November 30, 2011

Tort and contract

Interestingly enough I was expecting reading on the tort systems of France, Germany and England to have distinct objectives. As the reading revealed to me, the goals are quite similar and can even be considered common to all legal orders: compensation, deterrence and loss-spreading.

However, as I suspected and as the text proved, the weighting given to each of these is differs from country to country. Thus, French tort law is a lot more paternalistic and focuses much more on preventing the occurrence of socially undesirable behavior. By contrast, German law has a more rights-based speech, a trait well-engrained in the German legal culture.

Seemingly the fact French law does not recognize either a neighbor principle or a fixed list of protected legal interests. At first hand it would appear as being extremely broad and highly susceptible to the English “floodgates” argument. Without having specific knowledge of any precise cases or classes of torts (such as defamation or trespass to the person), I suspect French law answers the “floodgates” concern with a stricter interpretation of the other requirements for a successful tort action. Hence notions such as damage or causation can be interpreted in ways that would limit the number of claimants.

Distinct to this general regime of tortious liability, in French law, is the tort of defamation. Defamation in French law is mostly governed by provisions of criminal law. The civil liability however is dealt with in the law concerning defamation rather than the general principle of liability. Again, without having looked into it too deeply, I believe it stems from a desire to provide a better balance between freedom of speech and protection of one’s honor and reputation. I think a comparison of all three legal systems and their approach to defamation would give a solid insight in how they conduct the right-interest balancing act.


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