Liability for Harm Caused by Things

Abstract

Though they are based on these common inspirations, the regimes of liability for things vary throughout Europe. In certain areas, EC legislation or international conventions have induced the development of harmonized regimes, as in the cases of products liability, liability for injury resulting from commercial aviation, and liability for accidents involving nuclear plants. Yet, the European regimes cover a broad spectrum of approaches to strict liability, from attaching strict liability to the mere control over an object or facility (as in the French notion of custodial liability) to the rebuttable presumption of fault on the part of the defendant-owner (as in the German view of liability for injury due to defective buildings) to the application of a highly fact-specific analysis for statutory liability (as in the English reliance on the Occupiers’ Liability Acts). For example, the principle of fault-based liability is so well entrenched in German and English law that regimes of liability not based on personal wrongful conduct are framed as exceptions that must be introduced by the legislature. French law has taken a different course, with the French Cour de cassation establishing liability for things under one’s garde as a general regime of liability without fault (Article 1384 CCfr), next to the general clause of liability based on fault (Article 1382 C. Civ). The present chapter begins with an analysis focused on the legal systems of Germany, France and England (Part I). Despite the limits of this admittedly limited and conventional choice, it will be adhered to because the laws of these jurisdictions remain useful representatives of three main approaches to liability for things in Europe. The inquiry will then target the current rules proposed by the European Group on Tort Law as well as those proposed by the Study Group for a European Civil Code (Part II). The chapter will conclude with an assessment of the convergence that such rules may be able to achieve, as well as their desirability and political feasibility (Part III).