also, they were in a very neglected state
and unlit.
- Is the municipality liable?
yes, because
owner has control over the state and quality of the steps
steps are open to public
counter arguments can be made, which can lead to the reduction of the
compensation given/awarded
here: liability of the state
- Lettuce leaf (OLG Hamm 1981)
- plaintiff fell in shop because he slipped on a lettuce leaf
- is the shopkeeper liable?
the shop must prove that the leaf was only there for a shorter period of
time
customer must take care especially in the vegetable and fruit
department
shop liable, but 1/3 reduction because of the contributory negligence
of victim
- it can be argued, that the shopkeeper is liable on the basis of contract law as
well --› customer has entered into contract with the shop once they step inside
- but it’s a tort case as well
- weighing factors:
- nature and extent of potential loss (purely financial, physical injury) = L
- probability of loss = P
- costs of preventive measures = C
- Negligence is when L x P › C
L – could fall (physical injury)
P – likely
C – not expensive
Negligence: liability for intentional tort of somebody else
- if somebody else commits a crime (or causes damages) intentionally can you be held
liable?
2
,Negligent or not?
- What level of care is required?
- France: L’Olympique v. Fuster, Cour d’appel de Lyon 16 December 1988, JCP
1990.II.21510
- 21-year old Serge Fuster dies during a football match when a hooligan causes
an explosion
- His parents, brothers and sisters claim compensation from organizer of the
game, the football club
- Is the football club liable?
case of emotional loss
Organizer of a sporting event is under a duty to take adequate security
measures
There were 33.000 spectators
There were strong indications of violent incidents
No inspection to prevent spectators from carrying objects which could
cause injury
Supporters of both teams were not seated at safe distance from each
other
Conclusion: football club is liable
- Smith v. Littlewoods Organisation Ltd (1987)
- Vandals make fire on premises (old movie theatre) of Littlewoods
- Fire causes damage to neighbor Smith
- Is Littlewoods liable to Smith because he failed to take preventive measures?
- Court:
- No liability for pure omissions
- Special circumstances are required, where the defendant negligently permits or
creates a source of danger
- Topp v. London Country Bus (South West) Ltd. [1993] 1 WLR 976, Court of Appeal
- Defendant’s minibus was left overnight near a pub, unlocked & with keys left
in ignition
- The driver who was expected to pick it up did not show up for his shift
- Thieves stole the bus, knocked a woman off her bike, she subsequently died
- Husband brought action for damages against bus company
- Is bus company liable?
no, because it’s a
- Osman v. Ferguson (1993)
- 15 year old Ahmet Osman is harassed by teacher Paul Paget-Lewis (PPL)
- Despite several incidents PPL is not arrested
- He kills the father of Ahmet and wounds him
- Ahmet + his mother sue the police force for not doing anything
- Court of Appeal: police can rely on immunity
- ECtHR: violation art. 6 ECHR (access to justice)
says that immunity should never be absolute
court shall always look if it is appropriate to apply immunity
and court did not do it
3
, Duty of care
- common law
- ‘to limit liability’
- Is there a duty of care?
- do you need to take the possibility into account?
- do you need to take somebody’s interest into account?
- Example: When I am driving do I owe a duty of care to people who do not drive on
the road?
- Donoghue v. Stevenson case
- did the Manufacturer owe a duty of care towards Donoghue?
- test to establish duty of care:
- Lord Atkin – neighbour principle:
The rule that you are to love your neighbour becomes in law: ‘You
must not injure your neighbour, and the lawyer’s question: Who is my
neighbour? receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbour’
- Caparo v Dickman case
- Accountant Dickman audited Fidelity and stated that F had made a profit of
1,300,000 pounds
- Based on this C bought 100,000 shares in F
- Very bad bargain because F had made a loss of 400,000 pounds
- Did accountant Dickman have a duty of care towards investor C?
- Lord Bridge:
“in addition to foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there should exist between
the party owning the duty and the party to whom it is owned a
relationship characterized by the law a one of ‘proximity’ or
‘neighbourhood’ and that the situation should one in which the court
considers it fair, just and reasonable that the law should impose a
duty (…).”
three elements:
foreseeability of damage
relationship/proximity: for example, there was a contract
between them, or the one who owes the duty of care should
know that they will rely on his work ect.
fair, just and reasonable to impose
- in this case there is no duty of care
- Hedley Byrne v Heller
- HB are advertisement agents
- Customer Easipower put in large orde
- HB asked their bank to get info about creditworthiness from bank of
Easipower, Heller
- Heller stated that E was “considered good for its ordinary business
engagements”
- E went bankrupt and HB lost 17,000 pounds
- Is H liable to HB?
Here the court held Heller liable for incorrect statement;
4
