Understanding Comparative Property Law in the Contemporary Legal Landscape

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Comparative Property Law explores the common challenges and fundamental questions of contemporary tort law, covering topics such as tort liability, legal positions protected by tort law, criteria for attributing liability, compensatory, deterrence, and punitive functions of tort law, and more. The images provided illustrate key concepts and principles discussed in the academic setting of Universit LUMSA.

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Comparative Law Prof.ssa Letizia Coppo Cattedra di Diritto comparato A.A. 2022-2023

Comparative tort law

COMPARATIVE PROPERTY LAW The common challenges of contemporary tort law Artificial Intelligence liability Internet Service Providers liability Digital Product liability Environmental liability 3 Universit LUMSA

COMPARATIVE PROPERTY LAW The fundamental questions of tort law What is tort liability? What is(are) the function(s) of tort law? What are the legal positions protected by tort law? What are the conducts giving rise to liability? What are the subjective criteria to attribute liability? What are the objective criteria to attribute liability? What if the victim contributed to the wrong? What are the damages that can be compensated? Are there cases in which the tortfeasor is exempted from liability? What are the capacity requirements for being held liable? 4 Universit LUMSA

COMPARATIVE PROPERTY LAW What is tort liability? Liability means subjection to the obligation to pay damages. Tort liability occurs when there is a violation of a position protected by the legal system by a person (the tortfeasor) who is not contractually related to the victim. Liability differs from accountability. 5 Universit LUMSA

COMPARATIVE PROPERTY LAW What is (are) the function(s) of tort law? Compensatory function = aims at restoring the situation prior to the wrong. Deterrence function = aims at preventing further wrongs. Punitive function = aims at punishing the wrongdoer. It is a matter of allocating the costs of accidents. 6 Universit LUMSA

COMPARATIVE PROPERTY LAW What is (are) the function(s) of tort law? Compensatory function: the functional perimeter designed for tort law is based on an essentially bilateral and monetary logic, according to which liability is conceived as a relationship between the wrongdoer and the victim, with no place for society, and damages are the pecuniary equivalent for the loss suffered. 7 Universit LUMSA

COMPARATIVE PROPERTY LAW What is (are) the function(s) of tort law? Punitive function and the punitive damages dilemma: are damages which do not aim at compensating the loss but only at deterring and punishing the wrongdoer compliant with civil law systems? Are civil law acknowledge common awards? Are civil law judges empowered to award punitive damages? judges punitive entitled damages to law 8 Universit LUMSA

COMPARATIVE PROPERTY LAW What is (are) the function(s) of tort law? Punitive compensatory damages and punitive damages serve different purposes. function and compensatory function: Compensatory damages aim at restoring the injured party to the pre-tortuous condition (loss-oriented), while punitive damages perform an (wrong-oriented). admonitory function 9 Universit LUMSA

COMPARATIVE PROPERTY LAW What is (are) the function(s) of tort law? Punitive compensatory damages and punitive damages focus on the interests of different persons. function and compensatory function: Compensatory punitive damages are tort feasor and society- oriented. damages are victim-oriented, while 10 Universit LUMSA

COMPARATIVE PROPERTY LAW What is (are) the function(s) of tort law? Punitive compensatory damages and punitive damages consider relevant time periods differently. function and compensatory function: When prospective element, which focuses on the person of the victim, is the future damages of the wrongful act that may be compensated in advance, whereas in punitive damages such element is more important as it is related to deterrence. dealing with compensatory damages the only 11 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? Two possible approaches Atypicality of torts (under French law and Italian law there is no closed list of wrongs, but tort liability rests on the prohibition of harming other persons (neminem laedere). Typicality of torts (under Roman law delicts were typical, and they still are under German and English law, though with some margin of evolution; this comes from criminal law). 12 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The French approach Article 1240. Tout fait quelconque de l'homme, qui cause autrui un dommage, oblige celui par la faute duquel il est arriv le r parer. Article 1241. Chacun est responsable du dommage qu'il a caus non seulement par son fait, mais encore par sa n gligence ou par son imprudence. 13 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The French approach: responsabilit pour fait d autrui (vicarious liability) Article 1242. On est responsable non seulement du dommage que l'on cause par son propre fait, mais encore de celui qui est caus par le fait des personnes dont on doit r pondre, ou des choses que l'on a sous sa garde. Toutefois, celui qui d tient, un titre quelconque, tout ou partie de l'immeuble ou des biens mobiliers dans lesquels un incendie a pris naissance ne sera responsable, vis- -vis des tiers, des dommages caus s par cet incendie que s'il est prouv qu'il doit tre attribu sa faute ou la faute des personnes dont il est responsable. Cette disposition ne s'applique pas aux rapports entre propri taires et locataires, qui demeurent r gis par les articles 1733 et 1734 du code civil. Le p re et la m re, en tant qu'ils exercent l'autorit parentale, sont solidairement responsables du dommage caus par leurs enfants mineurs habitant avec eux. Les ma tres et les commettants, du dommage caus par leurs domestiques et pr pos s dans les fonctions auxquelles ils les ont employ s. Les instituteurs et les artisans, du dommage caus par leurs l ves et apprentis pendant le temps qu'ils sont sous leur surveillance. La responsabilit ci-dessus a lieu, moins que les p re et m re et les artisans ne prouvent qu'ils n'ont pu emp cher le fait qui donne lieu cette responsabilit . En ce qui concerne les instituteurs, les fautes, imprudences ou n gligences invoqu es contre eux comme ayant caus le fait dommageable, devront tre prouv es, conform ment au droit commun, par le demandeur, l'instance. 14 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The French approach: liability for animals Article 1243. Le propri taire d'un animal, ou celui qui s'en sert, pendant qu'il est son usage, est responsable du dommage que l'animal a caus , soit que l'animal f t sous sa garde, soit qu'il f t gar ou chapp . 15 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The French approach: liability for collapsing building. Article 1244. Le propri taire d'un b timent est responsable du dommage caus par sa ruine, lorsqu'elle est arriv e par une suite du d faut d'entretien ou par le vice de sa construction. 16 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The French approach Chapter II : La responsabilit du fait des produits d fectueux Chapter III : La r paration du pr judice cologique 17 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The Italian approach Art. 2043 c.c. Any intentional or negligent act that causes to another person a wrongful damage compensate the damage. binds the author to Wrongful damage: in the first age of tort liability the wrongful damage was only the one deriving from the infringement of an absolute right; in the second age it has been extended also to relative rights; then to factual positions, then to legitimate interests; and finally to whatever interest protected by the legal system. 18 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The Italian approach: vicarious and strict liability (+ special statutes, e.g. on product l.) Art. 2048 c.c. Liability of parents, guardians, preceptors and art masters. Art. 2049 c.c. Liability of employers. Art. 2050 c.c. Liability for dangerous activities. Art. 2051 c.c. Liability for things in custody. Art. 2052 c.c. Liability for animals. Art. 2053 c.c. Liability for collapse of a building. Art. 2054 c.c. Liability for circulation of vehicles. 19 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The German approach 3 general provisions ( 823 I, 823 II, and 826 BGB, on which see below) and some specific provisions, which deal with a number of rather narrowly defined tortious situations ( 824 deals with cases where untrue statements damage one s credit; 825 imposes an obligation to compensate anyone who has indecently induced a female person to have sexual intercourse with him; 834 deals with the liability of animal supervision; 836 deals with liability to ruinous buildings; 839 deals with the liability of public officials, etc. 20 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The German approach 823 BGB. A person who wilfully or negligently injures the life, body, health, freedom, property, or other right of another contrary to law is bound to compensate him for any damage arising therefrom. The same obligation attaches to a person who infringes a statutory provision intended for the protection of others. If according to the purview of the statute infringement is possible even without fault, the duty to make compensation arises only if some fault can be imputed to the wrongdoer. 21 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The German approach 824 BGB. A person who maintains or publishes, contrary to the truth, a statement calculated to endanger the credit of another, or to injure his earnings or prospects in any other manner, must compensate the other for any damage arising therefrom, even if he does not know of its untruth, provided he ought to know. A communication the untruth of which is unknown to the person making it does not thereby compensation, if he or the recipient of the communication has a justifiable interest in it. render him liable to make 22 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The German approach 825 BGB. A person who by fraud or threats, or by an abuse of the relation of dependence, induces a woman to permit illicit cohabitation is bound to compensate her for damage arising therefrom. 23 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The common law (England and Wales) approach The origin of English tort law lies in the Middle Ages and tort law was the first form of protection of rights known by the system. Contract law and property law have developed from tort law. In Medieval England each claim was typical and had to be filed through a specific form of action, following its own procedural rules (writ). The typicality of writs lead to the typicality of torts: these latter are the result of a mixture between substantive law elements (the identification of the protected legal situations, the nature of liability fault based or strict, the assessment of culpability and on the existence of the causation link, the relevance of contributory negligence, the measure of damages) and procedural elements (each tort had its own range of subjects entitled to the claim, its own evidentiary rules and ways to file the claim). 24 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The common law (England and Wales) approach What gave birth to the system of tort liability is the writ of trespass. At the beginning (8th-14th century) it protected the inviolability of persons and his belongings against whatever offence or physical interference by third parties. Trespass to person (assault and battery; false imprisonment) Trespass to land Trespass to chattels 25 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The common law (England and Wales) approach Writ of trespass = it was the order awarded to the claimant by the chancellor of the royal court through which the king summoned the defendant to appear in court for the offence he had committed in such a violent way as to infringe the king s peace. The suit had a quasi-criminal nature, in the sense that the ascertainment of trespass entailed not only the obligation of compensating damages, but also the sentence to a pecuniary penalty or, in the failure of it, to imprisonment. 26 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The common law (England and Wales) approach In the course of 14th-15th century, the claim for tort liability was extended towards wrongs that are perpetrated without physical violence and direct offence to the body integrity of the victim or to this latter s possessions (corpore corpori). That way, the writ of trespass has gradually turned into a new form of action named trespass upon the special case (or action on the case or, simply, case). This gave rise to the distinction between wrongs with violence and wrongs without violence. 27 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The common law (England and Wales) approach English case-law started adding constantly new figures of liability or applying the traditional ones extensively, on the grounds of the general principle of neminem laedere. The contemporary system of tort liability is now dominated by one single figure of wrong, provided with multiple applicative options: the tort of negligence 28 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The common law (England and Wales) approach The tort of negligence was created by case-law at the beginning of 20th century for facing all those frequent cases in which the damages were caused by the use of industrial machinery. It is based on a general duty of care. According to a classical definition, it is the duty of each individual to avoid whatever act or omission that may cause a harm to another individual ( You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour ). 29 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the legal positions protected by tort law or the conducts entailing tort liability? The common law (England and Wales) approach The borders and contents of such duty are rather flexible and blurred, but we could say encompasses all those cases in which there are two or more individuals and one of them is in such position that reasonably entails a risk of endangering the other in its physical integrity or its possessions. A case-by-case approach is needed. that the tort of negligence 30 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the subjective criteria to attribute liability? Intention or malice Negligence or fault Objective scope of activity and sphere of risk (strict liability) Position towards the source of the damage (vicarious liability) 31 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the subjective criteria to attribute liability? Causation link: the link between the tortfeasor s conduct and the infringement of a legal position (material causation link) and the link between the infringement of a legal position and the consequential damages (legal causation link). The criterion to assess the existence of the link has always been the object of a lively debate: the prevailing doctrine is the necessary condition (condicio sine qua non). 32 Universit LUMSA

COMPARATIVE PROPERTY LAW What if the victim contributed to the wrong? It is the problem that common lawyer name contributory negligence ; under civil law, it is often related to the general duty of mitigating the losses. Normally, the damages are awarded on the basis of the percentage of contribution to the causation of the damage. 33 Universit LUMSA

COMPARATIVE PROPERTY LAW What kind of damages can be compensated? Patrimonial damages (expenses, loss of chances, biological damage) Moral damages (pain, existential damage ) Thanatological damage? Jure proprio and jure hereditatis Only foreseeable damages. 34 Universit LUMSA

COMPARATIVE PROPERTY LAW Are there cases in which the tortfeasor can be exempted from liability? Self-defence: provided that proportionate State of necessity Consent of the victim Legal liability exemptions Agreed liability exemptions 35 Universit LUMSA

COMPARATIVE PROPERTY LAW What are the capacity requirements for being held liable? Generally speaking, wrongs are not qualifiable as negozi giuridici, and a proof of that is the circumstance that civil codes only require natural capacity, not legal capacity. Then, it will be a matter of identifying who bears the consequences of a wrong committed by a person with natural capacity but no legal capacity. 36 Universit LUMSA