Exam Prep: Tort Law
Elements of tortious liability in the DCFR:
1) Legally relevant damage: the loss suffered by the victim (Book VI, Chapter 2)
2) Grounds of accountability: intention, negligence, and strict liability (Book VI, Chapter 3)
3) Causation: the causal relation between the tortfeasor and the damage (Book VI, Chapter 4)
Contrast with Common Law:
- Civil law systems deal with torts through a catch-all clause based on the existence of damage
- Common law systems deal with individual torts (e.g. tort of trespass, tort of battery, ect.)
Grounds of Accountability: DCFR:
VI.-3:101: Intention:
A person causes legally relevant damage intentionally when that person causes such damage either:
a) Meaning to cause damage of the type caused; or
a. Dolus directus: deliberate intention to engage in wrongful conduct
è Not only about the act or omission but also about the (type of)
damage
è Person must be conscious of doing wrong
b) By conduct which that person means to do, knowing that such damage, or damage of that
type will or will almost certainly be caused
a. Dolus indirectus/eventualis: person does not mean to cause the damage, nut accepts
it as extremely likely
è Person should be able to foresee the possible damage, not
necessarily the same events
VI.-3:102: Negligence:
A person causes legally relevant damage negligently when that person causes the damage by
conduct which either:
a) Does not meet the particular standard of care provided by a statutory provision whose
purpose is the protection of the person suffering the damage from that damage; or
b) Does not otherwise amount to such care as could be expected from a reasonably careful
person in the circumstances of the case
a. General duty of care
Causation & DCFR:
VI-4:101:
, 1) A person causes legally relevant damage to another if the damage is to be regarded as a
consequence of that person’s conduct or the source of danger for which that person is
responsible
2) In cases of personal injury or death the injured person’s predisposition with respect to the
type or extent of the injury sustained is to be disregarded
- DCFR does not make distinction on types of causes, but courts will nevertheless do so:
o Cause in fact: the damage results from the conduct (conditio sine qua non, aka ‘but
for’)
o Cause in law: the damage was a predictable and foreseeable result (proximate cause)
Alternative causes:
(where condition sine qua non test cannot be met, because it is impossible to determine who is
responsible)
VI.-4:103:
Where legally relevant damage may have been caused by any one or more of a number of
occurrences for which different persons are accountable and it is established that the damage was
caused by one of these occurrences but not which one, each person who is accountable for any of
the occurrences is rebuttably presumed to have caused that damage
è Creates solidary liability
Successive Causes:
(not expressively regulated in the DCFR)
- Several events in sequence cause the damage:
o If the 2nd event would have caused the same damage as the first, the 1st tortfeasor
remains liable, but can claim against the 2nd
o If the 2nd tortfeasor worsened the situation, they are solidary liable if the 2nd damage
was attributable to the 1st. If the 2nd damage is too remote, then the 2nd tortfeasor is
only responsible for the aggravated damage.
Defenses:
- Main elements of liability have been proven, but the defendant can be held not liable or
have their liability reduced
VI.-5:101(1): Consent:
A person has a defense if the person suffering the damage validly consented to the legally relevant
damage and was aware or could reasonably be expected to have been aware of the consequences of
that consent
VI.-5:101(2): Acting at own risk:
The same applies if the person suffering the damage, knowing the risk of damage of the type caused,
voluntarily takes that risk and is to be regarded as accepting it
VI.-5:102(1): Contributory Fault:
Elements of tortious liability in the DCFR:
1) Legally relevant damage: the loss suffered by the victim (Book VI, Chapter 2)
2) Grounds of accountability: intention, negligence, and strict liability (Book VI, Chapter 3)
3) Causation: the causal relation between the tortfeasor and the damage (Book VI, Chapter 4)
Contrast with Common Law:
- Civil law systems deal with torts through a catch-all clause based on the existence of damage
- Common law systems deal with individual torts (e.g. tort of trespass, tort of battery, ect.)
Grounds of Accountability: DCFR:
VI.-3:101: Intention:
A person causes legally relevant damage intentionally when that person causes such damage either:
a) Meaning to cause damage of the type caused; or
a. Dolus directus: deliberate intention to engage in wrongful conduct
è Not only about the act or omission but also about the (type of)
damage
è Person must be conscious of doing wrong
b) By conduct which that person means to do, knowing that such damage, or damage of that
type will or will almost certainly be caused
a. Dolus indirectus/eventualis: person does not mean to cause the damage, nut accepts
it as extremely likely
è Person should be able to foresee the possible damage, not
necessarily the same events
VI.-3:102: Negligence:
A person causes legally relevant damage negligently when that person causes the damage by
conduct which either:
a) Does not meet the particular standard of care provided by a statutory provision whose
purpose is the protection of the person suffering the damage from that damage; or
b) Does not otherwise amount to such care as could be expected from a reasonably careful
person in the circumstances of the case
a. General duty of care
Causation & DCFR:
VI-4:101:
, 1) A person causes legally relevant damage to another if the damage is to be regarded as a
consequence of that person’s conduct or the source of danger for which that person is
responsible
2) In cases of personal injury or death the injured person’s predisposition with respect to the
type or extent of the injury sustained is to be disregarded
- DCFR does not make distinction on types of causes, but courts will nevertheless do so:
o Cause in fact: the damage results from the conduct (conditio sine qua non, aka ‘but
for’)
o Cause in law: the damage was a predictable and foreseeable result (proximate cause)
Alternative causes:
(where condition sine qua non test cannot be met, because it is impossible to determine who is
responsible)
VI.-4:103:
Where legally relevant damage may have been caused by any one or more of a number of
occurrences for which different persons are accountable and it is established that the damage was
caused by one of these occurrences but not which one, each person who is accountable for any of
the occurrences is rebuttably presumed to have caused that damage
è Creates solidary liability
Successive Causes:
(not expressively regulated in the DCFR)
- Several events in sequence cause the damage:
o If the 2nd event would have caused the same damage as the first, the 1st tortfeasor
remains liable, but can claim against the 2nd
o If the 2nd tortfeasor worsened the situation, they are solidary liable if the 2nd damage
was attributable to the 1st. If the 2nd damage is too remote, then the 2nd tortfeasor is
only responsible for the aggravated damage.
Defenses:
- Main elements of liability have been proven, but the defendant can be held not liable or
have their liability reduced
VI.-5:101(1): Consent:
A person has a defense if the person suffering the damage validly consented to the legally relevant
damage and was aware or could reasonably be expected to have been aware of the consequences of
that consent
VI.-5:101(2): Acting at own risk:
The same applies if the person suffering the damage, knowing the risk of damage of the type caused,
voluntarily takes that risk and is to be regarded as accepting it
VI.-5:102(1): Contributory Fault:
