Fault Liability

Abstract

AbstractThe national jurisdictions of the EU Member States still consider fault as one, if not the main reason for liability. Even in more recent codifications, damages law is based on the concept of liability based on fault. Only the question whether other elements of attribution have the same or only subordinate significance is viewed differently in these jurisdictions. Certainly, it should be noted in this context that transitions between fault-based liability and strict liability are fluent. Some rules governing the reversal of the burden of proof provide that the tortfeasor must be presumed to be at fault if certain objective circumstances exist. Although fault still is the relevant reason why he is liable in this situation, the key element for liability is no longer the actor’s conduct, but often an irregularity within his control. The proximity to strict liability is particularly evident if the judge is not able to clarify whether the actor has complied with the required standard of conduct despite this irregularity. In this situation, the actor will be liable although his fault was not established. It is therefore rather a question of perspective whether we can speak of fault-based liability with a reversal of the burden of proof, or of strict liability that is alleviated by exonerability1. This question of attribution is frequently solved by the legislators integrating a relevant reversal of the burden of proof concept into a scheme of rules which clearly takes the form of either fault-based liability or strict liability. This attribution may then affect the question which requirements the actor must meet to exonerate himself.