Principles of European Law on Non-Contractual Liability ... · PDF fileNon-Contractual...

Principles of European Law onNon-Contractual Liability Arising out

of Damage Caused to Another(PEL Liab. Dam.)

Principles of European LawStudy Group on a European Civil Code

Non-Contractual Liability Arising out of Damage Caused to Another

(PEL Liab. Dam.)

prepared by Professor Christian v. Bar, OsnabrückChairman of the Working Team on Extra-contractual Obligations

with advice from the Advisory Council and the Drafting Committeeapproved by the Co-ordinating Group

Particular advice on the drafting of the Articles fromProfessor John Blackie, Strathclyde, Professor Eric Clive, Edinburgh, and Dr. Stephen Swann, Osnabrück

Translation: Dr. Stephen Swann, Pádraic McCannon and Susan Singleton, Osnabrück

The Osnabrück Working TeamBegoña Alfonso de la Riva (Spanish law, August 1999-August 2003),Dr. Erwin Beysen (Belgian, French and Luxemburgian law 1999-November 2006),Sandie Calme (Belgian, French and Luxemburgian law (since January 2007),Dr. Evlalia Eleftheriadou (Greek law), Silvia Fedrizzi (Italian law, August 1999-October 2000),Dr. Andreas Fötschl (Austrian law, August 1999-April 2005),Dr. Caterina Gozzi (Italian law, February 2001-January 2008),Lodewijk Gualthérie van Weezel (Dutch law, February 2001-August 2002),Dr. Annamaria Herpai (Hungarian law, since October 2003),Dr. Matthias Hünert (German law),Dr. Stefan Kettler (Irish law, November 1999-August 2001),Ina El Kobbia (organisation and minutes for the Co-ordinatingGroup and the Advisory Council), Rosalie Koolhoven (Dutch law, since March 2003),Dr. María Ángeles Martín Vida (Spanish law, September 2003-January 2006),Pádraic McCannon (Irish and Scots law, August 2006-December 2007),Dr. Mary-Rose McGuire (Austrian law, since May 2005),Paul McKane (Irish and Scots law, August 2005-July 2006),Philip Mielnicki (Nordic laws, since February 2007),Franz Nieper (Dutch law, November 1999-October 2000),José Carlos de Medeiros Nóbrega (Portuguese law, August 1999-December 2005and January 2008-December 2008), Sandra Rohlfing (Working Team rapporteur),Johan Sandstedt (Nordic laws, April 2001-December 2006),Marta Lívia dos Santos Silva (Portuguese law, August 2005-September 2007),Dr. Mårten Schultz (Nordic laws, January 2000-March 2001),Susan Singleton (Irish law, since January 2008), Daniel Smith (took care of the Master Copy),Dimitar Stoimenov (Bulgarian and Slovenian law, since October 2005),Dr. Stephen Swann (English law), Ferenc Szilágyi (Romanian law, since July 2005) andCarles Vendrell Cervantes (Spanish law, since June 2006).

The Advisory Council on Non-contractual Liability Law for DamageProfessor John W. Blackie (Strathclyde), Professor Carlo Castronovo (Milan),Professor Eugenia Dacoronia (Athens), Professor Bénédicte Fauvarque-Cosson (Paris),Professor Jan Kleineman (Stockholm, until June 2003), Professor Denis Mazeaud (Paris),Professor Guillermo Palao Moreno (Valencia), Professor Edgar du Perron (Amsterdam).

The Co-ordinating GroupProfessor Guido Alpa (Genua/Rome, until May 2005),Professor Kaspars Balodis (Riga, December 2004 until December 2006),Professor Christian von Bar (Osnabrück, chairman),Professor Maurits Barendrecht (Tilburg, until May 2005), Professor Hugh Beale (Warwick),Dr. Mircea-Dan Bob (Cluj Napoca, since June 2007),Professor Michael Joachim Bonell (Rome),Professor Mifsud G. Bonnici (Valetta, since December 2004),Professor Carlo Castronovo (Milan), Professor Eric Clive (Edinburgh),Professor Eugenia Dacoronia (Athens), Professor Ulrich Drobnig (Hamburg),Professor Bénédicte Fauvarque-Cosson (Paris),Professor Marcel Fontaine (Louvain La Neuve, until December 2003),

Professor Andreas Furrer (Lucerne, since December 2003),Professor Jacques Ghestin (Paris), Professor Sir Roy Goode (Oxford, until December 2002),Professor Viggo Hagstrøm (Oslo, since June 2002),Professor Arthur Hartkamp (The Hague, until December 2002),Supreme Court Judge Torgny Håstad (Stockholm),Professor Johnny Herre (Stockholm), Professor Martijn Hesselink (Amsterdam),Professor Ewoud Hondius (Utrecht, until May 2005),Professor Jérôme Huet (Paris), Professor Giovanni Iudica (Milan, since June 2004),Dr. Monika Jurcova (Trnava, since June 2006),Professor Konstantinos Kerameus (Athens), Professor Ole Lando (Copenhagen),Professor Kåre Lilleholt (Oslo, since June 2003),Professor Brigitta Lurger (Graz), Professor Hector MacQueen (Edinburgh),Professor Denis Mazeaud (Paris, since June 2005),Professor Ewan McKendrick (Oxford),Professor Valentinas Mikelenas (Vilnius, since December 2004),Professor Eoin O’Dell (Dublin, until June 2006), Professor Edgar du Perron (Amsterdam),Professor Denis Philippe (Leuven, since June 2004),Professor Jerzy Rajski (Warsaw), Professor Christina Ramberg (Gothenburg),Professor Philippe Rémy (Poitiers, until June 2005), Supreme Court JudgeProfessor Encarna Roca y Trias (Madrid/Barcelona),Professor Peter Schlechtriem† (Freiburg i. Br.),Professor Martin Schmidt-Kessel (Osnabrück, since December 2004),Professor Jorge Sinde Monteiro (Coimbra, until December 2004),Professor Lena Sisula-Tulokas (Helsinki), Professor Sophie Stijns (Leuven),Professor Matthias Storme (Leuven), Dr. Stephen Swann (Osnabrück),Professor Christian Takoff (Sofia, since June 2007),Professor Lubos Tichy (Prague, since June 2005),Professor Verica Trstenjak (Maribor, until December 2006),Professor Vibe Ulfbeck (Copenhagen, since June 2006),Professor Paul Varul (Tartu, since June 2003), Professor Lajos Vékás (Budapest),Professor Anna Veneziano (Teramo).

Further Members of the Study Group’s Advisory CouncilsProfessor Michael G. Bridge (London, Property Law and Security),Professor Angel Carrasco (Toledo, Security), Professor Pierre Crocq (Paris, Security),Professor Júlio Manuel Vieira Gomes (Oporto, Unjustified enrichment law and Benevolentintervention in another’s affairs), Professor Helmut Grothe (Berlin, Lease of goods),Professor Irene Kull (Tartu, Lease of goods, Donation, Trust law),Professor Marco Loos (Amsterdam, Service contracts; Mandate),Professor Graham Moffat (Warwick; Trust Law, since May 2006),Professor Maria A. L. Puelinckx-van Coene (Antwerp, Donation),Dr. Kristina Siig (Arhus, Unjustified enrichment law and Benevolent intervention inanother’s affairs), Professor Stefano Troiano (Verona, Donation),Professor Antoni Vaquer Aloy (Lleida, Lease of goods, Donation),Professor Alain Verbeke (Leuven and Tilburg, Lease of goods),Professor Anders Victorin† (Stockholm, Lease of goods),Professor Sarah Worthington (London, Lease of goods).

ISSN 1860-0905ISBN 978-3-7272-1807-1 (Stämpfl i)ISBN 978-2-8027-2559-6 (Bruylant)ISBN 978-3-935808-63-7 (sellier. european law publishers)

The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografi e; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de.

© 2009 by sellier. european law publishers GmbH, Munich together withStudy Group on a European Civil Code.

All rights reserved. No part of this publication may be reproduced, translated, stored in a retrie-val system or transmitted, in any form or by any means, electronic, mechanical, photo-copying, recording or otherwise, without prior permission of the publisher.

Design: Sandra Sellier, Munich. Production: Karina Hack, Munich. Typesetting: fi dus Publika-tions-Service GmbH, Nördlingen. Typeface: Goudy Old Style and Goudy Sans from Linotype. Printing and binding: Friedrich Pustet KG, Regensburg. Printed on acid-free, non-ageing paper. Printed in Germany.

Volume 7

To be cited as: PEL / von Bar, Liab. Dam., Chapter 1, Introduction, A, 1 PEL / von Bar, Liab. Dam., Chapter 1, Article 1:101, Comments, A, 1 PEL / von Bar, Liab. Dam., Chapter 1, Article 1:101, Notes, I, 1

vii

Foreword

The Study Group on a European Civil Code has taken upon itself the task of draftingcommon European principles for the most important aspects of the law of obligations andfor certain parts of the law of property in moveables which are especially relevant for thefunctioning of the common market. It was founded in 1999 as a successor body to theCommission on European Contract Law, on whose work the Study Group is building.

Both groups have undertaken to ascertain and formulate European standards of ‘patri-monial’ law for the Member States of the European Union. The Commission on Euro-pean Contract has achieved this for the field of general contract law (Lando and Beale[eds.], Principles of European Contract Law, Parts I and II combined and revised, TheHague, 2000; Lando/Clive/Prüm/Zimmermann [eds.], Principles of European ContractLaw Part III, The Hague, 2003). These Principles of European Contract Law (PECL)are being adopted with adjustments by the Study Group on a European Civil Code totake account of new developments and input from its research partners. The Study Groupis itself dovetailing its principles with those of the PECL, extending their encapsulationof standards of patrimonial law in three directions: (i) by developing rules for specifictypes of contracts; (ii) by developing rules for extra-contractual obligations, i. e. the lawof non-contractual liability arising out of damage caused to another (tort /delict), the lawof unjustified enrichment, and the law of benevolent intervention in another’s affairs(negotiorum gestio); and (iii) by developing rules for fundamental questions in the law onmobile assets – in particular transfer of ownership, security for credit, and trust.

Like the Commission on European Contract Law’s Principles of European Contract Law,the results of the research conducted by the Study Group on a European Civil Code seekto advance the process of Europeanisation of private law. We have undertaken thisendeavour on our own personal initiative and merely present the results of a pan-Euro-pean research project. It is a study in comparative law in so far as we have always takencare to identify the legal position in the Member States of the European Union and to setout the results of this research in the introductions and notes. That of course does notmean that we have only been concerned with documenting the pool of shared legalvalues or that we simply adopted the majority position among the legal systems wherecommon ground was missing. Rather we have consistently striven to draw up “sound andfitting” principles, that is to say, we have also recurrently developed proposals and con-cepts for the further development of private law in Europe.

The working methods of the Commission on European Contract Law and the StudyGroup on a European Civil Code were likewise quite similar. The Study Group, however,has had the benefit of Working (or Research) Teams – groups of younger legal scholarsunder the supervision of a senior member of the Group (a Team Leader) which undertookthe basic comparative legal research, developed the drafts for discussion and assembledthe extensive material required for the notes. Furthermore, to each Working Team was

Foreword

viii

allocated a consultative body – an Advisory Council. These bodies – deliberately keptsmall in the interests of efficiency – were formed from leading experts in the relevantfield of law who are representative of the major European legal systems. The proposalsdrafted by the Working Teams and critically scrutinised and improved in a series ofmeetings by the respective Advisory Council were submitted for discussion on a revolv-ing basis to the actual decision-making body of the Study Group on a European CivilCode, the Co-ordinating Group. Until June 2004 the Co-ordinating Group consisted ofrepresentatives from all the jurisdictions belonging to the EU immediately prior to itsenlargement in Spring 2004 and in addition legal scholars from Estonia, Hungary, Nor-way, Poland, Slovenia and Switzerland. Representatives from the Czech Republic, Malta,Latvia, Lithuania and Slovakia joined us after the June meeting 2004 in Warsaw.

Besides its permanent members, other participants in the Co-ordinating Group withvoting rights included all the Team Leaders and – when the relevant material was upfor discussion – the members of the Advisory Council concerned. The results of thedeliberations during the week-long sittings of the Co-ordinating Group were incorpo-rated into the text of the Articles and the commentaries which returned to the agenda forthe next meeting of the Co-ordinating Group (or the next but one depending on thework load of the Group and the Team affected). Each part of the project was the subjectof debate on manifold occasions, some stretching over many years. Where a unanimousopinion could not be achieved, majority votes were taken. As far as possible the Articlesdrafted in English were translated into the other languages either by members of theTeam or third parties commissioned for the purpose. The number of languages into whichthe Articles could be translated admittedly varies considerably from volume to volume.That is in part a consequence of the fact that not all Working Teams were equipped withthe same measure of financial support. We also had to resign ourselves to the absence of aperfectly uniform editorial style. Our editing guidelines provided a common basis forscholarly publication, but at the margin had to accommodate preferences of individualteams. However, this should not cause the reader any problems in comprehension.

Work on this series of Principles of European Law had begun long before the EuropeanCommission published its Communication on European Contract Law (in 2001), itsAction Plan for a more coherent European contract law (in 2003), and its follow-upCommunication “European Contract Law and the revision of the acquis: the way for-ward” (in 2004). These documents for their part were published before we formed theNetwork of Excellence, together with other European research groups and institutions,which have been collaborating in the preparation of an Academic Common Frame ofReference with the support of funds from the European Community’s Sixth ResearchFramework Programme. This network has published an outline edition of its researchresults: as a first step, in 2008, an interim outline edition (von Bar/Clive/Schulte-Nölke etal. [eds.], Principles, Definitions and Model Rules of European Private Law. Draft Com-mon Frame of Reference (DCFR). Interim Outline Edition, Munich 2008); and, withrevisions and additions, a final outline edition this year (von Bar/Clive/Schulte-Nölke etal. [eds.], Principles, Definitions and Model Rules of European Private Law. Draft Com-mon Frame of Reference (DCFR). Outline Edition, Munich 2009). A final and fulledition is in preparation for publication in 2009. The texts laid before the public by theStudy Group on a European Civil Code are integrated into these latter texts. However,

Foreword

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the extensive comparative law introductions and the translations of the Articles of theBook or Part concerned into the other languages of the Member States are only beingpublished in the PEL Series. Moreover, there are occasionally small discrepancies be-tween the model rules published in this series and those of the Draft Common Frame ofReference because each publication within the PEL Series was conceived and prepared asa self-contained treatment of the field, while in the consolidated composite DCFR textcertain provisions could be trimmed. Repetitions could be avoided. It was also possible torespond to criticism which had been made of the model rules in the PEL Series in themeantime and which had convinced us of the need to make changes.

In order to leave no room for misunderstanding, it is important to stress that thesePrinciples have been prepared by impartial and independent-minded scholars whose soleinterest has been a devotion to the subject-matter. None of us have been rewarded fortaking part or mandated to do so. None of us would want to give the impression that weclaim any political legitimation for promoting harmonisation of the law. Our legitima-tion is confined to curiosity and an interest in Europe. In other words, the volumes in thisseries are to be understood exclusively as the results of scholarly legal research withinlarge international teams. Like every other scholarly legal work, they restate the currentlaw and introduce possible models for its further development; no less, but also no more.We are not a homogenous group whose every member is an advocate of the idea of aEuropean Civil Code. We are, after all, only a Study Group. The question whether aEuropean Civil Code is or is not desirable is a political one to which each member canonly express an individual view.

Osnabrück, April 2009 Christian v. Bar

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Our Sponsors and Donors

The project of the Study Group on a European Civil Code represents a research endea-vour in legal science of extraordinary magnitude. Without the generous financial supportof many organisations and individuals its realisation would not have been possible.

Our thanks go first of all to the Deutsche Forschungsgemeinschaft (DFG), which suppliedthe lion’s share of the financing for the first phase of this project, including the salaries ofthe Working Teams based in Germany and the direct travel costs for the meetings of theCoordinating Group and the numerous Advisory Councils. The work of the DutchWorking Teams was financed by the Nederlandse Organisatie voor Wetenschappelijk On-derzoek (NWO). Further personnel costs were met by the Flemish Fonds voor Wetenschap-pelijk Onderzoek-Vlaanderen (FWO), the Onassis-Foundation, the Austrian Fonds zur För-derung der wissenschaftlichen Forschung, Norges forskningsråd (the Research Council ofNorway) and the Fundação Calouste Gulbenkian. From the middle of 2005 funds weremade available to us under the mantle of the ‘CoPECL’ Network of Excellence estab-lished under the European Union’s Sixth Framework Programme for Research and Tech-nological Development.

In addition we have consistently been able to fall back on funds made available to therespective organisers of the eighteen week long sittings of the Coordinating Group by therelevant university or other sources within the country concerned. It is therefore with thedeepest gratitude that we must also mention the Consiglio nazionale forense (Rom) and theIstituto di diritto privato of the Università di Roma La Sapienza, which co-financed themeeting in Rome (June 2000), which followed our inaugural meeting in Utrecht (De-cember 1999). The session in Salzburg (December 2000) was supported by the AustrianBundesministerium für Bildung, Wissenschaft und Kultur, the Universität Salzburg and theInstitut für Rechtspolitik of the Universität Salzburg. The discussions in Stockholm (June2001) were assisted by the Department of Law, Stockholm University, the Supreme CourtJustice Edward Cassel’s Foundation and Stiftelsen Juridisk Fakultetslitteratur (SJF). The meet-ing in Oxford (December 2001) had the support of Shearman [&] Sterling, the HulmeTrust, Berwin Leighton Paisner and the Oxford University Press (OUP). The session inValencia (June 2002) was made possible by the Asociación Nacional de Registradores dela Propiedad, Mercantil y Bienes Muebles, the Universitat de València, the Ministerio Españolde Ciencia y Tecnología, the Facultad de Derecho of the Universitat de València, the Depar-tamento de Derecho Internacional, Departamento de Derecho Civil and the Departamento deDerecho Mercantil “Manuel Broseta Pont” of the Universitat de València, the law firmCuatrecasas, the Generalitat Valenciana, the Corts Valencianes, the Diputación Provincialde Valencia, the Ayuntamiento de Valencia, the Colegio de Abogados de Valencia and Ara-nzadi Publishing Company. The subsequent meeting in Oporto (December 2002) wassubstantially assisted by the Universidade Católica Portuguesa – Centro Regional do Porto.For the week long session in Helsinki (June 2003) we were able to rely on funds fromSuomen Kultuurirahasto (Finnish Cultural Foundation), the Niilo Helanderin Säätiö (Niilo

Our Sponsors and Donors

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Helander Foundation), the Suomalainen Lakimeisyhdistys (Finnish Lawyers Association),the Ministry of Justice and the Ministry for Foreign Affairs, the Nordea Bank, RoschierHolmberg Attorneys Ltd., Hannes Snellman Attorneys Ltd., the Department of Private Lawand the Institute of International Commercial Law (KATTI) of Helsinki University. Thesession in Leuven (December 2003) was supported by Katholieke Universiteit Leuven,Faculteit Rechtsgeleerdheid, and the FWO Vlaanderen Fonds voor Wetenschappelijk Onder-zoek (Flanders Scientific Research Fund). The meeting of the Group in Warsaw (June2004) was substantially assisted by the Fundacja Fundusz Wspolpracy (The CooperationFund) and the Faculty of Law and Administration of Warsaw University. The meeting inMilan (December 2004) was supported by the Università Bocconi and its Istituto di dirittocomparato, by the Milan Camera di Commercio, by the Associazione Civilisti Italiani and bythe Comune di Milano. The meeting in Berlin (June 2005) was made possible by Price-waterhouseCoopers Deutschland AG, Frankfurt/Berlin; Sievert AG [&] Co., Osnabrück,and by Verband deutscher Hypothekenbanken e. V., Berlin. The meeting in Tartu (Decem-ber 2005) was supported by the University of Tartu, its Faculty of Law, its Institute of Lawand its Institute of Private Law, by the Estonian Supreme Court, the Ministry of Justice, theTartu City Government, Iuridicum Foundation, the Law Offices Concordia, Lepik [&] Lu-haäär, Luiga Mody Hääl Borenius, Ots [&] Co, Aivar Pilv, Aare Raig, Raidla [&] Partners,Sorainen, Tark [&] Co, Teder Glikman [&] Partners, Paul Varul, Alvin Rödl [&] Partner andLextal Law Firm. The meeting in Oslo (June 2006) was made possible by the kongeligeJustis- og Politidepartement (The Royal Ministry of Justice), by Sigvald Bergesen d. y., byhustru Nankis Almennyttige stiftelse, Storebrand and the law firms Wiersholm and BA-HR.The meeting in Lucerne (December 2006) was sponsored by Schulthess Publishing Com-pany, by Schweizerischer Nationalfonds and by the Universität Luzern, the meeting in Bu-dapest (June 2007) by Eötvös Loránd Tudományegyetem (Eötvös Loránd University), byMagyar Tudományos Akadémia (the Hungarian Academy of Sciences), by MOL MagyarOlaj- és Gázipari Nyrt (the Hungarian Oil [&] Gas Company) and by Szalma [&] PartnereiÜgyvédi Iroda (Szalma [&] Partners Attorneys at Law), and the meeting in Prague (De-cember 2007) by Ceská advokátní komora (the Czech Bar Association), White [&] CasePrague, Squire, Sanders [&] Dempsey, Prague, Ladislav Krym, Attorney at Law, Prague, JanBroz, Attorney at Law, Prague and the Representation of the European Commission inPrague. Our final meeting in Athens (June 2008) had the support of the Stavros NiarchosFoundation, the National and Kapodistrian University of Athens, the Union of Greek CivilLaw Jurists and the Municipality of Athens. We thank all of these organisations andinstitutions for the funds which they made available to us and for the extraordinarywarmth of hospitality with which our hosts received us.


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Preface to this volume

This text on the law of extra-contractual liability for damage caused to another was thesubject of deliberation by the Coordinating Group of the Study Group on a EuropeanCivil Code at its week-long meetings in Utrecht (December 1999), Rome (June 2000),Stockholm (June 2001), Oxford (December 2001), Valencia (June 2002), Leuven (De-cember 2003), Warsaw (June 2004), Berlin (June 2005) and Tartu (December 2005).This followed detailed discussions with the Working Team’s Advisory Council. TheWorking Team, for its part, prepared under my management the initial drafts and inte-grated the improvements recommended (on occasions only after a vote) at the variouslevels of expert deliberation. It is on this basis that I have composed the comparativelegal introductions, the comments to the individual Articles and the notes setting outcurrent national law. I am deeply indebted to the members of our Osnabrück WorkingTeam and to Dr. Roman Trzaskowski (Warsaw) for the material which has enabled this.They have carried the main burden of the research work and without them this bookwould not have been possible.

The title of this volume “Non-contractual liability arising out of damage caused toanother” was suggested by Professor Eric Clive, Edinburgh. We have gratefully taken itup. The expression “tort law” is too tied to the Common Law tradition, while “law ofdelict” is too closely allied to the latin tradition and, moreover, no longer entirelycorrect, semantically considered, in view of the widespread forms of liability withoutintention or negligence.

Wherever possible the legislation, case law and academic works are considered and citedas they stood at June 2008.


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Short Table of Contents

Text of Articles 1

Principles of European Law onNon-Contractual Liability Arising out of Damage Caused to another

Chapter 1:Fundamental provisions

Introduction 229

Article 1:101: Basic rule 243Article 1:102: Prevention 265Article 1:103: Scope of application 274

Chapter 2:Legally relevant damage 299

Section 1: GeneralArticle 2:101: Meaning of legally relevant damage 303

Section 2: Particular instances of legally relevant damageArticle 2:201: Personal injury and consequential loss 359Article 2:202: Loss suffered by third persons as a result of another’spersonal injury or death 389Article 2:203: Infringement of dignity, liberty and privacy 418Article 2:204: Loss upon communication of incorrect informationabout another 443Article 2:205: Loss upon breach of confidence 467Article 2:206: Loss upon infringement of property or lawful possession 478Article 2:207: Loss upon reliance on incorrect advice or information 510Article 2:208: Loss upon unlawful impairment of business 520Article 2:209: Burdens incurred by the state upon environmental impairment 529Article 2:210: Loss upon fraudulent misrepresentation 538Article 2:211: Loss upon inducement of non-performance of obligation 546


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Chapter 3:Accountability

Introduction 557

Section 1: Intention and negligenceArticle 3:101: Intention 568Article 3:102: Negligence 580Article 3:103: Persons under eighteen 601Article 3:104: Accountability for damage caused by children orsupervised persons 613

Section 2: Accountability without intention or negligenceArticle 3:201: Accountability for damage caused by employeesand representatives 632Article 3:202: Accountability for damage caused by the unsafe state ofan immovable 656Article 3:203: Accountability for damage caused by animals 673Article 3:204: Accountability for damage caused by defective products 686Article 3:205: Accountability for damage caused by motor vehicles 703Article 3:206: Accountability for damage caused by dangerous substancesor emissions 718Article 3:207: Other accountability for the causation of legallyrelevant damage 735Article 3:208: Abandonment 742

Chapter 4:Causation

Article 4:101: General rule 747Article 4:102: Collaboration 773Article 4:103: Alternative causes 780

Chapter 5:Defences

Section 1: Consent or conduct of the person suffering the damageArticle 5:101: Consent and acting at own risk 789Article 5:102: Contributory fault and accountability 807Article 5:103: Damage caused by a criminal to a collaborator 837

Section 2: Interests of accountable persons or third partiesArticle 5:201: Authority conferred by law 841Article 5:202: Self-defence, benevolent intervention and necessity 847Article 5:203: Protection of public interest 862


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Section 3: Inability to controlArticle 5:301: Mental incompetence 872Article 5:302: Event beyond control 881

Section 4: Contractual exclusion and restriction of liabilityArticle 5:401: Contractual exclusion and restriction of liability 891

Section 5: Loss within Article 2:202 (Loss suffered by third persons as aresult of another’s personal injury or death)Article 5:501: Extension of defences against the injured person tothird persons 902

Chapter 6:Remedies

Section 1: Reparation in generalArticle 6:101: Aim and forms of reparation 907Article 6:102: De minimis rule 927Article 6:103: Equalisation of benefits 932Article 6:104: Multiple persons suffering damage 945Article 6:105: Solidary liability 952Article 6:106: Assignment of right to reparation 960

Section 2: CompensationArticle 6:201: Right of election 967Article 6:202: Reduction of liability 971Article 6:203: Capitalisation and quantification 977Article 6:204: Compensation for injury as such 986

Section 3: PreventionArticle 6:301: Right to prevention 991Article 6:302: Liability for loss in preventing damage 998

Chapter 7:Ancillary rules

Article 7:101: National constitutional laws 1005Article 7:102: Statutory provisions 1007Article 7:103: Public law functions and court proceedings 1010Article 7:104: Liability of employees, employers, trade unions andemployers’ associations 1019Article 7:105: Reduction or exclusion of liability to indemnified persons 1027

Annexes 1033

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Table of Contents

Foreword vii

Our Sponsors and Donors xi

Preface to this volume xiii

Text of Articles

EnglishNon-Contractual Liability Arising out of Damage Caused to Another 3

BulgarianИзвъндoiгoiвoiрна oiтгoiвoiрнoiст, прoiизтиЧЧаща oiт вреда,приЧЧинена другиму 16

DanishErstatning uden for kontrakt for skade, som tilføjes en anden 30

DutchBuitencontractuele aansprakelijkheid voor schade veroorzaakt aan een ander 42

EstonianTeisele isikule kahju tekitamisest tulenev lepinguväline vastutus 55

FinnishSopimuksenulkoinen Korvausvastuu Toiselle Aiheutetusta Vahingosta 67

FrenchResponsabilité extra-contractuelle pour dommage causé à autrui 80

GermanAußervertragliche Haftung wegen eines einem anderenzugefügten Schadens 93

Greek¯�ø�ı��Æ�ØŒ� �ıŁÅ ªØÆ �Å ÇÅ��Æ � ı �æ Œº�ŁÅŒ� �� Æ �ºº 107

HungarianSzerzodésen kívüli kártérítési felelosség 121

Chapter 1: Fundamental provisions Table of Contents

xx

ItalianResponsabilità Civile Extracontrattuale 134

PolishNiekontraktowa odpowiedzialnosc za szkode wyrzadzona drugiemu 147

PortugueseResponsabilidade civil extracontratual por danos causados a terceiro 161

RomanianRaspunderea extra-contractuala pentru prejudiciul cauzat altuia 175

SlovenianNeposlovna odgovornost zaradi skode povzrocene drugemu 189

SpanishResponsabilidad extracontractual por daños causados a otro 201

SwedishUtomkontraktuellt ansvar för skador som orsakats annan 215

Principles of European Law onNon-Contractual Liability Arising out of Damage Caused to Another

Chapter 1:Fundamental provisions

Introduction

A. The concept of non-contractual liability arising out ofdamage caused to another

1. Definition and purpose 2292. Prevention of impending damage 229

B. The structure of the existing laws of non-contractual liabilityarising out of damage caused to another

3. Differences in external representation 2294. Two strands 2305. The Common Law and the Scandinavian countries 2306. France, Belgium, Luxembourg, Spain 2307. Greece and Italy 2308. Portugal, Austria, Germany 2319. The Netherlands 231

10. Cyprus and Malta 23111. Eastern central Europe 232

Table of Contents Chapter 1: Fundamental provisions

xxi

12. The Baltic States 23313. “Pure economic losses” 233

C. Overview of the concept underpinning the text14. Non-contractual liability arising out of damage caused

to another, tort or delict 23415. Initial considerations 23416. No exhaustive list of protected interests and rights 23517. Accountability, damage, causation 23518. An all-embracing basic rule 23619. Seven chapters 23620. Interaction of the chapters 23621. Legally relevant damage 23622. A new expression 23723. Causation 23724. Remedies 23825. Liability for and without conduct falling short of a required standard 238

D. Relationship to other areas of the law26. Liability for crimes included 23827. Co-ordination with criminal law 23928. Tort law and contract law 23929. No independent obligations “between” contract and tort 23930. Concurrence of actions 24031. Tort law and unjustified enrichment law 24032. Tort law and negotiorum gestio law 24133. Tort law and property law 24134. Compensation under insurance law and performances rendered

by third parties 24235. Procedural law 242

Article 1:101: Basic rule

Comments

A. The general approach1. The basic rule in overview 2432. Terminology: “tort” and “delict” 2433. Other terms 2444. The injured person’s perspective 2445. Economic and non-economic loss 2446. Damage and reparation 2447. Reparation and compensation 2458. Grounds of accountability 2459. Grounds of accountability and causation 245

10. Omissions 245

Chapter 1: Fundamental provisions Table of Contents

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11. Burden of proof 24612. Natural and legal persons 24613. Liability under public law not covered 246

B. How the basic rule works14. A single cause of action 24615. Article 1:103(a) (Scope of application) 24616. No general clause 24717. No liability beyond the boundaries of the following provisions 247

NotesI. General 249II. Structures and formulations of the existing basic rules 249III. Wrongfulness as a prerequisite for liability 251IV. Fault, intention and negligence 254V. Strict liability 258VI. Burden of proof 260

Article 1:102: Prevention

Comments

A. Prevention of impending damage1. General 2652. Substantive law 2653. Prohibition of damage and compensation for loss averting damage 2654. Prevention and the law on non-contractual liability 266

B. Claimant and responsible person5. Claimant 2666. Responsible person 2667. Responsible person under strict liability 266

C. Essential elements entitling the claimant8. Impending damage 2679. Aggravation of damage 267

10. Protection of rights 26711. Accountability 26712. Restriction of the claim 268

D. Relationship to Article 5:202(Self-defence, benevolent intervention and necessity)

13. General 26814. Persons incapable of being accountable for their causation of damage 268

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NotesI. Basis of the right to prevent impending legally relevant damage 269II. Basis of the claim for damages in respect of expenditure incurred in

averting the damage 273

Article 1:103: Scope of application

Comments

A. Sub-paragraph (a)1. Article 1:101 (Basic rule) and Article 1:102 (Prevention)

not self-sufficient rules 274

B. Application to legal and natural persons (sub-paragraph (b))2. Legal persons as claimants 2743. Legal persons as responsible persons 2754. Bad organisation 2755. Legal persons under public law 2756. Imputation of knowledge and state of mind of legal persons 275

C. The relationship of the law on non-contractual liability to other areas ofprivate law (sub-paragraph (c) and sub-paragraph (d)); general

7. The principle of free concurrence of actions 2768. Preconditions of a situation of concurrent actions 276

D. Sub-paragraph (c)9. Scope of application 277

10. The law on non-contractual liability and the law of contract 27811. Priority of contract law in case of conflict 278

E. Sub-paragraph (d)12. The law on non-contractual liability does not oust other bases of claim 28013. No limitation to the law of obligations 28114. Special regimes relating to Article 1:103(d) 281

NotesI. Tort law and contract law: theories of concurrence of action 281II. In particular: liability in respect of self-contained damage in defective

products and buildings 288III. Tort law and other areas of private law 292IV. Legal persons 297

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Chapter 2:Legally relevant damage

Introduction

A. The concept of legally relevant damage1. Damage in specific contexts 2992. No list of complete torts 2993. Typical situations and a residual rule 2994. “Danno ingiusto” 2995. Overlaps 3006. Distinct manifestations of legally relevant damage 3007. Legally relevant damage as context-dependant 3008. Damage caused intentionally and damage caused negligently 300

B. The second chapter in overview9. Not a mere restatement 301

10. Questions not specifically addressed 30111. The order of the Articles 301

Section 1: General

Article 2:101: Meaning of legally relevant damage

Comments

A. The function of the rule1. Three pillars of legally relevant damage 3032. Indications of legally relevant damage 3033. Forms of legally relevant damage: loss and injury 3044. Loss includes non-economic loss 3045. Interests without a market value 3056. Quantum of loss 305

B. The flexibility of the rule7. Multiformity of life 3058. Constitutional issues 3059. Underlying issues not yet harmonised 305

C. Violation of a right otherwise conferred by the law (paragraph (1)(b))10. Scope of application 30611. Rights and interests worthy of legal protection 30712. Rights otherwise conferred by the law 30713. Purely contractual rights are, as a rule, excluded 308

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D. Violation of an interest worthy of legal protection (paragraph (1)(c))14. Significance of the provision 30815. Responsibility of the courts for the development of the law on

non-contractual liability 308

E. Paragraphs (2) and (3)16. Application to rights and interests worthy of legal protection 30917. The balancing process in ascertaining an interest worthy of legal protection 30918. The ground of accountability 30919. Nature of the damage 31020. Damage suffered in business competition 31021. Proximity of damage 31122. Reasonable expectations on the part of the injured person 31123. Considerations of public policy 312

F. Paragraph (4)24. General 31225. Significance of the distinction between economic and non-economic loss 31326. Economic loss 31327. Increase in debts 31328. Loss of income 31329. Other forms of economic damage 31330. Non-economic loss 31431. Pain and suffering 31432. Impairment of the quality of life 31433. Bereavement 31434. Other cases 31535. Overlaps 315

NotesI. The notion of damage 315II. Injury as damage 320III. Economic loss 323IV. Normative economic loss 327V. Non-economic loss 329VI. Non-economic loss of legal persons 336VII. Breach of absolute rights 337VIII. Particulars to certain rights 339

(1) Incorporeal rights of the personality 339(2) Post-mortal protection of personality rights 341(3) Further rights with personality aspects attached 342(4) Personality rights of legal persons 343

IX. Violations of relative rights 344X. Wrongful conception, wrongful birth and wrongful life 347

(1) Wrongful conception 348(2) Wrongful birth 351(3) Wrongful life 353


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XI. Interests worthy of legal protection 355XII. In particular: loss of chance 356

Section 2: Particular instances of legally relevant damage

Article 2:201: Personal injury and consequential loss

Comments

A. Matters not regulated1. Wrongful conception, wrongful birth and wrongful life 3592. Detrimental impact on the quality of life without personal injury 3593. Loss of chance 3604. Quantum of damages 3605. Type and mode of reparation 360

B. Damage to a person’s body or health6. Body and health distinguished 3607. Injury to the person 3608. Medical treatment; sports injuries 3619. Injury to health 361

10. Related interests worthy of legal protection 36111. Mental health 36212. Injury as such constitutes legally relevant damage 362

C. Loss13. Economic and non-economic loss 36314. Cost of health care 36315. Loss of income 363

D. Damage to the injured person and damage to third parties16. Personal injury 36317. Economic or non-economic losses of third persons 36418. Expenses of persons close to the injured person 36419. Reasonable expenses of carers 36420. Those close to the injured person 365

NotesI. General 365II. Injury to body and health 366III. Harm to mental health 367IV. Injury as such and “danno biologico” 371V. Recoverable consequential economic damage 372VI. Expenses of close relations 379VII. Recoverable consequential non-economic damage 383


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Article 2:202: Loss suffered by third persons as a result ofanother’s personal injury or death

Comments

A. General1. Overview 3892. Persons not covered 3893. Non-economic losses 3904. Structure and organisation of the rules 390

B. Non-economic loss of close relations in cases of personalinjury and death (paragraph (1))

5. Relation to Article 2:201(2)(b) (Personal injury and consequential loss) 3906. Policy consideration 3907. The circle of persons affected 3918. Claim by third parties for loss of maintenance in case of death only 391

C. Loss suffered as a result of another’s death (paragraph (2))9. Death as such not legally relevant damage 391

D. The claim of the deceased’s successors (paragraph (2)(a))10. Succession to subsisting claims of the deceased to reparation 39211. The limits of the claim 392

E. Funeral expenses (paragraph (2)(b))12. Funeral costs constitute legally relevant damage 39313. Reasonable funeral expenses 39314. Persons entitled to claim funeral expenses 393

F. Loss of maintenance (paragraph (2)(c))15. Loss of breadwinner 39316. Persons entitled to compensation 39417. “Statutory provisions” 39418. Time limits 394

NotesI. No civil liability for death as such 394II. Recoverability of non-economic damage to relatives in the case of

death or injury to the primary victim 395III. Survival of the deceased person’s claims 402IV. Funeral costs 406V. Loss of maintenance 409VI. Pecuniary and non-pecuniary claims of other third parties harmed 415


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Article 2:203: Infringement of dignity, liberty and privacy

Comments

A. General1. Purpose of the provision 4192. Horizontal effects of human rights 419

B. Infringement of human dignity (paragraph (1))3. Infringement 4194. Injury and loss 4195. Trivial injury 4206. Groups of cases 4207. Sexual harassment; Community law; DCFR II. – 2:101

(Right not to be discriminated against) 4208. Protection of minors 4219. The right to liberty 421

10. Arrest and imprisonment of innocent persons 42211. The right to privacy 42212. Persons of contemporary celebrity 42213. Protecting a public interest 422

C. Legal persons14. Application of the general rule on legally relevant damage 423

D. Posthumous protection of personality rights15. Post-mortem protection of personality and protection of one’s own rights 423

E. Defamation (paragraph (2))16. Defamation not specifically addressed in the Chapter 2, Section 2 42417. Criminal defamation 42418. Freedom of expression 425

F. Relation to other provisions in Chapter 2, Section 219. Overlaps 425

NotesI. Infringement of liberty 425II. The protection of incorporeal rights of personality 426III. The right to privacy 433IV. Defamation 438


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Article 2:204: Loss upon communication of incorrect information about another

Comments

A. General1. Liability for misinformation instead of protection of honour 4432. Protection of the media 4433. Personal honour need not be affected 4444. Persons 4445. Defences 444

B. Communication6. Communication and dissemination distinguished 4447. Internet communication 4458. Repetition of incorrect information 4459. Telling lies 445

C. Incorrect information10. Facts and value judgements distinguished 44511. Information about a person 44612. Burden of proof 446

D. The mental state of the responsible person13. Carelessness in relation to the incorrectness 446

E. Relationship to other provisions14. Article 2:203 (Infringement of dignity, liberty and privacy) 44715. Reporting suspicions 44716. Freedom of expression and the right to respect of dignity 44717. Article 2:205 (Loss upon breach of confidence) and Article 2:207

(Loss upon reliance on incorrect advice or information) 44818. Article 2:208 (Loss upon unlawful impairment of business) 448

NotesI. Liability for misinformation 448II. Distinction between assertion of fact and value judgment 454III. Reporting suspicions 459IV. Liability of internet service providers 463

Article 2:205: Loss upon breach of confidence

Comments

A. General1. Source of inspiration 4672. Relationship to other rules 467


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3. DCFR II.–3:302 (Breach of confidentiality) 4674. Relation to Chapter 3, Section 1 468

B. Communication of confidential information5. Communication 4686. Information 4687. Third parties 4688. Absolute and relative confidentiality 469

C. Legal consequences9. Reparation and prevention 469

Notes 470

Article 2:206: Loss upon infringement of property or lawful possession

Comments

A. General1. The Article in overview 4792. Accountability 4793. Loss as legally relevant damage 4794. Relationship to other regimes 4795. Remedies 480

B. Property rights and questions arising from property law6. Terminological difficulties 4807. Property rights 4808. Nuisance 4809. The owner-possessor relationship 481

10. Stolen goods 48111. Property rights in corporeal things 48212. Mere contractual or other relative rights excluded 482

C. Lawful possession13. Possession 48314. Detention included 48315. Lawful possession 48316. Several possessors 48317. Property law protection of possession remains unaffected 48418. Loss caused by infringement of lawful possession 484

D. Infringement19. The concept 48420. Defences 484


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E. The most important modes of infringement of another’sproperty right (paragraph (2)(b))

21. Damage to property 48522. Ineffectual products 48523. Self-contained damage in defective products and buildings 48524. Sale of land 48525. Disposition of the right 48626. Law of unjustified enrichment 48627. Interference with use 48628. Deprivation of use: infringement and loss distinguished 48729. Other disturbance of the exercise of the right 487

F. Loss30. General 48731. Depreciation in merchantable value 48732. Non-economic loss 48833. Deprivation of use (paragraph 2(a)) 48834. Cable cases 489

NotesI. Tort law protection of property rights 489II. Infringement of other rights in rem and of lawful possession or detention 498III. Loss, in particular, recoverability of non-economic losses and loss of use 504

Article 2:207: Loss upon reliance on incorrect advice or information

Comments

A. General1. Policy considerations 5102. European community law 5113. Relationship to contractual liability 5114. Relationship to Article 2:204 (Loss upon communication of

incorrect information about another) 511

B. The circle of protected recipients of the information5. Professional advice or information 5126. “The” recipient, not “a” recipient 512

C. Reliance7. Reasonable reliance 5128. Foreseeability of reasonable reliance 513


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D. Incorrect advice or information9. An inseparable composite term 513

10. Causation 51311. Accountability 514

Notes 514

Article 2:208: Loss upon unlawful impairment of business

Comments

A. Purpose and scope1. Purpose 5202. Prevention 5203. Scope 5204. Groups of cases covered 5215. Infringement of EU competition law 521

B. Unlawful impairment of profession or trade6. Profession or trade 5217. Exercise of a profession 5228. Impairment 5229. Unlawful impairment 522

10. Unfair competition to the detriment of competitors included 52211. Unfair competition to the detriment of consumers excluded 523

Notes 523

Article 2:209: Burdens incurred by the state upon environmental impairment

Comments

A. Pure ecological damage1. Directive 2004/35/EC on environmental liability 5292. Public and private law 529

B. Legally relevant damage and accountability3. Damage to individuals and damage to the society at large 5304. Environmental organisations 5305. Relationship to Article 3:206 (Accountability for damage caused by

dangerous substances or emissions) 5306. Article 3:207 (Other accountability for the causation of

legally relevant damage) 531


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C. Other matters7. Expenditure incurred by private persons 5318. Environmental impairment 5319. The State or designated competent authorities 531

10. Burdens incurred and loss in preventing damage 531

NotesI. Implementation of the Directive 532II. Collective damage relevant to the environment in other national law 532

Article 2:210: Loss upon fraudulent misrepresentation

Comments

A. The legally relevant damage1. General 5382. Relationship to Article 2:204 (Loss upon communication of incorrect

information about another) 5383. Article 2:207 (Loss upon reliance on incorrect advice or information) 5384. Loss 5395. Non-economic losses 5396. Damage and accountability 539

B. Fraudulent misrepresentation7. Misrepresentation 5408. ‘Fraudulent’ misrepresentation 5409. Intention to induce the recipient to make a mistake 540

Notes 541

Article 2:211: Loss upon inducement of non-performance of obligation

Comments

A. The Article in overview1. Inducing non-performance of an obligation 5462. Intention required 5463. Damage and accountability 5474. Loss 5475. The entitled claimant 547

B. Non-performance of obligation6. Contractual and other obligations 5487. Obligation ‘owed to the person sustaining the loss’ 548

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8. Breach of conjugal obligations 5489. Non-performance 549

C. Intentional inducement10. Intentional inducement 54911. Absence of legitimate interest 549

Notes 550

Chapter 3:Accountability

Introduction

A. General1. Three distinct grounds of liability 5572. “Fault” based liability vs. “strict” liability 557

B. Liability for intention or negligence3. Intention and negligence as generally recognised grounds of liability 5574. Accentuation of liability within liability for negligence 5585. Spain 5586. Hungary 5597. The Netherlands 559

C. Liability without intention or negligence: the current situation in overview8. The point of departure 5609. French and Belgian gardien liability 560

10. Italy 56011. Hungary 56112. Germany, Austria, Greece, Portugal, and Poland 56113. The Netherlands 56214. Nordic Countries 56215. England 562

D. International instruments and EU law16. International Instruments 56317. EU law 563

E. The concept of the text18. Accountability 56419. Intention and negligence 56420. Presumed negligence 56421. Minors 56522. Mentally disabled persons 565

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23. Liability without intention or negligence 56524. No general theory of liability without intention or negligence 56525. Vicarious liability 56626. Guiding considerations for the third Chapter’s second Section 56627. Specific issues and a general rule 56628. Liability confined to the causation of death, injury to

health and property damage 56729. Consequences of liability; ceilings, etc 567

Section 1: Intention and negligence

Article 3:101: Intention

Comments

A. General1. Intention as ground of accountability 5682. Natural and legal persons 568

B. Intention3. The need for a definition 5694. Intention to do the act required but not sufficient 5695. Conduct 569

C. Sub-paragraph (a)6. Deliberate causation of legally relevant damage 5697. Breach of a statutory rule of behaviour 5708. Omissions 5709. Causation 570

10. “Damage of the type caused” 570

D. Sub-paragraph (b)11. General 57112. Dolus eventualis 57113. Gross negligence 57214. “by conduct which that person means to do .. .” 57215. “.. . knowing that ... damage .. . will almost certainly be caused” 572

Notes 573


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Article 3:102: Negligence

Comments

A. General1. Scope 5802. “by conduct” 5803. Sources of duties of careful conduct 5814. Positive acts and omissions 5815. Persons under eighteen 5816. Mentally handicapped persons 5817. Physically disabled persons 582

B. Duties of care required by statute (sub-paragraph (a))8. Statutory provisions 5829. Criminal law provisions 582

10. Mere references to the duty to act with reasonable care 58211. Provisions reducing the standard of care 58212. Provisions requiring a higher standard of care 58313. Provisions particularising the general duty of care 58314. Adherence to the provision does not automatically exclude

liability in negligence 58315. Prohibitory norms and norms of care 58416. The purpose of the statute 584

C. The general duty of care (sub-paragraph (b))17. An objective standard 58518. Conclusive list of deciding factors impossible 58520. Organisational defects 586

NotesI. The concept of negligence in general 586II. Negligent omissions 592III. Breach of statutory duty 596

Article 3:103: Persons under eighteen

Comments

A. The Article in overview1. Matters covered 6012. Purpose 6013. Persons under eighteen 602


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B. Intention; violation of a statutory norm of conduct4. Intention 6025. Article 3:102 (Negligence) sub-paragraph (a) 603

C. The general standard of care for persons under eighteen (paragraph (1))6. A group-specific standard of care 603

D. Children below the age of seven (paragraph (2))7. No liability in principle for intentional or negligent infliction of damage 6048. Strict liability remains unaffected 604

E. Liability according to equity and fairness (paragraph (3))9. Purpose of the rule 604

10. Situations covered 60411. Subsidiarity of liability according to equity and fairness (sub-paragraph (a)) 60512. Liability to make reparation must be equitable (sub-paragraph (b)) 60513. Article 5:301 (Mental incompetence) 605

NotesI. Personal accountability of persons under eighteen 605II. Liability on equitable grounds 611

Article 3:104: Accountability for damage caused by childrenor supervised persons

Comments

A. General1. Subject matter of the rule in Article 3:104 6132. The regime of liability 6133. No strict liability 614

B. Liability for children under fourteen (paragraph (1))4. The risk covered by liability 6145. Various age brackets 6156. Persons liable 6157. Relationship to Article 3:103 (Persons under eighteen) 6158. Children as victims 615

C. Liability of institutions (paragraph (2))9. Policy considerations 616

10. The duty to supervise 61611. Institution or body 61612. Persons likely to cause personal injury or property damage 61613. Requisites personal to the direct injurer 617


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D. Defective supervision (paragraph (3))14. General 61715. Supervision of children 61716. Supervision of high-risk groups 618

NotesI. Liability of the individual who is required to exercise parental care 618II. Liability of other persons and institutions for damage caused by others 625

Section 2: Accountability without intention or negligence

Article 3:201: Accountability for damage caused by employeesand representatives

Comments

A. The Article in overview1. Instances of strict liability for others 6322. Liability of legal persons for their representatives 6323. Public sector bodies 6334. “Legally relevant damage ...” 6335. “.. . suffered by a third person” 6336. Defences 633

B. Employer’s liability (paragraph (1))7. Employees 6348. “Similarly engages” 6349. Temporary relief workers 636

10. In the course of employment or engagement (sub-paragraph (a)) 63611. Employees excluded from service 63712. Personal requisites of the person acting (sub-paragraph (b)) 63713. “.. . is otherwise accountable for the causation of the damage” 63714. Solidary liability 638

C. Liability of legal persons for their representatives (paragraph (2))15. Purpose of the rule 63816. Representative 638

NotesI. Employers’ liability and liability for independent contractors 638II. Liability of legal persons for their representatives 651


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Article 3:202: Accountability for damage caused by theunsafe state of an immovable 656

Comments

A. The legal policy1. Liability for the unsafe state of an immovable 6572. Liability is strict 6573. Policy considerations 6574. Legally relevant damage 6585. Public roads excluded 6586. Relationship to Article 3:206 (Accountability for damage caused

by dangerous substances or emissions) 6587. Relationship to contract law 6598. Defences 659

B. The risk embraced by liability9. Basis 659

10. Immovable 66011. “Other than to the immovable itself” 66012. “In or near the immovable” 66013. “Such safety as a person .. . is entitled to expect” 66014. The nature of the immovable (paragraph (1)(a)) 66115. The access to the immovable 66116. Costs 661

C. Persons liable17. Policy considerations 66218. Paragraph (2) 66219. Occupier and keeper 66220. Paragraph (3) 66221. Abandonment 663

Notes 663

Article 3:203: Accountability for damage caused by animals

Comments

A. General1. Strict liability for animals of all types 6732. Animals living in the wild excluded 6743. Legally relevant damage; relationship to contract law 6744. Defences 674


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B. Damage caused by animals5. Animal 6756. Causation by the animal 6757. Notion of keeper 6758. Examples 6759. Ownership 676

10. Children 67611. Several keepers 67612. Thieves 677

Notes 677

Article 3:204: Accountability for damage caused by defective products 686

Comments

A. General1. Council Directive 85/374 /EEC 6872. Detailed commentary unnecessary 6883. Restriction to consumer protection 6884. Burden of proof in relation to damage to business property 6885. No contractual exclusion or restriction of liability 6886. No punitive or aggravated damages 6887. Primary agricultural products and game 6888. Liability for development risks 6899. Policy considerations 689

10. Further considerations 68911. Application of the general provisions 69012. Duty to warn of development risks 69013. Deviations from the Directive; options left to discretion of Member States 690

B. Damage to consumer property14. Deviation from the Directive 69015. Policy considerations 690

C. Liability for non-economic losses; no maximum limit to liability16. Liability for non-economic loss and injury as such 69117. No maximum limit to liability 691

NotesI. Implementation of the Directive 691II. Liability for damage to property 692

(1) Damage to things intended for private use 692(2) Damage to business property 696


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III. Liability for non-economic loss 698IV. Liability for development risks 699V. Financial ceiling on liability 702

Article 3:205: Accountability for damage caused by motor vehicles

Comments

A. The concept of the rule1. Formulation of the principle; no detailed rules 7032. Article 3:207(a) (Other accountability for the causation of

legally relevant damage) 7033. Insurance 7044. Legally relevant damage 7045. Property damage 7046. Personal injury 7047. Defences 705

B. Details8. Motor vehicles and trailers 7059. Keeper 705

10. No special liability for drivers 70511. Traffic accident resulting from the use of the vehicle 70512. Causation 706

Notes 706

Article 3:206: Accountability for damage caused by dangeroussubstances or emissions

Comments

A. A strict regime for environmental liability1. Structure of the regime 7182. Relationship to Article 2:209 (Burdens incurred by the state

upon environmental impairment) 7183. Legally relevant damage 7194. Policy considerations 719

B. The persons liable5. Keeper of a substance and operator of an installation 7206. Private use excluded (paragraph (5)(a)) 7207. Other legal bases for a claim remain unaffected 720


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C. The risk within the scope of the strict liability8. Causation of damage by dangerous substances and emissions

(paragraph (1)(a)) 7219. Dangerous quantity 721

10. Relationship to Article 3:202 (Accountability for damage causedby the unsafe state of an immovable) 721

11. Dangerous attributes 72212. Realisation of the risk establishing liability (paragraph (1)(b)) 72213. Causation 72214. Substance (paragraph (2)) 72315. Emission (paragraph (3)) 72316. Installation (paragraph (4)) 72317. No failure to comply with statutory standards 72318. Other defences 723

Notes 724

Article 3:207: Other accountability for the causation of legally relevant damage

Comments

A. Policy considerations1. Wide-ranging national law on strict liability; international treaties 7362. Overview 7363. Legally relevant damage; national law 736

B. Details4. Sub-paragraph (a) 7375. Examples 7376. Sub-paragraph (b) 7377. Sub-paragraph (c) 738

Notes 738

Article 3:208: Abandonment

Comments

A. First sentence1. Purpose of the rule 7422. Abandonment 742

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B. Second sentence3. Animals 742

Notes 743

Chapter 4:Causation

Article 4:101: General rule

Comments

A. General1. Scope 7472. Policy considerations 7473. The term causation 7484. Causation by conduct 7485. Causation by omission 7486. Causation by a source of danger 7497. Vicarious liability 7498. Damage caused by animals and things 7499. Connection between legally relevant damage, attributive cause

and causation 75010. Special rules 750

B. Particulars11. Cause in fact and cause in law not distinguished 75112. No reduction to a “conditio sine qua non” formula 75113. Elements of assessment 75114. Break in the chain of causation 75215. Self-harm of the victim; contributory fault 75216. Causation of a legally relevant damage 75317. Burden of proof 75318. “Egg shell skull” (paragraph (2)) 754

NotesI. General theory of causation 755II. Founding liability and determining the ambit (limits) of liability 763III. Burden of proof 765IV. The “egg shell skull” rule 769

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Article 4:102: Collaboration

Comments1. Purpose 7732. Scope 7743. Relation to Article 4:103 (Alternative causes) 7744. Relation to Article 6:105 (Solidary liability) 7745. Collaboration 7756. Members of a group 7757. Participants 7758. Instigators 7759. Accessories 776

Notes 776

Article 4:103: Alternative causes

Comments1. Relaxing requirements for establishing the chain of cause and effect 7802. Policy considerations 7813. General requirements 7814. Different persons must be accountable 7825. The damage must be caused by one of two or more occurrences 7826. Defences 783

Notes 783

Chapter 5:Defences

Section 1: Consent or conduct of the person suffering the damage

Article 5:101: Consent and acting at own risk

Comments

A. Chapter 5 in overview1. The notion of defence 7892. Five Sections 7893. Further defences 790

B. Consent (paragraph (1))4. The basic principle 7905. The injured person 790

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6. Non-contractual liability and contract 7917. Consent, acting at own risk and contributory fault 7918. Consent 7919. Consent as a defence against purposeful conduct 792

10. Valid consent 79211. Lack of capacity 79212. Informed consent 79313. Illegality 79314. Benevolent interventions in another’s affairs 793

C. Acting at own risk (paragraph (2))15. The basic idea 79316. Systematic considerations 79317. Knowing the risk of damage of the type caused 79418. Voluntary exposure to and acceptance of the risk 794

NotesI. Consent 795II. Acting at own risk 801

Article 5:102: Contributory fault and accountability

Comments

A. General1. Contributory fault, contributory fault of auxiliary persons and

contributory sources of danger 8082. Reparation 8083. Contribution to the occurrence or extent of the damage 8084. Type of damage 8085. The mirror principle 8096. Exceptions 8097. Fault 8098. Children and mentally handicapped people 8099. Paragraph (2) 810

B. Contributory fault (paragraph (1))10. Fault contributory to the materialisation of the damage 81011. Reduction of liability 81112. Co-responsibility for the extent of the damage 811

C. Exceptions (paragraph (2))13. Insubstantial fault and causation 81214. Traffic accidents 81215. Policy considerations 81316. Gross negligence 813


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D. Extension of the mirror principle to the law of strict liability(paragraphs (3) and (4))

17. Contributory fault of employees 81318. Contribution of a source of danger 813

NotesI. Contributory fault in causing the damage 814II. The duty to mitigate damage 822III. Contributory fault in road traffic accidents 827IV. Reduction in liability where the ‘strict liability’ of the injured party

contributes to the cause of the accident 831

Article 5:103: Damage caused by a criminal to a collaborator

Comments1. Ex turpi causa non oritur actio 8372. Illegality 8373. Burden of proof 8384. Damage must be caused unintentionally 8385. Collaborator 8386. Reparation must be contrary to public policy 838

Notes 839

Section 2: Interests of accountable persons or third parties

Article 5:201: Authority conferred by law

Comments1. General 8412. Applicable to private persons only 8413. Relation to other defences 8414. Scope 8415. Authority 8426. Conferred by law 8427. Limits 842

Notes 842


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Article 5:202: Self-defence, benevolent intervention and necessity

Comments

A. Three grounds of defence1. Overview 847

B. Self-defence (paragraph (1))2. Protecting personal rights and interests and those of another 8473. Endangerment 8474. Reasonable protection 8485. Self-defence against children 8486. Putative self-defence and excessive self-defence 848

C. Benevolent intervention in another’s affairs (paragraph (2))7. Benevolent intervention as a defence within the framework of the

law on non-contractual liability 8498. Without breach of the intervener’s duties 849

D. Necessity (paragraph (3))9. Situations covered 849

10. Precedence of the interest defended over the legally protected interest 85011. Imminent danger 85012. Liability 85013. Reasonable compensation 850

NotesI. Self-defence 851II. Benevolent intervention 856III. Necessity 857

Article 5:203: Protection of public interest

Comments1. Purpose of the rule 8622. Protection of public interest 8623. Fundamental to a democratic society 863

Notes 863


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Section 3: Inability to control

Article 5:301: Mental incompetence

Comments

A. Policy considerations and overview1. Options 8722. The preferred solution 872

B. Mental incompetence3. Lack of insight 8734. Temporary lack of insight 8735. Instinctive reflex actions 874

C. Recompense according to equity and fairness6. Parallel comments 874

Notes 874

Article 5:302: Event beyond control

Comments

A. General1. Event beyond control as a defence in the framework of strict liability 8812. Accountability without intention or negligence 881

B. Event beyond control3. Notion 8814. Two elements 8825. Abnormal event 8826. ‘Not to be regarded as that person’s risk’ 8827. Relationship to contributory fault 883

Notes 883


xlix

Section 4: Contractual exclusion and restriction of liability

Article 5:401: Contractual exclusion and restriction of liability

Comments

A. Exclusion and restriction of liability1. Pre-emptive exclusion of liability 8912. Exclusion and restriction of liability 8913. Implied exclusion of liability 8914. Contractual exclusions 8925. Unilaterally imparted information 8926. Freedom of contract 8927. Basis 8928. Exceptions 893

B. No exclusion of liability for damage caused intentionally (paragraph (1))9. Policy considerations 893

10. Employers’ liability 89311. Line of demarcation with consent and acting at own risk 893

C. Exclusion of liability in cases of gross negligence (paragraph (2))12. Personal injury (sub-paragraph (a)) 89413. “Gross negligence” 89414. Other types of legally relevant damage (sub-paragraph (b)) 894

D. Product liability (paragraph (3))15. No contractual exclusion of liability 894

E. Paragraph (4)16. Exclusion of liability in cases of ordinary liability in negligence 89517. Unless contrary to statute 895

Notes 895

Section 5: Loss within Article 2:202 (Loss suffered by third persons as a resultof another’s personal injury or death)

Article 5:501: Extension of defences against the injured person to third persons

Comments1. Aim 9022. Examples 902

Notes 902

Chapter 6: Remedies Table of Contents

l

Chapter 6:Remedies

Section 1: Reparation in general

Article 6:101: Aim and forms of reparation

Comments

A. Chapter six in overview1. Reparation, compensation, prevention 9072. Overlap between reparation and prevention 9073. Relationship to Chapter 2 9084. Substantive law, not procedural law 908

B. The Article in overview5. Aim and forms of reparation 908

C. Restoration of the previous situation (paragraph (1))6. The principle of reparation 9087. Reparation in kind and full reparation 9098. No punitive damages 909

D. Damages in money or by other means (paragraph (2))9. General 909

10. Reparation not in money 90911. Forms of reparation not mutually exclusive 910

E. Economic total loss (paragraph (3))12. An exception to paragraph (1) 91013. Animals 910

F. Recovery of profit instead of compensation of loss (paragraph (4))14. Siphoning-off of profits 91115. Systematical issues 91116. Relationship to the law of unjustified enrichment 91117. Commercial trademark rights and copyright 91118. Right of choice 912

NotesI. Nature and extent of the compensation 912II. The injuring party’s gains as a basis for recovery 922

Table of Contents Chapter 6: Remedies

li

Article 6:102: De minimis rule

Comments1. Policy considerations 9272. Trivial damage 9283. Products liability 928

Notes 928

Article 6:103: Equalisation of benefits

Comments1. General 9322. Policy considerations 9333. Causation 9334. Article 7:105 (Reduction or exclusion of liability to indemnified persons) 9335. Several liable parties 9336. Case groups 9347. Kind of damage 9348. Examples 9349. Nature of the accountability 935

10. Performance by a third party 93511. Examples 935

Notes 935

Article 6:104: Multiple persons suffering damage

Comments1. Reparation to one person will also make reparation to another 9452. Damage and damages 9453. Reference to Book III 9464. Significance for the rules in this Book 946

Notes 947

Article 6:105: Solidary liability

Comments

A. Solidary liability of multiple liable persons1. Common European law 9522. Policy considerations 952

Chapter 6: Remedies Table of Contents

lii

3. Terminology 9524. Scope of application 952

B. Internal allocation of liability5. DCFR III 953

Notes 953

Article 6:106: Assignment of right to reparation

Comments1. General 9612. Policy considerations 9613. Moral reservations obsolete 9614. Assignability in specific cases 961

Notes 962

Section 2: Compensation

Article 6:201: Right of election

Comments1. General 9672. Property damage 9673. Other cases 967

Notes 967

Article 6:202: Reduction of liability

Comments1. A rule subject to policy debate 9712. No reduction of liability where damage is intentionally inflicted 9713. Grounds for and prerequisites of a reduction of liability 9714. The reduction clause in the overall system of these model rules 9725. Scope 9726. Extent of the reduction 972

Notes 973

Table of Contents Chapter 6: Remedies

liii

Article 6:203: Capitalisation and quantification 977

Comments1. The Article in overview 9782. Paragraph (1) 9783. Good reason 9784. Heads of compensation 9785. Procedural issues 9796. Paragraph (2) 979

Notes 979

Article 6:204: Compensation for injury as such

Comments1. Injury as such 9862. A new concept 986

Notes 986

Section 3: Prevention

Article 6:301: Right to prevention

Comments1. Prevention is better than cure 9912. Forms of prevention 9913. Paragraph (1) 9914. Reparation not an adequate remedy 9925. Paragraph (2) 992

Notes 993

Article 6:302: Liability for loss in preventing damage 998

Comments1. Fundamentals 9992. Systematic significance 9993. Reasonably incurred expenditure 1000

Notes 1001

Chapter 7: Ancillary rules Table of Contents

liv

Chapter 7:Ancillary rules

Article 7:101: National constitutional laws

Comments1. Chapter 7 in overview 10052. Article 7:101 1005

Notes 1006

Article 7:102: Statutory provisions

Comments 1007

Notes 1008

Article 7:103: Public law functions and court proceedings

Comments1. Relationship with DCFR I.–1:101(2) (Intended field of application) 10102. Person or body exercising public law functions 10103. Performing duties during court proceedings 1011

Notes 1011

Article 7:104: Liability of employees, employers, trade unions andemployers’ associations

Comments1. General 10192. Individual labour law 10203. Collective labour law 1020

Notes 1020

Article 7:105: Reduction or exclusion of liability to indemnified persons

Comments 10271. Channelling of liability 10272. Examples 1028

Notes 1028

Table of Contents Annexes

Annexes

Abbreviations 1035

Table of Codes and Statutes 1079

Table of Cases 1169

Table of Treaties and Enactments of the European Union 1189

Table of Literature Cited in Abbreviated Form 1193

Index 1249

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