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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.




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