The Principle of Trust for Exceptions to the Non-Regression Clause in the Case of Delict of Negligence

• Author: Laura Feldmanis
• Pages: 86-94

86 JURIDICA INTERNATIONAL 28/2019

Laura Feldmanis

PhD

State Prosecutor

The Principle of Trust

for Exceptions to the

Non-Regression Clause in the

Case of Delict of Negligence

1. Introduction

The Estonian Penal Code describes the cases in which a person is to be held responsible for the conse-

quences of the acts committed directly by said person and the cases in which contributing to an act commit-

ted by another person is punishable. A delict of negligence and intentional delict are governed di erently

by the Penal Code. These are two distinct types of delict, which are subject to separate sets of rules for

determining the grounds for liability. The above is based on the fact that, while the person in the case of an

intentional delict has decided to commit an o ence, a delict of negligence is characterised by a careless and

irresponsible act that realises the elements of an o ence.*1 Sections 21 and 22 of the Penal Code establish

the commission of an o ence in the form of participating, aiding, or abetting but only if the person’s acts are

intentional. The phrasing of the Penal Code indicates also that the commission of a joint criminal o ence

is possible only in the case of intentional acts. In addition, it is stated that the commission of an o ence by

intermediation can take place only if the person taking advantage acted intentionally, foreseeing the forma-

tion of the elements of an o ence.*2 The answer to the associated questions appears to be simple, but the

issue of the scope of the duty of care remains.

In the event of carelessness, the principle of a single o ender applies, on the basis of which anyone who

commits an act covered by the description of the elements of an o ence of a delict of negligence by violat-

ing the duty of care is an o ender.*3 It can also be stated that the legislator intended to apply liability only

in specifi c, well-defi ned cases where the relevant person is an accomplice in the commission of an o ence

by another person by dint of carelessness. This is, for example, evident from Section 419 of the Penal Code,

which articulates the liability for the negligent storage of a fi rearm if said fi rearm has been used to commit

an o ence. If there is no specifi c provision of the law indicating otherwise, the person is not held liable, as

any liability for negligence would become indefi nable otherwise and would be in confl ict with the intentions

of the legislator. This approach cannot be supported, as negligence is defi ned with reference to violation of

the duty of care and this person is to be held liable if said violation leads to a consequence specifi ed by law.

 J. Sootak, P. Pikamäe. Karistusseadustik. Komm väljaanne (Penal Code. Commented Edition), th ed. Tallinn: Juura ,

§/ .

 Ibid., §/ ..

 Ibid., §/ .

https://doi.org/10.12697/JI.2019.28.10