All entries for December 2010

December 13, 2010

Liability of parents for harm committed by their children upon others

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So as to tie in with my previous blog entry concerning the completely different- not to say the oppositional- approaches of tort in the French and English legal system, I would like to focus on the third party liability in tort- particularly with regard to the liability of parents for harm committed by their children upon others.
Within both regimes, the principles underlying a parental liability are based on the existence of a special relationship of authority and control, however in practice, the application diverges entirely.
No responsibility arises on the part of parents to restrain their children from causing harm to third parties out of the fact of their parenthood; parental liability occurs in cases of negligence during wrongdoings of their children.


So as to estimate a breach of duty, the House of Lords considers the age of the child (North v Wood) as well as the nature of the object involved, in such a way that an object, which is dangerous per se, establishes mostly a parental liability on the mere fact of allowing the child to be in possession of, for example, a weapon. (Newton v Edgerley).
However, in cases of employing objects, which only have the potential to be dangerous if mishandled by its user, a simple duty to warn and instruct without the further demand to supervise, consists. (Donaldson v McNiven)

Without doubt, in contrast to the broad limitation of parental liability under English law, whereupon family harmony is being treated as sacrosanct, the victim oriented approach of the French system offers a strict and much more radical trait by implementing a general regime of no-fault liability for the acts of others. Since the Bertrand decision, parental liability was no longer based on the duties to educate and supervise; from now on, the only defences available to parents under Art.1384 IV CC would be those of force majeure and contributory negligence.



December 11, 2010

Law of tort or law of torts?

Writing about web page Donoghue v Stevenson, Branly

Within the final two blog entries, I would like to draw my attention to the law of tort- particularly with regard to the question, if a general principle of liability for intentional and negligent conduct or only groups of circumstances, in which tortious liability arises, exist in the particular legal systems of Europe. In order to perceive the gaping differences, the extraordinarily broad scope of the general principle of tortious liability in French law, which scarcely imposes any limitations relating to the variety of rights or persons that are protected, just as the narrowness of the English system’s nominated torts, should be illustrated by the example of duty of care for omissions.

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The idea of omission is inevitably intertwined with the concept of negligence, which provides a wide scope of protection within the closed English system of torts, created entirely by case law. The query, whether an individual owes even strangers a duty of care, and complies with the requirements of liability under negligence, has been responded in
Donoghue v Stevenson, whereupon a general duty to take reasonable care in actions or omissions, by which a wrongdoer breaches a positive duty to act, so as not to cause harm to someone close, has been established.
However, English law doesn’t impose liability for pure omissions, since no duty of care exists to minimise or prevent harm to another individual.

Meanwhile, in the French law of tort, which is contained in a mere five articles of the Code civil (Art.1382-86), the scope of liability for abstentions within an action, as well as pure omissions was greatly expanded by the decision of the Branly case, which could be considered as being an example of the French approach’s broadness and unpredictability. Accordingly, an abstention gives rise to liability when the omitted act should have been done either by virtue of a legal, statutory or contractual obligation.




December 06, 2010

La “cause” en droit français

Writing about web page cause

I would like to focus the today’s blog entry on the additional requirement of “cause” within the conclusion of contract under French law- particularly with regard to the oppositional development of the German and French legal systems, in spite of being rooted in Roman law.

Under Roman law, a sole contractual agreement “conventio” couldn’t constitute a claim. The simple delivery of the goods “traditio” supplies the purchaser with property in cases, where the transfer of property was effected “ex iusta causa” i.e. in order to justify the transfer of ownership, a legal foundation is required.

The attempt to obtain a legal system, based upon a law of reason, as well as a connection between statute law and common law, which was being handed down in the North of France, was already behind the first bill of the Code Civil during the 17th century.
The notion of “cause”, which constitutes one of the decisive factors concerning the validity of a contract in French law, contains not only the motive, which induced a party to incur a liability, but also the pursued intention. Consequently, an obligation is void in cases, where an illegal “cause” underlies a transaction, due to a contravention, respectively a violation of public policy and morality (Art.1131 Code Civil)

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Compared with this, at the time, on which the BGB arose, the German law abandon the notion of “cause” within the contract, which appears now in cases of unjust enrichment, § 812BGB; concerning the conclusion of contract, the merely agreement suffices.

Nevertheless, under French law, the contents of contract are split into two parts by the further requirements of “cause” and “objet”. Furthermore, the condition of „cause“ is only legislatory relevant to the prevention of contracts, based on an illegal “cause”, which is in German law regulated by the imagination of the legal and moral subject matter of contract, §§ 134,138 BGB.


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