Should Wrongfulness be Required or is Fault Enough? Arts 1:101, 4:101 ff PETL

Abstract

Abstract When drafting the Principles of European Tort Law (PETL), the members of the European Group on Tort Law decided to omit wrongfulness as a specific requirement for civil liability, considering it as a concept underlying the notions of interference with legally protected interests and the standard of conduct. This paper tends to demonstrate that this terminological and conceptual choice is still valid eighteen years after the publication of the PETL. On the basis of two case studies examined under German and French law, it is suggested that national traditions are too disparate to adopt a common understanding of what wrongfulness exactly means to a tort lawyer in Europe. The irreconcilability of the different interpretations becomes particularly apparent in mixed tort law systems, such as Japan or Belgium, where the French and the German approach struggle to coexist.