Doctor iuris, Lecturer of Cicil Law, University of Tartu
Forms of Liability in the Law of Delict: Fault-Based Liability and Liability without Fault
Through times, the question of strictness of liability has been one of the principal problems in the law of delict. Thus there has been a search for the limit to the extent of which damage must be borne by the aggrieved party and for the point from where on the aggrieved party must be compensated for the damage by a third person, i.e. generally the tortfeasor1. Or, more specifically, whether a fact of causing damage is sufficient to give rise to delictual liability or the tortfeasor's fault is also required for that purpose has remained a timeless question.
This article is aimed at analysing what the prevailing form of liability is in delictual law and what it should be. In addition, the article will seek an answer to the question of what the trends of development are as regards the strictness of delictual liability. Understandably, this sphere of problems is specific not only to Estonia: the problems in question are topical in all legal orders.
This article is divided into four subtitles: the first provides a brief review on the historical development of liability in the law of delict and the second addresses the forms of delictual liability in present-day legal orders. The third subtitle offers an analysis regarding the rationale of different forms of liability in the law of delict. The final, fourth subtitle is dedicated to exploring whether and to what extent possible developments of liability in the law of delict can be pointed out on the basis of the present tendencies.
In the archaic legal orders2, liability under the law of delict was independent of fault. The purpose of liability was not to compensate for damage but, first of all, to 'heal' the violated legal order through a magical procedure3. Already in the beginning of civilisation, causal liability existed in most societies (e.g. in Babylonian, earliest Roman4 and English law)5, and delictual liability was a consequence of breach of the peace caused by an improper act6. The beginning of fault-based liability can be connected with as late a period as the end of the Roman Republic7, and after the end of the Roman State, the principle of fault had to wait until the 17th or 18th century, when it was redeclared by natural-law jurists8. After the Christianisation of law, sin, which always originated from evil will, became the central concept in liability. Fault was the core of sin9.
In the 19th century, the principle of fault scored a triumph, making its way to the presently applicable civil codes. Thus, in the beginning of that century, fault-based liability was implemented in the French Code Civil, (hereinafter Code Civil), thereafter also in the Austrian civil code, which entered into force in 1812, and causal liability became an exception10. Even for the drafters of the German Civil Code (hereinafter 'BGB'), which entered into force on 1 January 1900, fault was the major requisite for liability under the law of delict11. It was said that liability without fault, or strict liability, did not serve the development of commerce in any case but it also imposed unreasonable restrictions on individuals' freedom of movement12. The same notion also served as a basis for other legislators and scientists of the 19th century13. Thus the US scientist R.L. Rabin sees the explanation for the inception of fault-based liability in the United States in that at those times many judges believed that the economic development of the young country would be obstructed by a possibility that the entrepreneurs should be liable for damage arising purely from accidents14.
The establishment of the principle of fault can be regarded as a consequence of the 19th-century liberality15. According to such a way of thinking, it was said that by the nature of things, a sanction or an obligation to compensate for damage could only follow from reproachable behaviour. The prevailing principle was nulla indemnitas sine culpa: no indemnity without fault16.
The period of the (almost) absolute rule of the principle of fault did not last long: strict liability became necessary when, as increasingly high risks were handled, fault-based liability could no longer serve its balancing function (for the reason that due care was not directed to avoiding the risk but to handling the risk in a suitable manner)17. Another reason for the inception of strict liability was the fact that when economic stability and welfare was achieved by countries, there was no longer need for legislators and courts to support the economy18.
In Germany, strict liability was first introduced into positive law in 1838 by the Prussian Railway Act. In 1909, liability without fault was established for possessors of motor vehicles (Kraftfahrzeuggesetz, § 7), and other areas followed. The French Court of Cassation adopted a judgment pioneering for strict liability in 1896 by awarding damages to a widow for her spouse, who had been killed in an industrial accident, although the company's fault could not be proved19. In Great Britain, a foundation for strict liability was laid in 1868 by the House of Lords in Rylands v. Fletcher20.
It can be noted in summary that fault has not always and not in every society been a pre-requisite for liability under delictual law. There is no way but to agree with the thesis of B.S. Markesinis that the role of fault has changed through times; fault as a basis of tortious liability has been ignored, glorified and questioned at different times21. The valuation or discarding of fault has depended primarily upon social values (e.g. the liberal way of thinking, which became a cradle for fault) as well as general views on life, and, from the 19th century also upon the needs of the economy. In any case it is obvious that estimates for the future are relatively difficult to provide on the basis of how liability in delictual law has developed historically as a whole, since the needs and judgments of the society have changed rapidly and may do so in the future22.
In the present time, liability based on the general elements of delict, strict liability and producer liability can be distinguished in the laws of delict of most countries. Fault of the tortfeasor is usually required for general delictual liability. Thus § 1043 of the Estonian Law of Obligations Act23 (LOA) provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable of causing the damage or is liable for causing the damage pursuant to law24.
The principle of fault has been also used as a basis for regulating liability resulting from the general elements of delict e.g. in the Russian Federation Civil Code, § 106425; the BGB § 823; the Italian Civil Code, § 2043; the Code Civil, §§ 1382-1383; the Greek Civil Code, § 914; the Swiss Civil Code, § 41 (1); the Austrian civil code, § 1295 (1); the Hungarian Civil Code, § 339; etc. General delictual liability depends on culpability also in e.g. Finland26 and Sweden27. Even in common-law countries, the so-called negligence liability constitutes the most important set of elements of liability28. As a general rule, an obligation to compensate for damage will ensue only from a culpable act also in Japan (Japanese Civil Code, § 709)29 and China30.
As observed above, delictual liability can also arise without the tortfeasor's fault in most modern legal orders. Such a situation has been reached by introducing respective provisions into civil codes, by adopting specific acts (primarily in the German law of delict31) or as a result of judicial legislation (in French law and in common-law countries)32. This regards mainly strict liability and producer liability, in respect of which the question of fault is put in the background (in the event of producer liability) or altogether disregarded (in the event of strict liability).
The number of the sets of elements giving rise to strict liability is increasing all the time, and for example, in common-law countries, more and more disputes can be settled on the basis of strict liability33. Today, the actual situation is seen rather as such that most of the damage cases are already covered by the regulation of strict liability and producer liability, and hence an overwhelming majority of damage cases are settled on the basis of liability without fault34. Thus it can be asserted that although fault is required in the general elements of delictual liability, fault-based liability is increasingly losing its dominant position to liability without fault or strict liability in modern legal orders.
Caution should be exercised in assessing whether fault-based liability or strict liability is essentially applied to specific cases in a legal order. The reason for this is the possibility of a smooth transition from fault-based liability to strict liability. Such a transition can be noticed particularly in those legal orders where the law provides only a few or no sets of elements for strict liability. Thus, for example, there is yet no specific regulation for compensation for damage caused by motor vehicles or aircraft in Great Britain, the United States and...