Conditions of the emergence of tortle obligation in the law of foreign countries and Ukraine

Abstract

The concept and place of obligations to compensate for damage in the system of non-contractual obligations have been studied. The relationship between the concepts of the basis and the conditions for the occurrence of obligations to compensate for damage has been clarified. It is emphasized that the legislation of the vast majority of countries defines the following conditions for the occurrence of obligations to compensate for damage: 1) causing damage to a person or property; 2) illegality of the act; 3) causal connection between the illegal behavior of the delinquent and the damage caused; 4) the fault of the delinquent. However, approaches to understanding each condition differ. The understanding of the concept and types of damage in the countries of the «common law family» and «continental law family» is clarified, attention is drawn to the peculiarities of the legal regulation of moral damage compensation in certain countries, such as: Germany, France, Hungary, Bulgaria, Japan. The concept of «nominal damage» is studied, which is known in the countries of the «common law family» and is used by the court in those cases when no real damage has been caused to the plaintiff, and the lawsuit is aimed at establishing his right. Special attention is paid to the understanding of the concept of «moral damage» in different legal systems. The peculiarities of the interpretation of the concept of «unlawfulness of an act» as a condition for the emergence of obligations to compensate for damage in the legislation of foreign countries and Ukraine are analyzed. Different theories of understanding the cause-and-effect relationship between illegal action and damage, which are defined in national legislation and regulations of foreign countries, are considered. Guilt is analyzed as a condition for the occurrence of obligations to compensate for damage. It was found that the vast majority of countries determine cases of liability for causing damage without fault. It was concluded that in most countries, as well as in Ukraine, such conditions are: 1) causing damage to a person or property; 2) illegality of the act; 3) causal connection between the illegal behavior of the delinquent and the damage caused; 4) the fault of the delinquent. However, the approaches to understanding each of the conditions differ, as evidenced by the analysis of legislation, scientific opinions and judicial practice.