Subjective Fault as a Basis of Delictual Liability

• Author: Janno Lahe
• Pages: 125-132

Janno Lahe

Subjective Fault as a Basis of Delictual Liability

Introduction

Fault is an element of delictual liability that contains a reproach on the person who has behaved wrongfully and has thus caused damage. So far, the law in force in the Republic of Estonia has relied on the definition of fault that was used in the Soviet civil law theory according to which fault is the relationship between a person's consciousness and the consequences of his or her action¹. Hopefully, the Riigikogu (Estonian parliament) will pass the Law of Obligations Act ² (hereinafter: LOA) in this year. The draft of the LOA is a modern draft that follows the traditions of continental Europe. Chapter 54 of the LOA regulates the infliction of damage by tort and draws a distinction between three elements of delictual liability: general elements of delict, risk liability and manufacturer's liability. In the preparation of the draft, there was no serious doubt as to whether the general elements of delict should include fault as one of the preconditions for liability because fault is generally recognised as a basis of delictual liability³. What was definitely more interesting was the other aspect of fault which concerns the objectivity and subjectivity of fault. The authors of the LOA have taken as a basis the concept of subjective fault, which means that when deciding whether a person has behaved wrongfully not only the objective circumstances but also the personal qualities of the tortfeasor should be taken into consideration.

This article aims to find out if the choice made in the LOA in favour of subjective fault is justified or not. To achieve the aim, it is reasonable to compare and analyse the corresponding legal regulations and theoretical standpoints of other countries.

Origins of the problem

It is possible to draw a fundamental distinction between two main theories of delictual liability. Firstly, there is the so-called classical theory, which claims that fault is an obligatory element for the creation of liability, and secondly, there is the so-called objective theory, which does not consider the existence of fault to be the necessary precondition for the creation of delictual liability. The LOA is based on the classical theory. However, it should be noted that the concept of fault varies within the classical theory, the variations being based namely on the approach to fault as objective or subjective fault. It is a matter of dispute on which the jurists have not reached a common view.

In case of subjective fault the focus is on the tortfeasor, on his or her individual qualities and peculiarities. However, this approach may often lead to a contradiction between theory and practice. Namely, it cannot always be assumed that when making the judgement, the judge is actually able to evaluate adequately the personal qualities of the tortfeasor, and yet it is on this basis that the diligence standards for this specific person are established. Therefore, the development of the law of tort led to the exclusion of personal qualities from the evaluation of a person's behaviour.

In case of the so-called objective fault the emphasis is laid on the violation of a behavioural norm. Here, the behaviour of a person is evaluated according to the question of whether he or she should have been able to foresee and avoid the infliction of damage. The answer to the question is generally found on the basis of the behavioural standard of a normal, reasonable man in the same situation in which the damage was caused on this specific occasion.

The concept of fault in the civil law in force in the Republic of Estonia

The Civil Code of the Estonian SSR passed on 12 June 1964 ⁴ (hereinafter: Civil Code) does not provide the definition of fault. Section 227 of the Civil Code provides intention and incautiousness as types of fault. The Soviet civil law theory explained fault as the relationship between the tortfeasor's consciousness and the consequences of his or her action. Thus, the question was posed whether the person wished or did not wish the consequences to emerge, whether he or she foresaw the consequences or had to foresee them⁵.

Levels of incautiousness (incautiousness and severe incautiousness) were determined on the basis of specific circumstances. The aspects that were taken into account were the nature and conditions of the action as well as the personal qualities of the tortfeasor⁶.

It can be concluded from the above that the law in force as a law reflecting the standpoints of the Soviet civil law theory relies on the concept of subjective fault with an emphasis on personal qualities rather than the violation of a behavioural norm. Judging the fault on each specific occasion, the primary task is to evaluate how the person himself or herself understood his or her action and whether he or she as an individual was not only obliged to foresee but was actually able to foresee that his or her behaviour might result in damage.

In my opinion, a great drawback of the Soviet law theory and thus also of the law in force is the overestimation of one aspect of negligence ? the subjective attitude of a person to his or her action and its consequences. Resulting from this, not enough attention has been paid to the issue of whether and to what extent the person was able to avoid damage or mitigate the damaging consequences. Besides this, it is questionable if in case of unaware passivity it is possible to speak about the subjective attitude of a person to his or her action (inaction).

The concept of fault in the legal orders of continental European countries

In the civil law theory of the Federal Republic of Germany there is a multitude of opinions on the issue in question.

Sentence 2 of subsection 276 (1) of the Civil Code of the Federal Republic of Germany ⁷ (hereinafter: BGB) provides that a person is negligent if he or she fails to fulfil the general duty of care (allgemeine Verkehrspflicten). This is the concept of objective fault. J. Esser claims that since negligence, for the purposes of sentence 2 of subsection 276 (1) of the BGB, is connected only with the general duty of care, the fault is no longer a precondition for liability in the sense of personal reproachability⁸.

B. S. Markesinis explains the fulfilment of the general duty of care provided in sentence 2 of subsection 276 (1) of the BGB as follows: "It means doing something which a reasonable man would not have done, or not doing something which a reasonable man would have done". He claims that similar to common law, the standard of diligence in the law of the Federal Republic of Germany is objective and its test ? bonus pater familias ? sufficiently wide, leaving ample room for legal creativity. If a tortfeasor belongs to the representatives of a profession, he or she must exhibit the diligence required from the representatives of this specific profession. As a rule, the personal limitations of the tortfeasor are not taken into consideration, which the German authors often illustrate with the example of an amateur driver, who makes a mistake of the kind which a driver with his or her experience would not have been able to avoid in the first place⁹.

Having emphasised the objective standard of the test, Markesinis adds that in pursuit of equalisation, there is still room for certain subjective elements in the determination of the existence of fault. Namely, the tortfeasor's behaviour is evaluated against the background of the behaviour of the hypothetical reasonable man who has been put in the same external situation as the person who has caused damage¹⁰.

The author of this article believes that what was mentioned above does not add a subjective element to the concept of fault from the point of view of the personal qualities and abilities of the tortfeasor.

Evaluating the justification of the concept of objective fault, Markesinis notes that the objectification of negligence is in itself an intrusion into the principle of fault, but at the same time it is needed as a factor ensuring the modern law of tort¹¹.

P. Schlechtriem maintains that it is necessary to exhibit the "required" but not the "usual" diligence. According to the prevailing theory, the general duty of care is objectified and it requires the observance of standards applied to a specific profession. Therefore, there is no individual measure on which the obligated person could rely and claim that he or she was unable to meet the standards applicable to his or her profession due to his or her insufficient training, being in a bad mood at the specific time, etc¹².

According to Schlechtriem, it is extremely debatable if the violation of these objectified standards of diligence has to be accompanied with a subjective reproach in order to presume the creation of liability. He refers to the fact that the prevailing theory does not require the subjective reproachability¹³. Based on the administration of justice and the prevailing view, the internal negligence (different from criminal law) is determined not according to the individual abilities of the tortfeasor but according to the abilities of the communication circle in which the tortfeasor acts. In most cases, the result of the objectification of internal diligence this way achieved is that the requirements come closer to external and internal diligence¹⁴. Schlechtriem adds that a new theory tends to treat the violation of objective ("external") standards of diligence only as a basis to the determination of tort ¹⁵ , while the reproach for fault must be accompanied with subjective reproachability as a violation of internal diligence¹⁶.

One of...