TORT LAW
Quarter 3
Lieke Spruit
THE HAGUE UNIVERSITY OF APPLIED SCIENCES
,Lieke Spruit (16030575) Tort Law
Table of Contents
LECTURE 1 ........................................................................................................................................................ 2
LECTURE 2 ........................................................................................................................................................ 6
LECTURE 3 ...................................................................................................................................................... 10
LECTURE 4 ...................................................................................................................................................... 15
LECTURE 5 ...................................................................................................................................................... 20
LECTURE 6 ...................................................................................................................................................... 26
LECTURE 7 ...................................................................................................................................................... 35
1
,Lieke Spruit (16030575) Tort Law
Lecture 1
Elemental comparative law
• Methods
o Compare two different legal traditions by selecting and comparing data points
• Method in this course:
o Compare representative forms of sources
▪ In this course, we are not comparing actual sources, but rather representations
of those sources, i.e. representative cases rather than the case law from a
particular jurisdiction and the Draft Common Frame of Reference rather than
codes from specific European countries
o Compare legal reasoning methods
o Compare the functional purpose of tort law in society
Comparative view – form of legal source
Common Law
• Principle extracted from case law
• Rules are decided and applied based on the relevant facts.
• Common law principle: A court should follow the decisions of prior courts that have ruled on
similar cases to produce a predictable outcome. A court that hears a case that presents a new
problem or “case of first impression” has the obligation to find the appropriate legal rule. This
case then becomes precedent. A precedent can be either binding or persuasive. A decision
from a superior court or from the same court on the same set of facts is binding precedent
under the doctrine of stare decisis. Decisions from other jurisdictions or parallel courts are
persuasive. Established principles should not be disturbed.
• In most common law jurisdictions, there are three sources of law:
o Case law (binding precedent)
o Statutory law
o Regulatory law
▪ All three have equal importance
Civil Law
• Statutory law: e.g. Civil Codes (e.g. French Civil Code (Code Napoléon, 1804); German Civil Code
(Bürgerliches Gesetzbuch, 1900); Italian Civil Code (Codice Civile Italiano, 1942))
• Rules are laid down by the legislator
o Usually general rules that allow national courts to further develop this area of law
• Systematic approach
• Academic writings are very important in the development of the law (private law)
o E.g. BGB (Germany Civil Code) is also known as Professorenrecht (law made by
professors) – national courts very often discuss the opinions of legal authors in their
decisions
• Case law role than Common Law
o But remember: case law has developed this area of law because the legislator has not
drafted specific rules to cover each aspects of everyday life
2
, Lieke Spruit (16030575) Tort Law
Comparative view – legal reasoning methods
Common Law
• The rule is extracted from a case in your jurisdiction where a court has decided the matter
based on the same or similar facts.
• Lawyers find a case with identical facts (at least similar) and extract a rule of law from the
holding in that case. The lawyers then argue that that prior decision is binding on the current
case because of stare decisis or, in the event it is not binding, it is persuasive. The entire
argument is based on the similarity of facts between the two cases. Lawyers on the other side
of the case may argue that the principle of law does not apply because the facts are different
or because the case is from a different court system that treats the issue differently. This is
called “distinguishing the case.”
Civil Law
• European Code-based legal systems (DCFR)
o Deductive method of legal reasoning: from general to particular
o Lawyers start by analysing the legal rule and then they apply it to the facts of the
specific case at issue
Comparative view – functional purpose of Tort
Common Law
• Corrective Justice (ex post)
o Making the injured party whole
• Deterrence of Future Wrongdoing (ex ante)
o Corrective action for the benefit of the entire society
o Corrective private action in place of governmental action
o Requires an open, accessible court system
Civil Law
• Reparation (ex post)
o “The purpose of tort law is to restore as exactly as possible the status quo that was
disturbed by the harm and to restore the victim to the situation in which he would have
been if the wrongful act had not occurred”
▪ e.g. in kind or through monetary compensation
• Recognition (ex post)
o “Recognition that the victim has suffered a wrong or that his/her right has been
infringed”
▪ e.g. nominal damages or a court’s decision that someone’s right is infringed
• Prevention (ex ante) – see DCFR Art. 1:102
o Be careful: distinction between prevention, punishment and deterrence
▪ DCFR: no punitive damages – not consistent with the principle of reparation
▪ European code based legal systems: punitive damages are awarded especially
in cases of violation of a person’s personality right (e.g. privacy) – BGH and
Caroline of Monaco
3
Quarter 3
Lieke Spruit
THE HAGUE UNIVERSITY OF APPLIED SCIENCES
,Lieke Spruit (16030575) Tort Law
Table of Contents
LECTURE 1 ........................................................................................................................................................ 2
LECTURE 2 ........................................................................................................................................................ 6
LECTURE 3 ...................................................................................................................................................... 10
LECTURE 4 ...................................................................................................................................................... 15
LECTURE 5 ...................................................................................................................................................... 20
LECTURE 6 ...................................................................................................................................................... 26
LECTURE 7 ...................................................................................................................................................... 35
1
,Lieke Spruit (16030575) Tort Law
Lecture 1
Elemental comparative law
• Methods
o Compare two different legal traditions by selecting and comparing data points
• Method in this course:
o Compare representative forms of sources
▪ In this course, we are not comparing actual sources, but rather representations
of those sources, i.e. representative cases rather than the case law from a
particular jurisdiction and the Draft Common Frame of Reference rather than
codes from specific European countries
o Compare legal reasoning methods
o Compare the functional purpose of tort law in society
Comparative view – form of legal source
Common Law
• Principle extracted from case law
• Rules are decided and applied based on the relevant facts.
• Common law principle: A court should follow the decisions of prior courts that have ruled on
similar cases to produce a predictable outcome. A court that hears a case that presents a new
problem or “case of first impression” has the obligation to find the appropriate legal rule. This
case then becomes precedent. A precedent can be either binding or persuasive. A decision
from a superior court or from the same court on the same set of facts is binding precedent
under the doctrine of stare decisis. Decisions from other jurisdictions or parallel courts are
persuasive. Established principles should not be disturbed.
• In most common law jurisdictions, there are three sources of law:
o Case law (binding precedent)
o Statutory law
o Regulatory law
▪ All three have equal importance
Civil Law
• Statutory law: e.g. Civil Codes (e.g. French Civil Code (Code Napoléon, 1804); German Civil Code
(Bürgerliches Gesetzbuch, 1900); Italian Civil Code (Codice Civile Italiano, 1942))
• Rules are laid down by the legislator
o Usually general rules that allow national courts to further develop this area of law
• Systematic approach
• Academic writings are very important in the development of the law (private law)
o E.g. BGB (Germany Civil Code) is also known as Professorenrecht (law made by
professors) – national courts very often discuss the opinions of legal authors in their
decisions
• Case law role than Common Law
o But remember: case law has developed this area of law because the legislator has not
drafted specific rules to cover each aspects of everyday life
2
, Lieke Spruit (16030575) Tort Law
Comparative view – legal reasoning methods
Common Law
• The rule is extracted from a case in your jurisdiction where a court has decided the matter
based on the same or similar facts.
• Lawyers find a case with identical facts (at least similar) and extract a rule of law from the
holding in that case. The lawyers then argue that that prior decision is binding on the current
case because of stare decisis or, in the event it is not binding, it is persuasive. The entire
argument is based on the similarity of facts between the two cases. Lawyers on the other side
of the case may argue that the principle of law does not apply because the facts are different
or because the case is from a different court system that treats the issue differently. This is
called “distinguishing the case.”
Civil Law
• European Code-based legal systems (DCFR)
o Deductive method of legal reasoning: from general to particular
o Lawyers start by analysing the legal rule and then they apply it to the facts of the
specific case at issue
Comparative view – functional purpose of Tort
Common Law
• Corrective Justice (ex post)
o Making the injured party whole
• Deterrence of Future Wrongdoing (ex ante)
o Corrective action for the benefit of the entire society
o Corrective private action in place of governmental action
o Requires an open, accessible court system
Civil Law
• Reparation (ex post)
o “The purpose of tort law is to restore as exactly as possible the status quo that was
disturbed by the harm and to restore the victim to the situation in which he would have
been if the wrongful act had not occurred”
▪ e.g. in kind or through monetary compensation
• Recognition (ex post)
o “Recognition that the victim has suffered a wrong or that his/her right has been
infringed”
▪ e.g. nominal damages or a court’s decision that someone’s right is infringed
• Prevention (ex ante) – see DCFR Art. 1:102
o Be careful: distinction between prevention, punishment and deterrence
▪ DCFR: no punitive damages – not consistent with the principle of reparation
▪ European code based legal systems: punitive damages are awarded especially
in cases of violation of a person’s personality right (e.g. privacy) – BGH and
Caroline of Monaco
3
