Fault as the basis of delictual liability
(a) Th omasi us
But why should the obligation to make good the damage anse only in case of fault? This is by no means as self-evident (or "natural") as Grotius' magisterial assertion makes it sound.
If the basic precept is "alterum non laedere", strict liability based merely on the fact that one person caused the other damage may well be seen to be the more appropriate consequence. This was, in fact, the point of view adopted by Thomasius. "Aequum non solum, sed et justum est, ut damnum casu datum resarciam", he postulated[5380] [5381] [5382] [5383] [5384] and proceeded to give the following example. While visiting a friend, my attention is drawn to a very valuable crystal glass of his. Admiringly I turn the glass around in my hands, when suddenly something entirely unforeseen happens, which frightens both me and my friend out of our wits. As a result I drop the glass, which breaks into pieces. Who has to carry the loss? I do, according to Thomasius, for without my interference (however innocent it was) the glass would still be whole:"Sufficit, quod factum meum dominus adversus me allegare possit. Nam si vitrum non sumsissem in manus, non etiam id fuisset fractum. Quam innocens igitur sit curiositas mea, mea tameti est, non domini vitri."22*
Looked at merely from the point of view of the injured party, this argument is certainly not unconvincing. In a way, the person dropping the glass is indeed "closer" to the loss."29
(b) Grotius, Pufcndorf and others
Grotius, Pufendorf and most of the other natural lawyers, however, took a different perspective. Focusing their attention on the injuring (rather than the injured) party, they emphasized the duty aspect of the matter.23" A person can be held liable only if he has done what he ought not to have done, or if he has not done what he ought to have done.
The damage, in Pufendorf's terminology, must have been "imputable" to the person who had caused the damage. Such imputation,23r in turn, required a free and moral action; and that implied, inter alia, that the acting party had to be able to foresee the consequences and to recognize the wrongfulness of what he was doing (or failing to do).[5385] [5386] Liability for damages required an avoidable deviation from the path of lawful behaviour—"defectus rectitudinis actionis... vincibilis", in the words of Christian WolfP[5387]—and was thus based on fault. Purely accidental loss, on the other hand, had to be carried by whoever had been hit by it—entirely in accordance with the maxim "casus a nullo praestantur".[5388] It was the latter view that commended itself to the draftsmen of the codifications, in which the age of the law of reason culminated, and thus we find fault ifaute, Verschulden) as the cornerstone of delictual liability in the two famous general clauses of § 1295 ABGB and art. 1382 code civil.[5389](c) Nineteenth-century legal science
In the course of the 19th century, the principle that liability is based on fault acquired the status of an unquestionable, axiomatic truth. For even though Grotius (and the other natural lawyers) had not referred to Roman law,[5390] the fault principle commended itself to the pandectists for a whole variety of reasons.[5391] It tied in with the basic precepts of Kant's moral philosophy[5392] (as adopted by Savigny,[5393] the founder of the historical school of jurisprudence), it fitted the prevailing economic liberalism240 and served the interests of expanding industry and of the rising middle class:[5394] it was seen to provide adequate protection without unduly restricting the freedom of the individual will or hampering entrepreneurial activities.[5395] Apart from that, it did not prove too difficult to reconcile it with the Roman sources: Aquilian liability had been based on culpa anyway, and instances of a stricter form of liability could, somehow or other, also be made to fit the picture that was painted of a triumphal march of the fault principle through Roman law.[5396] The idea that there can be no liability without fault was seen to be both the product and the symbol of a high stage of cultural development.
Thus, of course, it underlies the provisions on the law of delict of that apotheosis of 19th-century legal thinking, the BGB. "The fault-principle", its draftsmen argued,[5397]"is of central importance for the delineation of the spheres of rights within which the citizens can develop their individuality. In determining whether or how to act, one should have to take account of the legal interests of others only if the requisite forethought suggests that they may be affected. If after careful reflection an act seems to present no danger to others, one should be free to do it, and if it nevertheless causes harm to someone else's legal rights, that person must put up with it just as if it were an accident."
Strict liability had thus been (almost) entirely removed from the province of the "proper" law of delict; and since the dogmatic category of the "quasi-delicts" had become obsolete in the course of time, isolated instances of no-fault liability were thought of as anomalous and exceptional[5398] and remained for a long time outside the mainstream of private-law legal theory. We still have to battle today with the consequences of this ahistorical dogmatism.[5399]
4.
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- § 69 The legal institutions of Rome of the archaic and pre-classical epoch might well serve as the basis for a course in Roman law.
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